To the Teacher
August 26th is Women’s Equality Day, a national day of celebration commemorating the 1920 passage of the 19th Amendment to the Constitution. But the fight for women’s equality continues today. One way in which activists are working to carry on the struggle is by passing the Equal Rights Amendment (ERA), another constitutional amendment that seeks to guarantee equal rights for women.
This two-part lesson consists of two readings which explore the ongoing history of the Equal Rights Amendment (ERA) in the United States. Questions for discussion follow each reading as well as a post-reading activity, which invites students to explore the ERA-based legislation within their own states.
Reading One — The Equal Rights Amendment Then and Today
August 26 is Women’s Equality Day, a national day of celebration commemorating the 1920 passage of the 19th Amendment to the Constitution, which expanded voting rights to women in the United States. But the fight for womens’ equality continues today. One way in which activists are working to carry on the struggle is by passing the Equal Rights Amendment (ERA), another constitutional amendment that seeks to guarantee equal rights for women.
In an April 2021 article for The Guardian, policy and advocacy journalist Alexandra Villarreal reviewed the history of the effort to pass an Equal Rights Amendment in the United States. Villarreal wrote:
If the Equal Rights Amendment (ERA) were incorporated into America’s founding document, it would represent a huge victory for women and people across the gender spectrum, whose fundamental rights are too often tied to partisan disagreements….
First drafted in 1923 and revised over the years, the proposed article is a constitutional guarantee that the ‘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 would also give Congress the power to enforce gender equality through legislation, and would take effect two years after ratification….
[The] fight for the ERA ramped up in the 1970s, bolstered by a strong feminist movement. But it quickly garnered enemies in the form of conservatives… who would eventually ensure its demise.
[https://www.theguardian.com/us-news/2021/apr/15/us-equal-rights-amendment-congres]
The ERA enjoyed broad support during most of the 1970s, including endorsements from every sitting president of the decade, from the leadership of both the Republican and Democratic parties, and from both the United States House of Representatives and Senate. However, after passing through Congress the ERA still needed to be ratified by three-fourths of the state legislatures, or 38 states total, in order to become part of the Constitution.
As advocates sought ratification in the states, they soon encountered staunch opposition. In a January 2020 article for the Brennan Center for Justice, constitutional reform researchers Alex Cohen and Wilfred U. Codrington III detailed the stalling of the ERA. Cohen and Wilfred wrote:
Within a year, 30 of the necessary 38 states acted to ratify the ERA. But then momentum slowed as conservative activists allied with the emerging religious right launched a campaign to stop the amendment in its tracks. Phyllis Schlafly, a conservative lawyer and activist from Illinois who led the STOP ERA campaign, argued that the measure would lead to gender-neutral bathrooms, same-sex marriage, and women in military combat, among other things.
[https://www.brennancenter.org/our-work/research-reports/equal-rights-amendment-explained]
Schlafly and other opponents were able to stop the approval of the ERA in enough states to prevent its ratification by 1979. Although Congress extended the ratification deadline, conservatives were able to persuade the governments in five states — Nebraska, Tennessee, Idaho, Kentucky and South Dakota — to move to invalidate their previous ratifications. By 1980, the Republican Party removed its support for the ERA from its party platform. When the extended deadline for the ERA’s ratification passed in 1982, many considered the drive to pass the amendment to be dead.
Despite these setbacks, the amendment has received renewed interest in recent years as part of a rejuvenated push for gender equality in the post-#MeToo era. In a March 2023 article for ABC News, political reporters Julia Cherner, Rachel Scott, and Benjamin Siegel covered the efforts of states to ratify the ERA in the 2000s. They wrote:
The ERA has seen revived public interest in recent years, following the #MeToo movement, women's marches and the record number of women running and winning seats in Congress…
Nevada voted to ratify the amendment in 2017, Illinois did so in 2018 and it reached the 38-state threshold needed when Virginia voted to do the same in 2020.
On Tuesday, the U.S. Court of Appeals for the District of Columbia ruled that the congressional deadline on the ERA was legally binding, so the later three ratifications were not valid. Illinois and Nevada sued to demand publication of the measure as the 28th Amendment but failed to show why the deadline that Congress set shouldn't be enforceable.
Lawmakers and advocates backing the ERA now argue that Congress has the power to lift the deadline because they had the power to impose it in the first place. [Massachusetts Democratic Rep. Ayanna Pressley] told ABC News that it was the "only thing standing in our way."
The United States Constitution does not set any time limits on the ratification of amendments. And since the court’s ruling, Congressional Democrats have continued to argue that the deadline for ratification was arbitrarily set and can be removed by Congress, which would allow the ERA to officially become part of the Constitution. However, lifting the previous deadline would require broad-based support in the nation’s Senate, something unlikely to happen soon in a tightly divided Congress wherein the Republican party has firmly established itself as opposed to the addition of the amendment.
While the ERA was not ratified in the 1970s or 1980s, the amendment still looms large in the struggle for women’s’ equality in the United States. In 2020, almost 80 percent of Americans supported adding the ERA to the Constitution. Women in the country still earn an average of 82 cents for each dollar earned by men, according to The Pew Research Center, a pay gap that has remained mostly unchanged for two decades and which proponents of the ERA argue the amendment could help to address.
