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the struggle for the
equal rights amendment
As the drafters of the U.S. Constitution met, Abigail Adams urged her husband John Adams to “not forget the ladies.” Yet this same document which counted each slave as three-fifths of a person, completely “forgot” women. Like Black people, women were considered sub-human.
It was another 133 years before women were able to vote. Contrary to popular myth, women were not given this right by more enlightened legislators. It took a mass movement which organized 486 marches to win this simple democratic right.
The National Women’s Party argued for an equal rights amendment (ERA) as the logical extension of women’s suffrage. In 1923, this amendment, written by Alice Paul, was first introduced into Congress. The original ERA simply stated: “Women and men shall have equal rights throughout the United States and in every place subject to its jurisdiction.”
Although the ERA was reintroduced in every session of Congress from 1923 to 1972, it wasn’t until March 22, 1972, under the pressure of a growing feminist movement, that Congress finally approved the ERA and sent it to the states for ratification. The 1971 ERA 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.”
In describing the objective of the ERA, the 1972 Senate Judiciary Committee report which recommended its passage stated: “The basic principle on which the Amendment rests my be stated shortly: sex should not be a factor in determining the legal rights of men or women. The Amendment thus recognized the fundamental dignity and individuality of each human being. The Amendment will affect only government action; the private actions and the private relationships of men and women are unaffected.”
Congress set a seven-year time limit to secure the approval of the 38 states needed for ratification. Later, after a massive demonstration in Washington, Congress extended the deadline to June 30, 1982.
Although survey after survey showed overwhelming public support for the ERA among women and men, it was officially defeated on June 30, 1982 when it fell three states short of the 38 needed for ratification.
On January 3, 1989, the ERA was reintroduced into Congress. Despite a July 1988 Harris poll showing 78 percent approval, even the most optimistic feminist isn’t predicting rapid ratification.
Why is this affirmation of basic democratic rights necessary? Why did the earlier movement to secure ERA ratification fail? What steps are needed to win?
Existing Legislation
In 1964, Congress responded to the militant civil rights movement by passing legislation prohibiting discrimination in hiring, job upgrading, and working conditions based on race, color, religion, sex, or national origin. Virginia Democratic Senator Howard Smith added the word “sex” in a last-ditch effort to defeat the bill.
Although prohibiting sex discrimination wasn’t intended by the bill’s proponents, this amendment provided a legal basis for women fighting to be hired into better paying “male” jobs. Yet, sex-based discrimination remains a problem in employment and education.
While the 1978 Supreme Court ruling in the Bakke case, which overturned a University of California Medical School affirmative action program, has correctly been characterized as racist, there’s a sexist aspect to it that’s not as widely known. The majority opinion explained that gender-based classifications are “never viewed as inherently suspect or comparable to racial or ethnic classifications for the purpose of equal-protection analysis” because discrimination against women in not “inherently odious” when compared to the “lengthy and tragic history” of racial bias.
In the face of massive evidence of gender-based discrimination, the continued failure of the courts to extend to women the equal protection guarantees of the 5th and 14th Amendments to the Constitution fueled the drive for a federal ERA.
A report issued by the U.S. Civil Rights Commission supporting the ratification extension argued: “The Equal Rights Amendment will provide a needed constitutional guarantee of full citizenship for women, and will assure the rights of both women and men to equal treatment under the laws. Ratification of the ERA is an important appropriate means of alleviating sex discrimination – just as the adoption of the 13th and 14th Amendments was to the cause of racial equality.”
Existing Discriminatory Legislation
This Commission has identified over 800 sections of the U.S. Code with substantive sex bias or sex-based terminology, inconsistent with a national commitment to equal rights, responsibilities and opportunities.
Family law still maintains the old English common law view that a married woman is the property of her husband. Although some of the most oppressive aspects of this discrimination have been repealed over the past century and married women can now own property, enter into contracts, and be granted child custody, many marriage laws continue to deny women equal rights.
