100 Years of 100 Things: The ERA

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Brian Lehrer: Brian Lehrer on WNYC. Now we continue our series 100 Years of 100 Things. Our WNYC Centennial series today is thing number 74, 100 years of the Equal Rights Amendment. Broadly speaking, as many of you know, the goal of the ERA is to enshrine equality for women in the Constitution. According to the National Archives, "It seeks to end the legal distinctions between men and women in terms of divorce, property, employment and other matters."

Now, the Equal Rights Amendment has not yet been adopted into the Constitution, although some would argue that it has met the requirements to actually become the 28th amendment. Joining me now to track the journey of the ERA over the last 100 years, including why some actually consider it ratified, is Julie Suk, law professor at Fordham University and author of We the Women. The Unstoppable Mothers of the Equal Rights Amendment. Julie, Professor Suk, thanks so much for joining us. Welcome to WNYC.

Julie Suk: Thanks so much for having me. It's a pleasure.

Brian Lehrer: I gave a brief definition of the ERA, but is there more that you'd like to add?

Julie Suk: Absolutely. As you mentioned, it's been 100 years since it was first introduced on the heels of the suffrage amendment, the 19th amendment to the US Constitution, which focused on not abridging the right to vote on account of sex. Equality of rights under the law, non-abridged on account of sex, introduced in 1923, meant removing all the distinctions that exist in the law that prevented women from working or serving on juries or basically having all the same rights that men had at the time.

By the time it got adopted by Congress in 1972, it had additional and different purposes. That is, a lot of those legal disabilities that women faced in 1923 had already been removed from the law. In the 1970s, there was a continuing process by which they wanted to remove other stereotypes about women and their capacities, particularly related to their reproductive capacities. How that was enshrined in many laws involving benefits, those were the concerns in the 1970s.

I think as the journey to try to get the ERA ratified has continued, even since the '70s up until now, the lens has been broadened. I think now people think that the Equal Rights Amendment should include a broader perspective, including reproductive rights and especially the right to control your own reproductive destiny by having access to things like abortion. I think that because the journey to ratification has lasted so long, different activists that have joined the movement for it at different times have broadened what it actually means.

Brian Lehrer: There was a first heyday of the ERA debate when it was first introduced in Congress in 1923. There was a second one in the 1970s that you've just been describing, and I want to linger in that period a little longer. For one thing, maybe it's worth reminding our listeners of just the basics of how a constitutional amendment gets ratified. It has to start in Congress, right?

Julie Suk: Yes, so this is actually very important. We have Article 5 of the US Constitution, which creates many different paths to amending the Constitution. The one that we usually use and the one that we've used for all but one of the amendments is starting in Congress. Two-thirds of both houses of Congress have to adopt it, and then 3/4 of the state legislatures have to ratify it.

Brian Lehrer: 3/4 of the state. That's a really high bar.

Julie Suk: 38.

Brian Lehrer: 38 out of 50, which rounds to 3/4, since you can't divide 50 by 3/4 and get an even number or a whole number. I'm going to play two clips from the '70s, one for the ERA and one against that reflects those times. Up first is the American feminist icon Gloria Steinem. Then we're going to play one from the conservative activist from that era, attorney Phyllis Schlafly. Gloria Steinem first.

Gloria Steinem: After two centuries of a constitution written by, for, and about white males with people of color and women in various conditions of servitude and childlike status and inequality, the majority of women and men, and white men too, are finally rising up and saying women of all races are citizens.

Brian Lehrer: Phyllis Schlafly.

Phyllis Schlafly: One of the first things that the Equal Rights Amendment would do is to invalidate the state laws that make it the obligation of the husband to support his wife.

Brian Lehrer: Let's talk about that one for a minute, Professor Suk. I don't think we hear that anymore. This was a big argument that the anti-ERA activist Phyllis Schlafly was making that it would invalidate state laws that make it the obligation of the husband to support his wife.

Julie Suk: There are many state laws which, just to use a shorthand, were grounded in patriarchy, the understanding since the 19th century or before, that women actually did not have their own legal rights under the law because they were dependent on their husbands. It was, especially for married women, the husband who exercised the right of property, the right to sue on behalf of the entire household, and also voted on behalf of the entire household, which meant women didn't have the right to vote either.

I think that the whole idea that the husband has an obligation to support the wife really dates to those days when women really had no legal means to support themselves. They were excluded from most forms of employment and couldn't represent themselves in the political sphere. Schlafly is right in that one of the projects of the ERA from the 1920s and through the 1970s is to protect the equal status of women as citizens, including their independence from their husbands. That is incredibly important. What gets confusing in the 1970s is that it's understood then that the way that you're going to do this is by removing any distinction that the law makes between women and men, any distinction at all.

Of course, sometimes the law does distinguish on the basis of sex in order to, for example, eradicate disadvantages women have faced because of the expectations and the stereotypes of women as child bearers and child rearers only, which were expectations grounded in the patriarchal legal system. I think what gets confusing in the '70s is that Schlafly claims that having the ERA would mean we could never distinguish between women and men for any purpose. That's actually not true. It's always and often been the case that having equality under the law doesn't mean that everyone has to be treated the same for all purposes.

Brian Lehrer: In 1979, then President Jimmy Carter moved to extend the ratification deadline for the Equal Rights Amendment because there is a timeframe by which 3/4 of the state have to ratify it. They didn't quite get there by 1979, and Carter extended it by three years.

Julie Suk: Actually, if we could be clear about what happened. The Constitution does not require a deadline on ratification for the states. This was something that Congress imposed on-- They started doing that with a prohibition amendment. It's not an underlying constitutional rule that you have to have a ratification deadline.

Brian Lehrer: Is it a law, though, that was passed by Congress and signed by a president?

