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ERA Back From the Grave?

“It’s been an especially rough few years for women in America,” John Oliver began his HBO show, Last Week Tonight, on Sunday, June 10th.  “Yeah, no shit, Zazu.”

 

In his highly-charged rant, Oliver reminded viewers that Pres. Donald Trump’s two-plus years in office have been a terrible period for women.  He and his administration have led the charge against a woman’s right to terminate an unwanted pregnancy; Congressional Republicans scuttled the Violence Against Women Act and weakened Title IX protections; and he appointed two conservatives to the Supreme Court, most notably Brett – “I like beer” – Kavanaugh.

Oliver reminded viewers that June 4, 2019, marked the 100th anniversary of adoption of the 19th Amendment granting women the right to vote.  He also noted that the 14th Amendment (adopted in 1868) granted citizenship to former African-American slaves: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

Oliver spent the rest of the show reminding viewers that in the 1980s the Equal Rights Amendment (ERA) was almost adopted.  He noted that following the 1920 adoption of the 19th Amendment granting women the right to vote, the original ERA was crafted by Alice Paul of the National Women’s Party and introduced in Congress in 1923.  A half-century later, in 1970, the ERA was re-introduced in Congress and, on October 12, 1971, the House approved it by a vote of 354–24; five months later, on March 22, 1972, the Senate followed by a vote of 84–8. The approved amendment was then sent to the states for ratification.

Oliver stressed that the ERA makes legal, explicit, what is taken-for-granted but is actually questionable – that women are legally equal to men.  He stressed that as of June 2019, it needed only one more state’s approval to become the 28th Amendment.

The proposed ERA declares “equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex.”  Oliver was rightly worried that conservative Supreme Court Justices, following in the fundamentalist footsteps of Justice Antonin Scalia, might find that neither the 14th nor the 19th Amendments protects the legal equality of women.  Scalia famously opined in 2011, “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.”

One of the first actions taken by the Democrats when they took control of the House of Representatives in January 2019 was an effort to secure the ERA’s adoption.  The effort involves two critical issues: (i) to resume the ratification process and (ii) to remove the decades-old deadline for ratification.

In the House, the bipartisan effort to restart the amendment’s ratification processwas led by Reps. Carolyn Maloney (D-NY) and Tom Reed (R-NY); Rep. Jackie Speier (D-CA) introduced a joint resolution to remove the ratification deadline.  In the Senate, Sens. Ben Cardin (D-MD) and Lisa Murkowski (R-AK) introduced a companion joint resolution to remove the ratification deadline.

In April, the House Judiciary Committee held the first congressional hearings on the ERA in more than 35 years.

According to many legislators, ERA ratification needs the passage of the two critical congressional actions and approval by one more state for it to be adopted.  With Trump in office and Republicans controlling the Senate, it’s a long shot as to whether this will happen.

***

In ’72, following the House’s and Senate’s approval of the proposed amendment, the ERA was sent to the states for ratification.  Among the planks of the 25-point plan were support for ERA ratification; federal support for childcare; equal pay and equal access to credit for women; end to sexism in school curricula; and, most controversial, support for abortion and lesbian civil rights.

Long forgotten, it wassupported by Pres. Richard Nixon, Gerald Ford and Jimmy Carter; the A.F.L.-C.I.O., the Teamsters, the National Education Association and the League of Women Voters backed it; popular female celebrities like Patty Duke, Ann Landers, Marlo Thomas, Carol Burnett and Jean Stapleton (Edith on All in the Family) championed it; and numerous women’s magazines, including RedbookGood Housekeeping and Cosmopolitan, promoted it.  Within twelve months, 30 states ratified the ERA. Nevertheless, on June 30, 1982,the ERA failed to be ratified and, in that failure, today’s culture wars were launched.

The campaign to defeat the ERA was led by Phyllis Schlafly.  She and her husband, Fred, were very active in the anticommunist movement; they set up a grass-roots Catholic anti-communist foundation and were involved with the John Birch Society.  She was deeply upset by the Supreme Court’s 1962 ruling, Engel v. Vitale, that banned state-sponsored prayer in public schools and organized a grass-roots campaign composed of mostly Christian women in protest.  She was a strong supporter of Barry Goldwater’s (R-AZ) ’64 presidential bid and, in ’64, Schlafly’s self-published A Choice Not an Echo, a rousing endorsement of Goldwater that sold 3 million copies.

Schlafly strongly opposed Pres. Richard Nixon’s support a civil-rights plank in the Republican Party’s platform calling for “aggressive action to remove the remaining vestiges of segregation or discrimination in all areas of national life.” Upset by inherent sexism of the Republican Party, she protested: “The Republican Party is carried on the shoulders of the women who do the work in the precincts, ringing doorbells, distributing literature, and doing all the tiresome, repetitious campaign tasks.”  And added, “Many men in the Party frankly want to keep the women doing the menial work.”

In the wake of the ERA passage, Schlafly formed STOP-ERA (i.e., Stop Taking Our Privileges) and its defeat owes much to her political genius.  “I believe in equal pay for equal work,” Schlafly insisted. “The claim that American women are downtrodden and unfairly treated is the fraud of the century. The truth is that the American woman has never had it so good. Why should we lower ourselves to ‘equal rights’ when we already have the status of special privilege?”  She blasted the emerging second-wave feminist movement:

Many women are under the mistaken impression that “women’s lib” means more job employment opportunities for women, equal pay for equal work, appointments of women to high positions, admitting more women to medical schools, and other desirable objectives which all women favor. … But all this is only a sweet syrup which covers the deadly poison masquerading as “women’s lib.”

