We Still Need the ERA

Earlier this month, Virginia lawmakers forged a turning point in women’s history that was a century in the making. Because Democrats there flipped both houses of their state legislature in 2018, they were finally able to ratify the Equal Rights Amendment. The ERA was three states short when it failed to meet its 1982 deadline for passage, which required 38 states’ approval. Nevada and Illinois both recently ratified the provision, so the Amendment is poised to enter a new phase of national scrutiny and debate.

To many older feminists, the ERA remains the unfinished business of the 1970s. Today’s gender justice activists should expect to battle the same coalition of corporations and social conservatives that defeated their predecessors in 1982. But to win this time, they must learn from their own history.

The ERA is not a complicated amendment to the Constitution. It simply states: “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” It was written and first introduced to Congress in the 1920s, soon after the 19^th Amendment granted voting rights to millions of American women. But the provision split a feminist movement still celebrating women’s suffrage. Middle-class and elite women favored it, but their working-class counterparts, who had fought hard for protective legislation, believed that legal equality with men meant interchangeability. Absent more structural changes, they claimed, the Amendment would only disadvantage them by voiding decades of reforms that acknowledged women and children as different from adult men.

Subsequently, the ERA languished, making little headway in activist or political circles until a new generation of grassroots feminists revived it in the late 1960s. The idea of equal legal rights had notable momentum at a moment when both middle and working-class women were highly focused on re-defining themselves as workers. The Equal Pay Act of 1963 banned disparate pay for the same or “substantially similar” work; the Civil Rights Act of 1964 banned workplace discrimination on the basis of personal characteristics such as race and sex; and the Voting Rights Act of 1965 affirmed equal political participation as a basic right of citizenship.

By the early 1970s, feminists were using these and other provisions to press for concrete reforms. With the Civil Rights Act as leverage, they forced some of the nation’s largest employers to change their pay and promotion structures to address gender discrimination. New federal regulations paved the way to pressure television stations to air feminist programming that made sexism a topic of national conversation. Congress passed the Comprehensive Childcare Development Act in 1971 with bipartisan support. The legislation would have funneled millions of federal dollars into subsidized daycare and preschool programs, but President Richard Nixon vetoed it.

Feminists were making the law work for women. But fighting these fights one at a time was exhausting. Resurrecting the ERA was an obvious next step.

Perhaps surprisingly, moving the Amendment through Congress took relatively little effort. The ERA swept both Houses of Congress in 1972 with huge majorities. Feminists began to make their case in state legislatures, where they needed 38 ratifications for the Amendment to be successful. It worked: victory was within their grasp — until arch-conservative activist Phyllis Schlafly took notice, and decided to build a new movement of grassroots conservative women that she called “Stop Taking Our Privileges” (STOP) ERA.

Schlafly, who had recently left the Republican Party after she lost to a moderate in her quest to lead its women’s arm, energized conservative women around opposition to the ERA, but specifically around an old idea: women were different from men, a “fact” that should be acknowledged in the law. She identified the ERA as the linchpin in feminist efforts to transform American society into a genderless nightmare. Once women lost their “privileges,” she said, girls would be forced into military combat, husbands would stop supporting wives, abortion would be ubiquitous, same-sex marriage would be legalized, and men would be free to prowl women’s bathrooms. As STOP ERA bombarded the media and lawmakers with anti-feminist arguments, the ERA’s momentum slowed to a crawl, and its time limit for ratification — the unusual provision conservative members of Congress had tacked on to try to slow its momentum in the states — was set to expire.

From the mid-1970s to the early 1980s, the ERA became the terrain where feminists and conservatives sparred over competing visions for American society. But the battle increasingly took place on anti-feminists’ terms, not least because those conservatives claimed the mantle of “family values,” disparaging feminists as anti-family and dismissing the more egalitarian redefinition of family roles they promoted. Conservative forces are now even more entrenched in American politics and society. But feminists can learn important lessons from their predecessors to have a better chance of winning this time.

