The story of the fight for equality for girls and women in America is a long and complicated one. It goes back as far as the writing of the U.S. Constitution in 1787, when we were deliberately left out of consideration. We have been paying the price in rights, protections and recourse ever since.
Amending the Constitution — the rule book that determines how we live in this country — is essential to change the discrepancies in opportunities and achievement between men and women. Many people think we are fighting for incidental, inconsequential improvements, but these are life and death issues for women and their children.
How would the Equal Rights Amendment make a difference? The case I think of most often is that of Jessica Lenahan, who in 1999 received on behalf of her and her four children a restraining order against her husband. The police department in Castle Rock, Colorado, refused to honor that order when he took their three daughters in violation of it; all three were murdered. Jessica Lenahan's case went all the way to the U.S. Supreme Court where, in 2004, Justice Antonin Scalia was among those who rejected her claims of discrimination.
And then there is Scalia's famous 2011 quote: " Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't."
That is why this is an extraordinary time for the prospects of women across this country: After 47 years, the final state needed to ratify the Equal Rights Amendment is on the verge of doing so.
The idea of an Equal Rights Amendment has been around — and women have been fighting for it — for almost a century. It was the idea of Alice Paul, the suffragist and women's activist who was one of the leaders behind the movement for the 19th Amendment, which gave women the right to vote in 1920. She thought we needed one more step to achieve true equality in America: to add women to the Constitution or, more specifically, to make it illegal to discriminate based on one's sex.
It took more than half a century to get there. Congress passed the Equal Rights Amendment — after long, hard-fought battles — in 1972, by the necessary two-thirds vote, with a seven-year timeline for 38 states to ratify it. (The timeline is in the preamble, rather than in the text of the amendment on which states voted.) The amendment reads, rather simply and directly: "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex."
Then, the amendment went out for ratification to the states. As the original end of the timeline neared, only 35 states had ratified it, having come under pressure from religious conservatives as well as corporations who had a financial stake in charging women more for similar services, everything from insurance to dry cleaning. Congress extended the deadline until 1982 but to no avail. No further states ratified the amendment. (In fact, five states attempted to rescind their ratifications, though states who had done so in prior cases hadn't had their efforts recognized and the Supreme Court has declared it a political question beyond its scope, seemingly leaving it to Congress. Our legal scholars believe the rescissions will not be honored.)
That status quo remained for nearly 40 years. Then, in 2017 — shocking almost everyone — Nevada, led by state Sen. Pat Spearman, ratified it. The next year, Illinois did the same. That left only one more state needed for full ratification of the ERA, and Virginia seemed the likely candidate in 2019. But it failed to come to a vote in the then-Republican controlled House this year after passing in the Republican controlled Senate.
On Nov. 5, though, the state of Virginia elected enough Democrats to take control of the Senate and the House of Delegates for the first time in more that 20 years. That made it almost certain that the state will become the 38th and final state needed to ratify the ERA in 2020.
That, then, leaves the matter of the expired ratification deadline, a tradition entertained by Congress since its debate over Prohibition — but one it ignored with the passage of the 27th Amendment, which was first passed by Congress in 1789 but not ratified by the states until 1992.
It was to that end that, on Nov. 13, the House Judiciary Committee convened to consider California Democratic Rep. Jackie Speier's bill, House Joint Resolution 79, to remove the time limit for ratification originally written in the amendment's preamble. It passed, 21-11, and now moves to the full House for a vote after which it's up to the Senate to vote.
After years of deliberating the idea of fairness and justice, we are on the brink of giving that fairness and justice to everyone, regardless of sex.
For that reason, the discussion in the Judiciary Hearing Room on Thursday was profoundly moving. I thought about the women who should have been there: Alice Paul and Ida B. Wells, and then Shirley Chisholm, Bella Abzug and all the women of that 70s campaign. Ellie Smeal of the Feminist Majority , who has spent a full 50 years in pursuit of this, was with us. We both said, "Can you believe this?" and hugged each other tightly. Even Gloria Steinem, who serves on our board and has not been exactly optimistic, now sees the possibility of passage.
As soon as she entered the hearing room, Rep. Pramila Jayapal, D-Wash., who has been working with us on the constitutional issue, came rushing over to hug us. Rep. Shelia Jackson Lee, D-Texas, held up a pocket Constitution, insisting the 28th Amendment should be in there; we cheered. And Rep. Lucy McBath, D-Ga., quoted the Black abolitionist and suffragist Frances Watkins Harper: "We are all bound up together in one great bundle of humanity."
Women of all colors have always been on these battle lines, and it is my own feminist mother, daughter and grandchildren that I have in mind when I do this work for equality.
It lasted almost two hours, with committee members who are in favor of the bill also stating the case for the necessity of amending the Constitution, which would finally give a constitutional foundation for laws covering sex and domestic abuse, pregnancy discrimination and pay equity, among others.
The document has been amended 27 times before, to "fix" certain overlooked issues not thought of in 1787. There is no reason it can't be amended again.
“There are those who still oppose doing so; there are certainly people who still oppose full equality for every American. But Rep. Cedric Richmond, D-La., asked his Republican colleagues this week: “In 20 years, do you want a kid or grandkid to pull up the tape and see that, on the day we were fighting to prevent discrimination on the basis of sex, that somehow and for some reason, you were against it?””
It's long past time to enshrine women's full equality in our nation's foundational documents. We have learned in the last three years that laws and court rulings — which brought us far closer to equality in the last 40 years than in the previous 200 — are far more precarious than any of us who helped bring them to pass had hoped. The ERA is as necessary now as it ever was.