Many states still maintain that, even when paid for by the wife, a married couple’s property belongs only to the husband. In many states, when a farm husband dies his wife must pay a substantial inheritance tax on the farm even though it was jointly titled. However, when the farm wife dies, her husband does not have to pay a similar tax.
Such laws also prevent many women from obtaining credit. Even though the Federal Equal Credit Opportunity Act prohibits discrimination on the basis of sex or marital status, state marital property laws can be used in determining creditworthiness.
Some states set different age limits for men and women to be married or hold jobs.
The 1963 Equal Pay Act and the 1964 Civil Rights Act don’t outlaw all sex discrimination in employment. Some employees, including those who work for Congress, aren’t covered by laws prohibiting sex discrimination. Although a 17-year-old male can work for a federal contractor, a 17-year-old female is prohibited from doing so.
In the absence of a clear Constitutional Amendment, court decisions have exempted certain discriminatory practices from Title VII.
Women are Penalized & Victimized
Criminal law frequently treats men and women differently both as victims and offenders. In Alabama, a man who discovers his wife having intercourse with another and kills her immediately is only charged with manslaughter, while a woman who kills her husband under identical circumstances is charged with murder. Few states prohibit spousal rape.
A summary of the current laws on marital rape, which is involved in a great number of cases of domestic violence, is given in a 1987 book entitled, Real Rape by Susan Estrich.
“In most states,” Estrich documents, “you can rape your wife with greater impunity than you can rape your girlfriend or neighbor. As of 1985, only ten states have completely eliminated the marital exemption. Nine states provide an absolute exemption so that even the most brutal rape by a husband is not a crime. The rest protect husbands in most situations, for example, if the spouses are living apart pursuant to court order or separation agreement.”
This double standard of law enforcement also extends to prostitutes. Invariably they are penalized, but not their male customers. When penalties do exist for customers, they’re usually much less severe.
Girls and boys are subject to different definitions of delinquent behavior. More girls are detained for “status” offenses such as truancy, incorrigibility, and promiscuity, while more boys are arrested for delinquent acts such as theft. Girls are jailed for less serious conduct than boys and for a longer period of time.
Women generally serve longer prison terms than men for the same offenses. Women prisoners have fewer job training opportunities than their male counterparts. What training women prisoners do receive is sex-stereotyped.
Girls in elementary and secondary schools are still steered away from mathematics, science, and industrial arts. Susan Vorchheimer, a ninth-grade Philadelphia student who had won awards in geometry and science, was denied admission to a public high school specializing in math and science because it was an all-male school. In 1977, the Supreme Court refused to overturn this blatant sex discrimination.
By prohibiting all sex-based classifications except where characteristics unique to one sex are concerned, the ERA would set a legal standard for review of sex discrimination cases that goes beyond current interpretations of the 5th and 14th Amendments.
The fundamental legal principle to be established by the ERA is that the law must deal with the individual attributes of the particular person and not with stereotypes based on sex.
Protective Legislation
Originally, the AFL-CIO opposed the ERA, arguing that its adoption would hurt working women by doing away with state protective laws. However, rather than “protect” women such laws can actually serve as legal justification for discriminatory hiring practices.
Some states explicitly prohibited women from holding certain “male” jobs such as mining. Other states did so implicitly by setting restrictions on lifting, overtime, and night work which effectively kept women out of better paying industrial jobs.
Ironically, such “protective” legislation had exemptions which allowed women to work under the prohibited conditions in particular industries. Two common exemptions were agriculture and domestic work. In these low paid jobs women were legally free to lift heavy weights and work long hours. It was only in the better paying jobs that they were “protected.”
Feminists argued that in those cases where protective legislation actually benefited women, e.g. establishing minimum wages, break times, and better working conditions, these same benefits should be extended to men.
