Equal Rights Amendment: Federal
BIBLIOGRAPHY
Anderson, Terry Lee, and Donald R. Leal. Free Market
Environmentalism. New York: Palgrave, 2001.
Bliese, John R. E. The Greening of Conservative America. Boulder,
CO: Westview Press, 2001.
Dobson, Andrew. Justice and the Environment: Conceptions of
Environmental Sustainability and Theories of Distributive
Justice. Oxford, UK, and New York: Oxford University Press,
1998.
Giddens, Anthony. The Politics of Climate Change. Cambridge,
UK, and Malden, MA: Polity, 2011.
Luke, Timothy W. Capitalism, Democracy and Ecology: Departing
from Marx. Urbana: University of Illinois Press, 1999.
Merchant, Carolyn. Earthcare: Women and the Environment. New
York: Routledge, 1996.
Mooney, Chris. The Republican War on Science. New York: Basic
Books, 2005.
Norton, Bryan G. Toward Unity among Environmentalists. New
York: Oxford University Press, 1991.
Sessions, George, ed. Deep Ecology for the Twenty-first Century.
Boston: Shambhala, 1995.
Shellenberger, Michael, and Ted Nordhaus. Break Through: From
the Death of Environmentalism to the Politics of Possibility. New
York: Houghton Mifflin, 2007.
Taylor, Bob Pepperman. Our Limits Transgressed: Environmental
Political Thought in America. Lawrence: University Press of
Kansas, 1992.
Bob Pepperman Taylor
University of Vermont
EQUAL PROTECTION
CLAUSE
SEE
Fourteenth Amendment: Equal Protection Clause.
EQUAL RIGHTS
AMENDMENT: FEDERAL
The proposed, but not successfully ratified, amendment
to the US Constitution that became known as the Equal
Rights Amendment, or simply ERA, reads as follows:
‘‘1. Equality of rights under the law shall not be denied
or abridged by the United States or by any state on
account of sex. 2. Congress shall have the power to
enforce, by appropriate legislation, the provisions of this
article. 3. The Amendment shall take effect two years
after ratification.’’
ORIGINS AND RATIFICATION PROGRESS
Annual introduction of this amendment to Congress
began in 1923, subsequent to successful adoption of
the woman suffrage amendment. Prior to the women’s
movement of the 1960s, the amendment made little
progress in Congress and its central principle made as
little progress in the courts of the land. The equal protection clause of the Fourteenth Amendment (securing to
all persons against potential state discrimination ‘‘the
equal protection of the laws’’) had been interpreted since
its adoption in 1868 as forbidding, in particular, racial
discrimination. As early as 1886 the Supreme Court
extended this prohibition to nationality-based or ethnicity-based discrimination (in the striking down of an antiChinese ordinance of California). But for more than a
century the Court repeatedly denied that the equal protection clause limited legislative discrimination against
women. Women could be (and were) denied legal permission to be attorneys, or to be bartenders, or to serve
on juries. Even as late as 1961 (in Hoyt v. Florida, 368
U.S. 57), the Warren Court ruled that it was not a denial
of equal protection to have a jury containing no women
convict a woman of murdering her husband (pursuant to
a marital argument) within a jury system that systematically exempted women; in its list of ten thousand eligible
jurors, only ten were women.
By the end of the 1960s a feminist movement took
off in the United States, proceeding along two fronts.
There were national, newly organized feminist groups that
appealed in general to middle-class professional women,
such as the National Organization for Women (NOW,
formed in 1966) and the Women’s Equity Action League
(WEAL), along with long-standing women’s organizations, such as the American Association of University
Women (AAUW), the League of Women Voters, and
the National Federation of Business and Professional
Women. For younger, more radical women, there were
numerous local, small, face-to-face groups, often organized
as consciousness-raising sessions. The larger, moderate
groups were the organizational force behind the ERA,
and these feminists found allies for the amendment in a
wide swath of civic organizations (such as the American
Civil Liberties Union, Common Cause, and the American
Bar Association). Both national political parties supported
the ERA in their platforms of the 1960s and 1970s, as did
seven presidents of the United States, up through Jimmy
Carter (in office 1977–1981).