As they saw their momentum slow, and some states that had ratified voted to withdraw ratification, white, mainstream feminists made the decision to pursue the ERA at any cost. They had good reasons to fight hard for the provision, but they ultimately became wedged between conservative women fearful of a “unisex society” and the less privileged women whose distinct concerns — women of color, working-class women, and LGBTQ women — they increasingly sidelined. Feminists needed to lobby in state legislatures alongside of the conservative women who showed up in housedresses with apple pies, but they also needed to make a stronger case that the ERA was an expansive social justice issue.

Today’s ERA advocates must thus resist muddling their message — unlike in the 1970s, when they toggled between emphasizing the provision’s concrete and abstract benefits. In a 1976 debate, feminist icon Betty Friedan outlined some of the specific changes the ERA would make, but she concluded by highlighting its emblematic power. “The ERA is a symbol of this whole movement of women to equality,” Friedan claimed. “I guess that’s what it is,” agreed Schlafly, her opponent. Then she went in for the kill. “Symbols and slogans belong on bumper strips, not in the Constitution.”

Symbolic equality will always mean more to a subset of women — especially those who are already secure. “I would like to be able to take out my pocket Constitution,” U.S. Supreme Court Justice Ruth Bader Ginsburg said recently, “and say that the equal citizenship stature of men and women” is in it. If ERA advocates are to build a wide base of support, they should focus on the provision’s material benefits — stronger protections against pregnancy discrimination and gender-based violence and bolstering existing protections against sexism at work, to name a few — not the feelings of satisfaction it would inspire.

Today’s ERA backers should also insist that its purpose is not to lift well-off women even further above those who feed them, clean their homes, and care for their parents and children. Support for the ERA from women of color and working-class women lagged in the 1970s. For Black women, the Amendment could not be singled out as “the number-one women’s issue in the nation,” as NOW president Eleanor Smeal described it in 1979, because racial justice mattered just as much. As former NOW president Aileen Hernandez responded to Smeal, women of color “could not afford the ‘luxury’ of a single-issue focus,” but their voices went unheard. This left those feminists vulnerable to conservative and progressive attacks alike as the provision stalled in the last few state legislatures it needed, and President Jimmy Carter quietly withdrew his support.

The ERA expired in 1982, but the groups that had pursued it were permanently transformed by the fight. NOW was once a freewheeling, grassroots-driven organization with three-dozen task forces that worked on everything from divorce law reform to consciousness-raising to community-based advocacy for incarcerated women and women in labor unions. By the early 1980s it had become a top-down lobby group with lots of money but no agenda. “We had people calling NOW National saying ‘I want to join ERA,’” said its president Judy Goldsmith in 1985. “That’s what they thought we were.”

Although most feminists moved on to other issues, advocates never let the provision go entirely dormant. “All along, since 1982, there was a little hum of energy,” according to attorney and ERA advocate Jessica Neuwirth. A coalition of women’s groups has been quietly working with state legislators to revive the provision. Today’s ERA supporters will never attract the anti-feminists who built a mass movement to defeat the provision in the 1970s, and will even push to roll back ratification it in states where it has already passed, so feminists should flank left. Defining equality broadly, they should link the Amendment to the fights against white supremacy, environmental degradation, anti-LGBTQ bias, mass incarceration, economic inequality and more.

Some on the Left doubt that now is the moment to pursue the ERA. Younger feminists may believe that socialist policies could stand in for constitutional gender equality. But the ERA would only bolster socialists’ efforts to create a more egalitarian society, and socialism does not inherently attend to women’s distinct concerns. Feminist legal scholar Joan C. Williams recently wrote that a fight for the ERA would not be worth the backlash it would cause. But we need its protections now more than ever in the wake of the wave of conservative federal judges the Republican-controlled U.S. Senate has confirmed since President Donald Trump took office.

Gender justice advocates should not let this moment pass. A vast coalition of energized activists can push the ERA across the finish line through mass protests, savvy lobbying, and pressure upon the field of Democratic presidential candidates to promise to support it, as part of an expansive social justice movement, if they are elected.

This is a big agenda. But if it proves too difficult, now may not be the ERA’s moment after all.

Katherine Turk is Associate Professor of History at the University of North Carolina at Chapel Hill and the author of Equality on Trial: Gender and Rights in the Modern AmericanWorkplace (University of North Carolina Press, 2016). Her next book, A Dangerous Sisterhood:The Lost History of the National Organization for Women, will be published by Farrar, Strausand Giroux.