Testifying in support of the ERA in 1970, United Auto Workers Vice President Olga Madar urged a “concerted campaign by all interested unions . . . to replace such laws, which are used by employers to deny women workers rights and benefits to which they are entitled, and to enact in their place updated, uniform laws which protect both men and women.”
Pressure from women trade unionists eventually forced the AFL-CIO to correct its anti-ERA position. Once this change occurred, trade union women made sure the AFL-CIO’s stance was more than a formality. ERA committees sprung up in a number of local unions. In Ohio, the labor movement organized a protest at the State Capitol and arranged for busloads of ERA supporters to fill the galleries as the legislature debated the issue. Similarly, labor-initiated actions in support of the ERA took place across the country.
Not everyone, however, favors this extension of basic democratic rights. And, although they receive most of the publicity, it’s not just a few religious fanatics and right-wing nuts who oppose the ERA.
As is clear from the many discriminatory practices the ERA would outlaw, sex discrimination is highly profitable for big business. Not only do the bosses benefit directly by keeping women’s wages and benefits down, but they also use sex discrimination to divide the working class along gender lines, thus facilitating their attempt to solve capitalism’s economic crises by driving down the living standard of all working people. As the chief political representatives of the nation’s ruling rich, the Democratic and Republican party politicians are keenly aware of the stakes involved in the fight for the ERA.
How to Win
Just as John Adams and the other wealthy merchants and planters who framed the Constitution did “forget” to include women, today’s politicians have somehow still “forgotten” to grant women their full rights as citizens. Just as the women’s suffrage movement caused the Democratic and Republican politicians to “remember” to pass the 19th Amendment, a massive mobilization involving the vast majority who support the ERA, can compel today’s Democratic and Republican politicians to “remember” to ratify the ERA.
It’s important that feminists seriously examine the strategies that worked and those that failed in the 1970’s and earlier, and not repeat the same mistakes.
The 1973 Roe v Wade Supreme Court decision legalizing abortion and the 1972 Congressional approval of the ERA were both responses to the developing women’s liberation movement. Feminists correctly reached out to labor and the civil rights movement, two social movements whose real power has historically emanated from mass struggles against the political representatives of the status quo.
The persistent educational and mass-protest campaigns won many workers to active support of the ERA and helped bring about the change in official AFL-CIO policy. Labor participation in demonstrations and pickets helped secure ratification in some states.
The National Organization for Women (NOW), founded in 1965, spearheaded the ERA campaign. Widespread support for this issue caused NOW to grow, rapidly becoming a truly national feminist organization.
NOW called several large protest actions, including national demonstrations in Chicago and Springfield, Illinois. Tens of thousands of ERA supporters came to these cities from virtually every state. These actions brought more members into NOW and increased support for the ERA. However, despite the successful examples of the civil rights movement and the movement against the Vietnam War – and even the suffrage movement – the central leaders of NOW often failed to continue this approach.
Instead, they concentrated on electing “friends,” mostly Democrats, to state legislatures in unratified states and elsewhere. Volunteers and money which could have been used to reach out to broader forces were wasted on futile election campaigns. Time after time, politicians gladly accepted NOW’s money and campaign assistance only to vote against the ERA once elected.
As the original deadline for the ERA ratification approached, NOW again called on its members to lead ERA supporters out into the streets. After a huge outpouring in Washington, D.C., the Congress, which a short time before had been expected to turn down the extension, quickly granted it. Instead of continuing the pressure, the NOW leadership returned to the failed strategy of supporting “friendly” politicians. And, once more, their “friends” stabbed them in the back.
The ERA can only succeed today if this mistaken policy is reversed. NOW’s April 9, 1989 March for Women’s Equality/Women’s Lives was an important step in the right direction.
Just as the successful suffragist movement led to the original introduction of the ERA, a victory for the ERA will encourage women to continue fighting against their second class status. The increased democratic rights they have won will help in achieving further gains.
The article above is by Shirley Pasholk, and is taken from the pamphlet, “The Fight for Women’s Rights Today,” published by Walnut Publishing.
