“Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

Never have 24 simple words caused so much controversy about the relationship between the sexes and the rightful place of women in society. 

96% percent of Americans believe women and men should be guaranteed equality in the U.S. Constitution.

72% believe it already does. 

So how is it possible that women — who make up 51% of the U.S. population, are still not protected by the U.S. Constitution? 

A Brief Tour of Feminism

For almost two centuries in the U.S., women have been coming together to advocate for legal reforms to improve their lives. This movement has not been monolithic, and it has not been continuous. It has been marked by periods of division and unity, advancement and backlash, optimism and despair.  Yet there is no doubt that women are better off today than they were when this country was founded. Today’s feminists stand on the shoulders of the pioneers who came before us, paving the way for women to be treated with more dignity and respect — if not true equality.

The First Wave

Seneca Falls ConventionIn the beginning, women were not “people” recognized by the U.S. Constitution. They could not vote or serve on juries. They could not own property, enter into contracts, or dispute abusive husbands. They were essentially servants to their husbands and had no right to education or a career outside the home. These intolerable conditions ushered in the First Wave of feminism—breaking down barriers to women’s full participation in the civil, political, and economic realms of society. First Wave feminists had a dream that women should be able to pursue happiness and satisfaction in their lives. Their demands were laid out in the Declaration of Sentiments and Resolutions at the 1848 Convention at Seneca Falls, which declared that “all men and women are created equal.”

With the adoption of the Fourteenth Amendment to the Constitution after the Civil War, women believed that they had finally been recognized as “persons” and “citizens” under the Constitution. They pushed courts to interpret the 14th Amendment to provide them with the right to vote and the right to pursue a profession. However, these dreams were dashed as one court after another decided that the 14th Amendment did not entitle women to vote (Susan B. Anthony) or enter the legal profession (Myra Bradwell). 

By the time the Nineteenth Amendment passed in 1920, almost a century after the Seneca Falls Convention, First Wave feminists had made enormous progress in securing formal equality for women. In addition to voting rights, they got legislation passed to protect their property rights and their right to contract. They also pursued legislation to protect women and children in the workplace, from physical and sexual abuse at home and at work, and to secure the right to organize. Most historians view the period following the victory for women’s suffrage in 1920 as the beginning of a fallow period in the legal reform movement, until it was picked up again by the Second Wave in the 1960’s and 1970’s. Women today stand on the shoulders of the pioneers who fought for the right to be equal persons and citizens under the law. 

A Short History of the ERA

The Equal Rights Amendment was first proposed in 1923 and was subsequently reintroduced in every Congressional session for 50 years. On March 22, 1972, the ERA finally passed the Senate and the House of Representatives by the required two-thirds majority and was sent to the states for ratification. 

However, resistance to the amendment soon emerged, organized by Phyllis Schafly, a conservative political activist. Schafly formed a group called STOP ERA, or “Stop Taking Our Privileges, Equal Rights Amendment.”

She warned women that if equal rights were enshrined in the Constitution, the heterosexual world order would collapse. Morality would fall by the wayside and women would be at risk of losing their femininity and the opportunities presented by marriage. She argued that if the amendment passed, women would be forced to go to war, would lose their right to child support and alimony, and society would fall apart. 

Phyllis Schafly opposing ERA

Warren K. Leffler [Public domain], via Wikimedia Commons

At the end of the day, Schafly prevailed. An original seven-year deadline was extended by Congress to June 30, 1982. When this deadline expired, only 35 of the necessary 38 states (the constitutionally required three-fourths) had ratified the ERA. 

The ERA has been reintroduced into Congress every year since 1982, but has never been voted on again. 

Recent Developments

In recent years, there has been a resurgence of interest in the ERA. In 2017, Nevada became the first state since 1982 to ratify the amendment. Illinois signed on in May 2018.  That leaves only one more state needed out of the 13 unratified states. In 2019, Republicans in Virginia blocked momentum to ratify. There are still active movements in Virginia, Arizona, North Caroline, and Florida. Once the final state ratifies the ERA, the fight will center around eliminating the 1982 ratification deadline set by Congress. 

In April 2019, Congress held its first hearing on the ERA in 36 years. There are bills pending in both the House and the Senate to eliminate the previous ratification deadline. Even if that happens, the battle is likely to end up in court. There are five states who have voted to rescind their previous ratifications, and anti-ERA activists continue vocal opposition based on their fear that passage of the ERA would automatically strike down all abortion restrictions.