Article Sep 8, 2016

Explainer: What you should know about the Equal Rights Amendment

The death this week of conservative activist Phyllis Schlafly has renewed discussion of her role in defeating the Equal Rights Amendment. Here is what you should know about the proposed amendment and why the once popular measure was rejected by the American people.

What was the Equal Rights Amendment?

The Equal Rights Amendment (ERA) was an amendment to the U.S. Constitution to clarify that men and women had “equal rights” throughout the United States. The first version, introduced into Congress in 1923, was the “Lucretia Mott Amendment,” which read: “Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.” That version of the amendment was introduced in every session of Congress until it passed in reworded form in 1972.

During most of those years, the ERA had attached to it the Hayden Clause which read: “Nothing in this Amendment will be construed to deprive persons of the female sex of any of the rights, benefits, and exemptions now conferred by law on persons of the female sex.” Many women’s rights groups and supporters, however, rejected this addition.

The second version, known as the “Alice Paul Amendment,” read, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” This version was first introduced in 1943 and was introduced in every session of Congress until it passed in reworded form in 1972.

The final version of the amendment had three sections:

  • Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

  • Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

  • Section 3. This amendment shall take effect two years after the date of ratification.

In 1972, this version passed both houses of Congress and was submitted to the state legislatures for ratification.

Which states ratified the amendment?

After a Constitutional amendment has been officially proposed, either by Congress or a national convention of the states, the Constitution requires that it then be ratified by three-fourths of the states.

Between 1972 and 1977 the following 35 states had ratified the amendment:

Hawaii (1972), New Hampshire (1972), Delaware (1972), Iowa (1972), Idaho (1972), Kansas (1972), Nebraska (1972), Texas (1972), Tennessee (1972), Alaska (1972), Rhode Island (1972), New Jersey (1972), Colorado (1972), West Virginia (1972), Wisconsin (1972), New York (1972), Michigan (1972), Maryland (1972), Massachusetts (1972), Kentucky (1972), Pennsylvania (1972), California (1972), Wyoming (1973), South Dakota (1973), Oregon (1973), Minnesota (1973), New Mexico (1973), Vermont (1973), Connecticut (1973), Washington (1973), Maine (1974), Montana (1974), Ohio (1974), North Dakota (1975), and Indiana (1977).

(Five states would later rescind their earlier ratification: Nebraska (1973), Tennessee (1974), Idaho (1977), Kentucky (1978), and South Dakota (1979).

By the time of the 1979 deadline, the amendment was still three states short of the required number needed for passage.

Has the amendment ever been reintroduced?

The ERA was reintroduced in Congress in 1982 and has since been put before every session of Congress since that time.

Which political party supported/opposed the ERA?

At various times in its history, both the GOP and the Democratic Party supported and opposed passage of the ERA.

In 1940, the Republican Party became the first national party to endorse the ERA. It would be added as a plank to the party’s platform in 1952, 1956, 1960, 1972, and 1976. But by 1980, due to the influence of conservative women within the party, the platform had changed: “We acknowledge the legitimate efforts of those who support or oppose ratification of the Equal Rights Amendment. We reaffirm our Party’s historic commitment to equal rights and equality for women.”

From the mid-1920s to mid-1940s, the ERA was opposed by many Democratic factions. Eleanor Roosevelt and most New Deal supporters opposed the ERA because they believed it would harm labor unions and the labor movement. The party adopted the ERA in 1944, but it did not receive wide support among Democrats until after the rise of the “second wave” feminist movement in the 1960s.

What stopped the ratification of the amendment?

Most historians agree that public sentiment about the amendment changed during the 1970s primarily because of constitutional lawyer Phyllis Schlafly and her “STOP ERA” campaign. (The “STOP” was an acronym for “Stop Taking Our Privileges.”)

Schlafly and her supporters were able to convince a significant portion of the American public that the ERA would lead to several negative consequences that conservative and religious citizens had not considered.

What was Schlafly’s argument against the ERA?

Schlafly’s campaign argued that rather than expanding the rights of women, the ERA would harm the interest of men, women, and children. Schlafly claimed that adoption of ERA would lead to all of the following:

  • ERA would take away women's traditional exemption from military conscription and from military combat duty.

  • ERA would take away the traditional benefits in the law for wives, widows and mothers. For example, she claimed it would be used to strike alimony laws and prevent mothers from being given chief consideration in custody cases.

  • ERA would give enormous power to the Federal courts to decide the definitions of the words in ERA, "sex" and "equality of rights," thereby broadening abortion and homosexual rights.

  • ERA would give Congress the power to legislate on all areas of law which include traditional differences of treatment on account of sex: marriage, property laws, divorce and alimony, child custody, adoptions, abortion, homosexual laws, sex crimes, private and public schools, prison regulations, and insurance.

  • ERA would force all schools and colleges, and all the programs and athletics they conduct, to be fully coeducational and sex-integrated.

  • ERA would mean the end of single-sex colleges.

  • ERA would force the sex integration of fraternities, sororities, Boy Scouts, Girl Scouts, YMCA, YWCA, Boys State and Girls State conducted by the American Legion, and mother-daughter and father-son school events.

  • ERA would risk the income tax exemption of all private schools and colleges that make any difference of treatment between males and females, even though no public monies are involved. (“ERA would apply the same rules to sex that we now observe on race, and it is clear that no school that makes any racial distinctions may enjoy tax exemption.”)

  • ERA would eliminate veterans’ preference, since most veterans are men.

  • ERA would require “unisex insurance,” that is, would prohibit insurance companies from charging lower rates for women, even though actuarial data clearly show that women, as a group, are entitled to lower rates both for automobile accident insurance and life insurance.

  • ERA would put abortion rights into the U.S. Constitution, and make abortion funding a new constitutional right. (Abortion supporters had used state-level ERA language to justify state funding of abortions.)

  • ERA would enshrine homosexual and transgender rights into the U.S. Constitution, because the word in the Amendment is “sex” and not “women” (i.e., the courts would define the word “sex” to include “orientation”).

  • ERA would legalize the granting of marriage licenses to homosexual couples.