Organized labor had been an important obstacle to
the ERA, but just prior to the formation of the women’s
movement in the 1960s, Congress adopted two laws
that had the unintended result of eliminating this opposition: (1) the Equal Pay Act of 1963, mandating that
women doing work identical to that done by men under
the same employer must receive equal pay; and (2) the
provision in the 1964 Civil Rights Act that forbade
employers to discriminate on the basis of sex (as well
as race, religion, or ethnicity) in wages, employee
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benefits, hirings, promotions, firings, or other terms of
employment. This piece of the Civil Rights Act undercut certain labor laws ostensibly ‘‘protective’’ of women
(such as those forbidding the assignment of women to
night shifts). A concern to preserve such laws had been
the source of labor’s opposition to the ERA. Although
the opposition did not dissolve immediately, the AFLCIO, the largest federation of American labor unions,
did unanimously endorse the ERA in 1973 at its annual
convention.
Even with the legal reforms of 1963 and 1964,
however, many law-based discriminations remained that
an ERA would eliminate—for example, it was still legal
to discriminate against women in state university admission, jury selection, and certain legal elements of divorce.
Pressure for the ERA from the organized women’s movement attained success in Congress within five years. The
House of Representatives approved the ERA for the first
time, by a vote of 350 to 15, on August 10, 1970. The
Senate tabled the ERA proposal that year and instead
voted by a slim majority for a law exempting women
from the military draft. On October 12, 1971, the
House again endorsed the amendment, this time by a
vote of 354 to 23. And on March 22, 1972, the ERA
won overwhelming support in the Senate, by a vote of
84 to 8. Having received official Congressional approval,
the ERA moved to the states for ratification.
Of the thirty-two state legislatures that met in the
calendar year 1972, twenty-two of them ratified. In three
others, one house approved the amendment and the other
did not act by December 31. In only five of the thirty-two
did one of the legislative chambers vote no that year.
Eventual success looked highly likely. By 1973, however,
conservative anti-ERA groups (which included sizable contingents of religious fundamentalists) began lobbying at the
state level, at first slowing the forward momentum and
eventually succeeding in derailing the ERA’s progress. By
the end of 1974, a total of thirty-three states had ratified; in
1975, one more; in 1976, zero; in 1977, a thirty-fifth state,
Indiana, ratified. Thirty-eight states were needed to satisfy
the Constitution’s three-fourths requirement. In fact a very
few individual state legislative votes made the difference
between actual defeat and the three more states needed for
victory. A switch of three votes in the Nevada Senate
(1975), two votes in the North Carolina Senate, and three
votes in the Florida Senate (1979) could have added the
ERA to the US Constitution.
As the 1978 Congressionally established deadline
for ratification approached, NOW organized a large
rally in Washington to demand an extension of the
deadline. Congress responded favorably, moving the
deadline to June 30, 1982, but no additional states
ratified.
Conservative political activist Phyllis Schlafly speaking to
the press at a rally in the Illinois capitol opposing
ratification of the Equal Rights Amendment, 1978.
ª BETTMANN/CORBIS
Although the ERA was supported by majorities in
every state in opinion polls for several years, its critics
needed to persuade only one legislative house in at least
thirteen states. Arguments used against it raised fears that it
would lead to unisex toilets, the drafting of women, the
ending of a husband’s obligation to support his wife, the
legalizing of same-sex marriage, mandatory government
funding of abortion, and the drafting of women into
the armed services. At least two of these arguments had
shaky foundations: In the case Orr v. Orr, 440 U.S. 268
(1979), the Supreme Court had already ended the
strictly gender-based, reciprocal legal obligations that a
husband support his wife and that a wife provide her
husband with domestic service (care of the household
and children) and with sexual companionship. Unisex
toilets already were prevalent in trains, airplanes, and
numerous private establishments.
What really sank the ERA in the states where it
failed were generalized fears of a breakdown of traditional family roles and also generalized fears that it
would provide the Supreme Court with one more tool
for overly creative interpretations that failed to honor
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states’ rights. Three of the nonratifying states (Florida,
Virginia, and Louisiana) are southern (with powerful
elements of religious fundamentalism); Utah is home to
a conservative Mormon majority; and Illinois, which
had a 60 percent majority requirement in each legislative house, is home to a rural conservative culture in its
southernmost third.