Julie Suk: No, it was not signed by the President initially, because constitutional amendments don't have to be signed by the president before they go out to the states for ratification. In 1972, Congress, what they did was legally ambiguous and interesting. What they did was they proposed the amendment and then in the preamble introducing the amendment, they said that it would be valid when ratified within seven years by 3/4 of the state legislatures.

What does it mean when you say it's going to be valid when ratified? Does that say something definitive about what happens if it's not ratified within seven years? One theory is that it's up to Congress to decide what to do if it's not ratified within seven years. Actually, it wasn't President Carter, but Congress that passes a resolution in 1978 saying we're going to extend that deadline by another three years. The legality of whether Congress had the power to extend the deadline was contested at the time and continues to be contested today.

Of course, some scholars and activists contest Congress's power to actually put a deadline on any amendments at all. People say that that's also not constitutional because it's not mentioned in Article 5. I don't think there are very clear-- There's no place you could look in the Constitution that gives you a magic definitive answer to these questions as to whether deadlines can be used, whether Congress can remove the deadlines. One thing that is clear from the Constitution's text on Article 5 is that the President really doesn't have any meaningful role.

Brian Lehrer: Thank you for clarifying in such detail how that is all supposed to work. That brings us to the present moment, because three more states ratified the Equal Rights Amendment in 2017, actually Nevada in 2017, Illinois in 2018, and Virginia in 2020, which brought the total number of states on board to the required 38. Why isn't the ERA an amendment yet?

Julie Suk: It depends who you ask. I will point out that another complication for this story in addition to the very late ratifications is the fact that five state legislatures took some form of action throughout the 1970s within that seven-year period to rescind or take back their ratifications. Then people have also asked, is that legal? Can a state change its mind and take back a ratification? If they're allowed to take back, then you have to minus 5 from the 38. That's another complication.

The reason it hasn't been officially added to all of our official copies of the Constitution is that there is disagreement amongst relevant actors as to whether or not those late ratifications beyond the seven-year time period could be counted. That comes back to the question of whether or not that seven-year deadline was binding on the states, whether Congress had the power to extend the deadline. Then finally President Biden actually made a statement in his literal last 72 hours in office saying that the ERA was part of the Constitution. I think then there's also a question by the public as to whether or not the President saying that has the legal force of removing those deadlines. Many--

Brian Lehrer: Oh, go ahead, finish your thought. Then I want to play a clip relevant to that thought. Go ahead.

Julie Suk: Many people believe, many scholars believe that Congress actually does have the power to retroactively remove the deadline. There were efforts to do that in Congress. The House passed a resolution removing the deadline in 2020 and 2021. By removing the deadline, it doesn't answer the question of whether to count those rescissions. Certainly, if Congress removes the deadline, one theory is then it is actually those late ratifications count. We can get to 38, and then it is a valid amendment.

Congress, even though the House passed it, the Senate filibustered it in 2023. There was nothing done by Congress, which Congress really should be the relevant branch of federal government to bring clarity to the deadline issue.

Brian Lehrer: Let's end on what Biden did do on his way out the door in January. I want to play a clip of New York Senator Kirsten Gillibrand on this show in December, and she was out there lobbying here and elsewhere for then President Biden to say what he said, and in fact, to go one step further than he actually went. Here's 20 seconds of Gillibrand here in December.

Senator Kirsten Gillibrand: We are asking President Biden to stand up for what he believes in, which is equality for all women. He has one thing he could do to push this forward, which is to call on the archivist to sign and publish it. Interestingly, all the things that Article 5 of the Constitution requires to create a constitutional amendment have already been met.

Brian Lehrer: Senator Gillibrand here in December. To clarify what Biden did and didn't do, Professor Suk. He did, as you said, declare the Amendment ratified on January 17th of this year. He didn't take that other step that she was referring to that has something to do with the National Archives.

Julie Suk: Yes. That's a little bit of a red herring because I don't think that action by the President or the National Archivist makes the difference as to whether or not an amendment is law or not law. The only thing that can make the amendment law or not law is meeting the requirements of Article 5. Right now we're at a point where there's contestation over whether it has met the requirements of Article 5, because there's ambiguity or disagreement about whether or not deadlines can take away from the validity of an amendment that is otherwise made or otherwise met the requirements of Article 5.

Really, the president can certainly stand up for what he believes, and perhaps the President could have directed the archivist to add it to the Constitution. The archivist has a ministerial role. If the president was wrong about it being an amendment and then added it to the Constitution, that wouldn't make it an amendment. The president can't decide whether something was validly ratified. If you look at what Article 5 says, it's really a process that belongs to Congress and state legislatures.

Brian Lehrer: In our last 30 seconds, is it going to be up to the Supreme Court now to resolve the ambiguity and to say whether with the ratifications that have come, but also looking at the states that rescinded and what Biden did and all of the things you've been describing, has somebody brought it to the courts to say, "Hey, look, this really is legitimately ratified now," and somebody opposing it?

Julie Suk: For the last five years, there has been some litigation in the federal courts trying to get a declaration from a court, and most of these cases have been dismissed for lack of standing or justiciability. Eventually, I believe there will be a case that makes it up to the Supreme Court. Honestly, the Supreme Court precedent suggests that it's also not the role of judges to determine whether or not an amendment was validly ratified. It is a political question. Really, this is the responsibility of Congress to decide what to do about that deadline. If Congress takes action, I think it would be important for the judges to defer to congressional action on this.

Brian Lehrer: That's our 100 Years of 100 Things segment number 74, 100 years of the Equal Rights Amendment here in Women's History Month with Julie Suk, law professor at Fordham University and author of We the Women: The Unstoppable Mothers of the Equal Rights Amendment. Thank you so much for being so informative. Thank you, thank you.

Julie Suk: Thank you.

 

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