For the first time in 36 years, the debate about the Equal Rights Amendment (ERA) returned to Congress. On Tuesday morning, advocates, including Oscar-winning actress Patricia Arquette, made their case for the 96-year-old amendment before the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties.
The hearing is the latest step forward in the renewed fight to ratify the ERA, which would amend the U.S. Constitution to guarantee equal rights under the law, regardless of gender. Advocates urged the committee to move forward on Congresswoman Jackie Speier's (D-CA) joint resolution to remove the ratification deadline set by Congress back in the '70s.
The ERA was first passed by Congress in 1972, along with a deadline for getting 38 state legislatures to vote to ratify it, as required by the ratification process. Throughout the '70s, feminist activists were able to rally 35 states to pass it, and get the original 1978 deadline extended. But ultimately, when the second deadline passed in 1982, they were still three states short.
Then, in 2017, just two months after President Donald Trump's inauguration, Nevada's state legislature voted to ratify it. One year later, in May 2018, Illinois ratified it. Now, ERA advocates need just one more state legislature to move, and arguably the ERA would immediately become law. After coming extremely close in Virginia earlier this year, they have set their sights on Arizona, North Carolina, and Louisiana, where a ratification bill just got moved out of committee.
Today's hearing was the first step to attempt to address where we go from here regarding the deadline. With a crowd of activists dressed in suffragette white seated behind them, Rep. Speier and Rep. Carolyn Maloney (D-NY), who has also introduced a bill to re-introduce and re-start the ERA ratification process as a "fallback," opened the testimony. Rep. Speier called it an "embarrassment" that the United States is the only industrialized nation not to have explicit language declaring equal rights for women in its Constitution.
"Some have called the ERA just a symbol. Keep in mind that symbols are important. Yes, it is a symbol," Rep. Maloney said. "But women need much, much more than a symbol. We need respect. We need fairness. And we need to be in the Constitution. Not having the ERA has real consequences for real women. We cannot enforce equal pay for equal work unless the ERA is in the Constitution. It's that simple."
"In some states today, women must be forced to co-parent with their convicted rapists," Arquette said. "In 98% of all jobs, women are paid less. There are 4 million women over 65 who are living in poverty, and 2.5 million children would be lifted out of poverty if the wage gap were corrected. These are just a few examples of how systemic bias against women is expressed in America. Why? Because women don't have the same value in our country."
If you think we’re going to stand down and stop fighting for our rights, well, you clearly haven’t met us.
Rep. Carolyn Maloney
Kathleen Sullivan, the first female dean of Stanford Law School, and Elizabeth Price Foley, a law professor at Florida International University, each offered their competing views of the deadline question for the committee.
"This Congress absolutely has the power to clear away any impediment that the deadline imposed in the 1970s," Sullivan said. Her argument: Because Article 5 of the Constitution, which outlines the amendment-ratification process, says nothing about deadlines, this opens the door for Congress to simply lift the deadline. "Article 5 says valid when ratified, and that is the end of the matter," Sullivan said.
Foley cited case law that supports Congress' ability to set a deadline for ratification. "Any attempt at third bite at the apple, at extending the ratification deadline, would likely be unconstitutional," Foley said. "It's notable that no amendment has ever been ratified outside of the deadline. The ERA would be the first. The amendment would be birthed under a shadow of doubt."
Regardless of the procedural disagreements, advocates of moving forward argued that while the deadline is an open question, the ERA is too important to give up on. "The road is long and it is full of turns," said Nevada state Sen. Pat Spearman, who pushed through ratification in her home state. "But we must continue to work to get the ERA [to be] part of our Constitution."
According to the ERA Coalition, an amendment for women's equality has broad bipartisan support among voters, with 94% of Americans saying they would support one. “There has never been more momentum for the ERA and we are closer than ever to ratification,” Carol Jenkins, co-president and CEO of the ERA Coalition, said in a statement provided to Refinery29. “This is a new era in the movement, pushed forward by a diverse coalition of women and men of all races and backgrounds who believe discrimination based on sex simply should not take place.”
There is also bipartisan support for the amendment in Congress, although it is unclear whether there is enough support to meet the two-thirds majority requirement in the event that we have to start the ratification process from scratch.
“We will continue our bipartisan campaign to ensure this historic amendment has a fair shot at being enshrined into our Constitution — not only for the thousands of women who have been discriminated against, but for the next generation of women,” Rep. Tom Reed (R-NY), who is a co-sponsor of Rep. Maloney's re-start bill, said in a statement to Refinery29.
Regardless of what happens with the deadline, activists and advocates remain focused on the path forward, wherever that leads. “[We are] heartened to see the Equal Rights Amendment being discussed on the national stage. It is urgent to raise public awareness and consciousness of this critical amendment," Kamala Lopez, founder of Equal Means Equal, an organization that has led state ratification efforts, told Refinery29. "We urge all unratified state legislatures to pull the ERA out of committee and put it on their floors for a full vote."
"This hearing is the first step in passing legislation to make the ERA reality. I also hope that this spotlight on the issue will show Members and people around the country why we need the ERA now," Rep. Maloney wrote in response to emailed questions after the hearing. "There is no end to the fight for women’s equality. If you think we’re going to stand down and stop fighting for our rights, well, you clearly haven’t met us."