For Discussion:
- How much of the material in this reading was new to you, and how much was already familiar? Do you have any questions about what you read? What personal connections, thoughts, or feelings did you have about what you read?
- When was the Equal Rights Amendment first written? According to the reading, what are some things the amendment would do, if ratified?
- According to the reading, what have been some obstacles to the ratification of the ERA?
- What do you think of the idea of an Equal Rights Amendment to the U.S. Constitution? Do you think it would be valuable? Do you think it would still be easy to ratify? Explain your position.
Reading Two: Passing Equal Rights Amendments at the State Level
While the future of the federal Equal Rights Amendment remains uncertain, multiple states have worked to add their own versions of the ERA to their respective state constitutions. These efforts have been galvanized in recent years by a recent Supreme Court ruling, Dobbs v. Jackson Women’s Health Organization, that withdrew federal protections for abortion rights for women. Similar to the state ratification process of the ERA in the 1970s, states have again become a battleground in the fight for women’s’ equality.
In a December 2022 report published by the Brennan Justice Center, student interns Sadie Logerfo-Olsen and Katie Hawkinson helped research and prepare a national roundup of ERAs in the country’s state-level constitutions. Logerfo-Olsen and Hawkinson wrote:
In the United States, the fight for a federal Equal Rights Amendment has been a century in the making.
Meanwhile, state-level equivalents abound. Some are comprehensive provisions of state constitutions that guarantee equal rights regardless of an individual’s gender, and others are provisions that prohibit gender-based discrimination in specific circumstances.
State courts and constitutions are becoming increasingly important in the wake of the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization as well as federal courts’ growing hostility to many forms of civil rights protection. In the coming months and years, litigants may increasingly turn to state-level Equal Rights Amendments.
[https://www.brennancenter.org/our-work/research-reports/state-level-equal-rights-amendments]
A total of 28 states have established gender equality provisions in their constitutions, most of which were passed in the early- to mid-1970s, during the push for a federal ERA. More recent additions were passed in Nevada and Delaware in 2022. Currently, legislators in Vermont, Maine, and Minnesota are working to place similarly structured amendments into their state constitutions.
Although every state does things a little differently, most set high bars for adding an amendment to their most authoritative legal documents. In Maine, for example, both chambers of the state’s congress have to approve an amendment by a two-thirds majority before it can be sent to the public, where a simple majority of voters would have to approve the amendment for it to become law. The ERA bills in Vermont, Maine, and Minnesota have not yet surpassed the first, most challenging steps of passing their respective state legislatures.
One state that has cleared the first hurdle and is now sending an ERA out to its residents for approval is New York. The amendment that is up for a vote in New York this November extends protections to more groups of people than the federal ERA. These include women, people with disabilities, and people who are pregnant. Political reporter Bill Mahoney wrote in an April 2024 article for Politico, “The stakes are high in New York: The amendment is being viewed as a way to motivate voters in a presidential election year when five battleground House races could swing who controls the chamber in January.”
In a March 2024 article for Daily Freeman, local journalist Connor Greco covered a political rally in Kingston, New York of activists and political leaders urging residents to vote on the upcoming ballot proposal. Greco wrote:
State Sen. Michelle Hinchey, D-Saugerties, and local activists and organizations rallied in support of the Equal Rights Amendment on Saturday, urging Ulster County residents to vote “yes” on the ballot in November.
The Equal Rights Amendment, already passed by the New York State Legislature, would expand on current discrimination protections in New York State, prohibiting discrimination on the basis of ethnicity, national origin, age, disability and sex, including sexual orientation, gender identity, gender expression, pregnancy and pregnancy outcomes.
The Equal Rights Amendment would also protect against any government actions that would affect a person’s reproductive autonomy or access to reproductive health care.
The rally was held Saturday morning outside of the Restorative Justice Center on Broadway….
Lin Sakai of Indivisible Ulster organized the rally. “It’s not broad enough,” Sakai said, referring to the discrimination protections already in place for race, sex and age. “We want to make sure that it includes the protection of reproductive freedoms, as well as for LGBTQ+, transgender, and people with disabilities.”
While New Yorkers will have the opportunity to vote on the state-level constitutional amendment in November, the battle for ERAs in the states will continue in other parts of the country.
For Discussion:
- How much of the material in this reading was new to you, and how much was already familiar? Do you have any questions about what you read? What personal connections, thoughts, or feelings did you have about what you read?
- How many states have already outlined gender equality provisions in their constitutions? According to the reading, what are some of the states in which are there ongoing efforts to add similar provisions to their constitutions?
- According to the reading, what are some of the impacts the amendment, up for a vote in New York, might have?
- The reading discusses how the New York amendment would include discrimination protections for the LGBTQ+ population and people with disabilities, in addition to discrimination protections based on sex, race and age. Have you witnessed discrimination against any of these groups? How might this amendment help?
- What are the benefits of a state-based ERA? What are the drawbacks? What are the benefits of a federal-based ERA? What are the drawbacks?
Post-Reading Activity:
Give your students time to research whether their state has passed protections to ensure that the equal rights of women are respected.
Invite students to share their findings as well as what they think of the measures that are currently part of the law in your state. Students may express and relay this information in any way that they find most engaging: essay, poem, video, social media post, visual art representation, etc.
—Research assistance provided by Sean Welch