An amendment takes Congress back in time

Two strategies before Congress seek to ratify a constitutional amendment that was introduced in 1923. The core of the Equal Rights Amendment (ERA) lies in its statement, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” The ERA has stumbled for decades. One reason: depending on how “equal rights” are defined, the amendment becomes controversial. It has come to include demands for class entitlements or legal privileges rather than a focus upon protecting traditional and individual rights. For example, the ERA is increasingly construed as mandating greater “pay equity.”

The strategies before Congress have little chance of advancing through the Republican-dominated House, as activists know. Nevertheless, the ERA has new life largely because the GOP’s alleged “war on women” is an election issue in which Democrats see advantage. Feminist organizations nationwide are rallying their “troops,” and the media is noticing. For example, a Sept. 12 headline in USA Today read “Fight to ratify Equal Rights Amendment draws new interest.” The rallies and headlines are effective megaphones.

What are the two strategies?

{mosads}The first is called “three state.” It is embodied by S.J. Res. 15, which was introduced in the Senate on May 9, 2013; its House parallel is H.J. Res. 113. Both are in committee.

Passing a constitutional amendment requires a two-thirds majority in Congress and ratification by 38 state legislatures. The last major ERA push, in 1982, failed because only 35 states ratified by the deadline. The National Council of Women’s Organizations explained the new strategy. “[I]t is likely that Congress has the power to adjust or repeal the previous time limit on the ERA, determine whether state ratifications … are valid, and accept the ERA as part of the Constitution after three more states ratify.” The argument for this congressional power draws upon the 1992 passage of the 27th amendment; the “Madison Amendment” on Congressional pay raises was ratified over 202 years after Congress submitted it to state legislatures.

Since the Illinois State Senate has already ratified and the House may do so as soon as November, only two more state ratifications would be necessary.

The second strategy is “fresh start.” It is embodied by H.J. Res. 56, which was introduced into the House on August 1, 2013; its Senate parallel is S.J. Res. 10. Both are in committee. These bills would restart the ERA process with a need to secure 38 ratifications but without a deadline. Fresh start faces stiff odds.

But, again, the greatest obstacle is the Republican House. The USA Today article explained two of the reasons:One is more a conflict on issues, the other is also a conflict of definition.

USA Today quoted an advocate who was heading to a rally the next day. “My reproductive rights should be protected and no one should have control over that but me.” This refers to the Supreme Court’s June ruling in Burwell v. Hobby Lobby that specific types of business did not have to provide free insurance for birth control under ObamaCare if they had religious objections. Republicans widely view the Hobby Lobby decision as a victory because reproductive rights exemplifies an issue in deep conflict.

USA Today continued. “Pay equity is another factor driving renewed enthusiasm. … Women on average are paid 77 cents for every dollar men are paid, according to the ERA Coalition.” Republicans back economic fairness for women but they tend to view pay equity as a massive intrusion into the marketplace in order to impose distributive justice. They view it as egalitarianism, rather than equality of rights.

Irony is at work here. Historically, the Republican Party’s 1940 platform supported the ERA, upon which the party was basically united. The Democratic platform did not include the ERA until 1944, and the party was deeply divided for decades. Historian David Frum explained a key reason in his 2000 book How We Got Here: The ’70s. Many Democrats and labor unions believed the amendment would obsolete protective labor legislation for women.

At the 1980 GOP convention, a bitter conflict erupted between feminists and social conservatives; the ERA was dropped from the platform. Some of the conflict arose from deep disagreements on specific issues. But, by 1980, another factor loomed. A new definition of “equal rights” had emerged from the feminist movement and was dominating debate. It was a liberal definition that called for more, and not less, government involvement in the workplace and home.

In short, the Republican-Democratic ERA divide rests as much on differing definitions of equality as it does on specific issues.

McElroy is a research fellow at the Independent Institute.