Could 2019 Be the Year of the ERA?

In 1972, both the Senate and the House passed the Equal rights Amendment and sent it to the states for ratification. Requiring the approval of thirty-eight states, it received only thirty-five before the Congressionally-mandated deadline for ratification expired. Thirty-six years later, the ERA is still not part of the Constitution, but a wave of women running for office could prompt a new push for ratification.

New Hampshire Senator and former Governor Maggie Hassan takes pride in the fact her home state was one of the first to approve ratification of the Amendment in 1972. “In New Hampshire, we understand that we are strongest when we fully include the talent and energy of all of our people, and in the U.S. Senate I am continuing that tradition by working to ensure that everyone who works hard has the opportunity to get ahead and stay ahead,” Senator Hassan said. “New Hampshire ratified the Equal Rights Amendment in 1972, and I proudly support a joint resolution removing the deadline for the ratification of the Equal Rights Amendment, so that additional states can follow our lead. Women are more than half of our nation’s population, and our constitution should explicitly ensure that they have equal rights.”

On its surface, the Amendment seems as though it should be easy to pass. Its core passage reads:

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

There is none of the twisting language of the Second Amendment. Its intent and implications are clear. And yet, it continues to face fierce opposition from some women and men more than a generation since it first passed through Congress. Subsequent attempts to adopt the Amendment have not gained enough momentum to be successful.

However, proponents of the ERA believe this year’s midterm Congressional elections will change that.

As of early December, 369 women have started campaigns for the House, or have stated their intent to run. Previously, there have never been more than 300 women running in any given Congressional election. In fact, in 2018 Democratic candidates alone will beat the previous record for women seeking office across all parties. And with a wave of candidates, it is conceivable that there will be a wave of women entering office with passage of the ERA on their minds.

Senator Tammy Duckworth (D-IL) lauds the increase in women running for Congress. “It is important for Congress to reflect the diversity of background, of experience and of physical ability of our country,” she said in a statement. “That’s why I’ve been thrilled to see so many women become more involved in the political process and decide to run for public office over the past year and it’s why I have been encouraging women, wherever I go, to stand up and make their voices heard. Remember, Congress is supposed to be a representative body – but if we don’t look like the country that we represent, then it’s hard to effectively address the concerns of all Americans.

Maryland Congressional candidate Allison Galbraith hopes a new Congress will push for the ERA. “We are long overdue for the Equal Rights Amendment and I would absolutely support its passage if elected. The fact that we don’t have equal rights in 2018 is ludicrous, and the current administration’s perpetual attacks on the legislation and executive orders protecting women’s rights demonstrates that [the ERA] is still desperately needed,” she said.

Many women running for Congress see a direct tie between the #MeToo movement and the need for adoption of the ERA. Karen Mallard, an educator and Democrat hoping to unseat Rep. Scott Taylor (R-VA) in Virginia’s Second Congressional District is among them. “The #MeToo movement clearly demonstrated the need for Constitutional protection for gender equality,” she said. “While there are laws against discrimination, there is no constitutional basis for protection… Women like me aren’t sending a wave, we’re sending a tsunami. We are standing up, speaking out, and fighting back against being abused, marginalized, and underrepresented in our government. Passing the ERA would send a powerful message and provide real protection.”

This is a sentiment shared by activist and actor Tara Strong, who lends her time and talents to several women currently running for Congress. “It’s hard to believe in this day and age that we need an Equal Rights Amendment, or that one would be so hard to pass,” she said. “But we do, and I’m so proud of the women who are working hard to ensure its passage.”

There certainly appears to be momentum building for passage of the ERA. In 2017, Nevada became the thirty-sixth state to ratify the Amendment, and pro-ERA advocacy nonprofit The Alice Paul Institute is undertaking a two-state strategy for ratification according to its website. What remains unclear, however, is what the legal status of the ERA would be if ratified outside of the approval window Congress imposed.

Some believe that Congress lacks the Constitutional authority to impose a ratification deadline. Others that because the Constitution does not prohibit Congress from imposing a deadline there is no legal bar keeping it from doing so. It is probable that even a successful effort to get the final two states to ratify the ERA would ultimately land the Amendment in the Supreme Court, where its prospects are uncertain.

Perhaps the clearest route to adoption lies in a renewed passage of the ERA through Congress. Without a change in Congressional leadership, this is likely to be an uphill battle. Nearly a year ago, Rep. Jackie Speier (D-CA) introduced a H.J.Res. 53, which would have removed the original Congressional deadlines for ratification. However, in February of 2017 the resolution was referred to a subcommittee, where no further action has been taken.

Jennifer Neahring, a candidate for Oregon’s Second Congressional District, hopes to have the opportunity to advance the Amendment. “Like many principles we generally agree on in this country, we take [equal rights] for granted. The mere fact that the Equal Rights Amendment was never ratified in 15 states tells us that we risk losing the gains we have made in gender equality,” she said. “The rise of women involved at the highest level of politics gives hope that the constitution can soon clearly state what the Declaration of Independence did not - that all men and women are created equal.”

Jess Phoenix, a Democrat running for the California seat currently occupied by Republican Rep. Steve Knight, agrees. “The ERA is just as necessary now as it has been throughout history. Equality, while largely seen as a good idea, shouldn't remain an idea. It needs to be enshrined in the law of the land. I'm optimistic that it'll pass soon, since so many more people are now acutely aware that gender-based discrimination is still a problem.”

Phoenix isn’t ready to stop with the ERA, however. “Once we pass it, let's work on legislation treating all sexual orientations and gender identities equitably, too. Equal Rights means equity for all people, no exceptions,” she added.

Senator Hasson also wants to achieve specific goals not explicitly laid out in the Amendment. “I am encouraged that we now have a record number of women serving in the United States Senate, but we know that there is much more work to do to ensure that all Granite Staters and Americans are treated equally and fairly. As Governor of New Hampshire, I was proud to sign New Hampshire’s Paycheck Fairness Act into law to ensure that women earn equal pay for equal work and to have cosponsored the Paycheck Fairness Act in the Senate. I will continue working with my colleagues on both sides of the aisle to further this progress at a federal level.”

Maryland’s Galbraith, in discussing real-world applications of the Amendment adds, “There is zero reason we should have to listen to our Congressmen debate whether women should pay more for health insurance, or — if they managed to repeal ACA — for women to worry they may have to give up their businesses and return to an employer-based job, or get married, just to get a health insurance policy that doesn’t cost 30-80% more and does not include maternity care. All of this simply because they are theoretically capable of bearing a child. With ERA, it would be unconstitutional. We’d have the same level of legal recourse for sex discrimination as there is for religious or racial discrimination. It’s true that the issues may not end right away, but at least we’d be able to do something about it, under the law, without such a steep uphill battle.”

Galbraith also highlights what is perhaps the strongest selling point for the current Congress: “I believe [what] that really gets lost on people is that the ERA would help [men] too; men also experience sex discrimination. With ERA, men would have equal rights in paternity leave, child custody, career, insurance, the draft, etc. All of society would benefit.”

Perhaps, after the 2018 elections, the calculus will change. Until then, these women will continue their campaigns for their vision of an America that brings true equality for all of her citizens.

Contributing Editor: Ben Jackson

Ben Jackson is a writer and father of a chronically ill teenager who somehow still likes him. His non-fiction and opinion pieces have appeared in Patch Media, WBUR's Cognoscenti, and the Penmen Review. His fiction and poetry has been published in New Millennium Writings, The Legendary, 50 Word Stories, and anywhere else he can con an editor into buying his work. He lives in Natick, Massachusetts with his daughter.

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