LEGAL IMPACT OF THE ERA
To understand the legal impact of the ERA one can look
to competing sources, which tell slightly different stories.
While the ERA was in the process of attaining Congressional approval, both its leading proponents and official
Congressional committee reports described its expected
impact. These sources agreed on two guidelines to
describe the only kinds of sex discriminations that would
be allowed in law: either (a) they would involve legislation that compensated women for past or ongoing socioeconomic discrimination against them, or (b) they would
involve classifications that reasonably treated actual physiological differences between the sexes, such as differences
in reproductive function (e.g., work breaks for nursing
mothers).
The US Supreme Court described the anticipated
impact of the ERA somewhat differently, although in
practical outcomes the two different understandings
may merge into agreement. In the case Frontiero v.
Richardson, 411 U.S. 677 (1973), seven justices expressed
agreement on what the ERA would mean as a matter of
law: It would render sex a ‘‘suspect classification’’ just as
race had been rendered a suspect classification by the
equal protection clause of the Fourteenth Amendment.
Suspect classifications in laws are unconstitutional unless
their government defenders can convince the Supreme
Court that the classification is ‘‘necessary for the attainment of a compelling government interest.’’ One example of such an interest is that identified in North Carolina
v. Swann, 402 U.S. 43 (1971). The Court ruled that
North Carolina could not ban consideration of race in
school assignments because the state had never desegregated its de jure segregated school system, and looking at
the race of pupils was necessary for achieving this constitutionally required goal.
By December 1976, when it appeared clear that the
ERA was stalled in its tracks, the US Supreme Court, in
the case Craig v. Boren, 429 U.S. 190, issued a new ruling
on sex-based discrimination. Henceforth laws imposing
sex-based classifications could be upheld only if they were
substantially related to an important government interest.
The Court acknowledged that this was an ‘‘intermediate’’
level of scrutiny, tougher than the ordinary scrutiny that
asks simply if a law treating people differently has some
rational relation to a legitimate government interest, but
not as strict as the test asking that a law be proved
necessary for a compelling government interest. In terms
of practical outcomes under the Craig rule, the Court has
upheld a few statutes designed to compensate women for
past sex-based discrimination, has upheld the federal
government’s refusal to make women register for a military draft even though men must do so, has upheld a
statutory rape law that punished males but not females in
the 14–17 age bracket, and has upheld certain narrow
legislative distinctions between the rights of unmarried
mothers and unmarried fathers with respect to their
children. Many other sex-based classifications have been
declared unconstitutional—starting in 1971, for instance,
in admission to state-run single-sex colleges, in laws
specifying selection of will administrators, and in rules
for payers of alimony and for recipients of child support.
Whether the compelling interest test would have produced different judicial outcomes is not ultimately knowable. What is certain is that constitutional ratification of
the ERA would have secured for the future those feminist
alterations of policy that the Supreme Court did produce
on its own. What the Court has given (in the absence of a
constitutional amendment), the Court can take away.
Amending the US Constitution, Process of;
Gender Discrimination; Ginsburg, Ruth Bader.
SEE ALSO
BIBLIOGRAPHY
Baer, Judith, and Leslie F. Goldstein. The Constitutional and
Legal Rights of Women: Cases in Law and Social Change, 3rd
edition. New York: Oxford University Press, 2006.
Boles, Janet K. The Politics of the Equal Rights Amendment:
Conflict and the Decision Process. New York: Longman, 1979.
Goldstein, Leslie F. ‘‘Constitutional Inequality: Book Review.’’
Constitutional Commentary 3 (1986): 549–76.
Goldstein, Leslie F. ‘‘The ERA and the U.S. Supreme Court.’’ In
Research in Law and Policy Studies, edited by Stuart Nagel,
145–64. Greenwich, CT: JAI Press, 1987.
Mansbridge, Jane J. Why We Lost the ERA. Chicago: University of
Chicago Press, 1986.
Leslie F. Goldstein
University of Delaware
EQUAL RIGHTS
AMENDMENT: STATES
A federal Equal Rights Amendment (ERA), first proposed by woman suffragist Alice Paul, was introduced
in every Congress beginning in 1923. Consisting of three
sections, its chief provision read: ‘‘Equality of rights
under the law shall not be denied or abridged by
the United States or by any State on account of sex.’’
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