Schlafly concluded, “The women’s libbers are radicals who are waging a total assault on the family, on marriage, and on children.”

Schlafly and other conservative critics raised questions that contributed to the ERA’s ultimate failure to be adopted. They ranged from the status of women in society (e.g., second-class citizens) to women’s roles in society (e.g., motherhood, breadwinner and divorce); from unacceptable “private” practices (e.g., abortion, homosexuality and same-sex marriage) to restricted social practices (e.g., military services and gender-specific bathrooms); and from jurisdictional issues (e.g., state vs federal jurisdiction, personal vs private matters) to constitutional concerns (e.g., whether women’s equal-rights was addressed by existing legislation, the 14th Amendment, known as “de-facto ERA”).

Equally critical, Schlafly built a powerful grassroots movement that, by early-73, boasted STOP-ERA groups in 26 states. These groups were made up of homemakers, mothers and working women who felt threatened by the proposed amendment. Among other groups that opposed the ERA were the National Right to Life Committee (NRLC), originally established by National Conference of Catholic Bishops; Feminists for Life (Ohio); Women Who Want to be Women (Texas); the Power of Women (POW) (Wisconsin); Humanitarians Opposed to Degrading Our Girls (HOTDOG) (Utah); Happiness of Womanhood (HOW) (Los Angeles: and still other groups with names like Feminine Anti-Feminists, GiGi Gals Galore Against the ERA, and Winsome Wives and Homemakers.

The anti-ERA movement drew upon women activists who participated in local elections, campaigned for conservative candidates and who had strong personal networks.  Most importantly, many of these women had gained organizational, speaking and writing skills working in their local churches.  Schlafly conducted workshops with local groups on debating and testifying at public hearings.  She used herself as a model for how to act in public, stressing good grooming, suggesting what cloths — dresses, not slacks — and make-up to wear, what worked best on TV and to be “poised and smile when attacked.” She encouraged followers to arrive in state capitols bearing gifts, most often home-made baked goods, for legislators.

Political tensions mounted in the mid-70s in the wake of two Supreme Court decisions. In ’73, the Court granted women the right to terminate an unwanted pregnancy.  In ’74, the it ruled — in Bob Jones University v. Simon— that the IRS could revoke the university’s tax-exempt status for practicing “racially discriminatory admissions policies” towards African-Americans. In ’75, the Stanton v. Stanton decision overturned a Utah law that defined the age of adulthood for males at 21 and for female at 18.

In January ’77, Dade County, FL, passed an ordinance prohibiting discrimination based on sexual orientation in employment, housing and public accommodation.  Many were outraged, notably Anita Bryant, a Miss America runner-up and celebrity singer turned state orange-juice promoter, who organized Save Our Children, a political coalition to overturn the ordinance. Embracing points championed by Schlafly, Bryant argued that because homosexuals could not reproduce, they had to recruit children to promote their “lifestyle.”  On April 16, 1977, tensions came to a head when a pro-ERA activist, Aron Kay, hit Schlafly in the face with a pie.

Of June 30, 1982, the ERA failed to be ratified.  That evening Schlafly stood proudly at the center of the grand ballroom of Washington, D.C.’s, Shoreham Hotel celebrating the ERA’s defeat with 1,400 supporters.  Decked out with diamond earrings, a string of pearls and a gem-studded gold eagle brooch pinned to her blouse, she glowed: Victory was hers! Standing on stage and stage in her celebration stood Sen. Jesse Helms (R-NC) and her gay son, John, a piano player, the evening’s musical accompanist.

***

Will the ERA be adopted this time around?  Calls for its support will likely increase, especially among Democrats, as the 2020 election draws closer.  And it wouldn’t be a surprise if the Democratic presidential candidates were asked their positions on ERA adoption at a public debate.

However, its chances seem slimmer today than it did in 1982.  No less a conservative puffer then George Will has downplayed its need or relevance.  Opining in The Washington Post, he mocked it accordingly:

Karl Marx was no more mistaken than usual when he said that historic people and events appear twice, first as tragedy, then as farce.  Today’s advocates of a musty fragment of the 1970s, the Equal Rights Amendment, are demonstrating that something that begins as farce can reappear as tragedy, because abuse of the Constitution is tragic. …

In 1972, there were 13 women in the House and two in the Senate. Today there are 90 in the House and 23 in the Senate, reflecting 46 years of legal and social changes that a prompt ratification of the ERA would not have hastened and that consignment of the ERA to the attic of 1970s nostalgia — hip-hugging bell-bottoms, etc. — will not impede.

To succeed, the ERA needs to overcome two major obstacles.  The first involves a major Congressional challenge – the deadline for ratification needs to up-dated.  This seems especially difficulty as more conservative, mean-spirited Republicans control the Senate and the White House than in the ‘70s.

The second involves securing the final state ratification of the proposed amendment.  There are 13 hold-out states — Alabama, Arkansas, Arizona, Florida, Georgia, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Utah and Virginia.  Any one might flip but none are sure bets.  In March 2019, the ERA effort in Arizona failed, the third year in a row the Republican-controlled legislature refused to allow a vote on the ERA.

One can only wonder if a successful campaign for the final passage of the ERA might occur in 2023, a century after it was first proposed. This might happen if the Democrats control both Houses of Congress and the White House.

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David Rosen is the author of Sex, Sin & Subversion:  The Transformation of 1950s New York’s Forbidden into America’s New Normal (Skyhorse, 2015).  He can be reached at drosennyc@verizon.net; check out www.DavidRosenWrites.com.

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