[Cross-posted at Daily Kos and My Left Wing.]
If you remember anything from your high school civics class, you may recall that the Equal Rights Amendment was one of the few proposed constitutional amendments in American history that passed both houses of Congress by the required two-thirds majority but failed to be ratified by three-quarters of the state legislatures. I knew that much about the ERA, and no more. But, acting on an exhortation by mediagirl to “give a shit” about the bill, I decided to do a little digging. What I found was a truly appalling state of affairs and an almost complete apathy on the issue of women’s equality among the Democratic cognoscenti.
The first place I normally go when I want to find out about something is Wikipedia, and I wasn’t disappointed. Apparently this deceptively short passage is the text that started a political war over women’s rights:
SECTION 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.
SEC. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
SEC. 3. This amendment shall take effect two years after the date of ratification.
Not so scary, huh? In fact, it’s one of the most blatantly obvious passages of proposed law I’ve ever read. I couldn’t imagine what anyone could possibly have against it. Apparently others feel the same way; the ERA is constitutional law in Canada and in twenty U.S. states, the first of which ratified a version of it all the way back in 1879.
Why in heaven’s name would anyone want to oppose this bill? I sought clarification from the ERA’s most vocal opponent, conservative activist Phyllis Schafly. The website Schafly founded, Eagle Forum, had a nice writeup explaining just why a group led by a woman would oppose a bill making women equal under the law.
1. ERA would take away legal rights that women possessed – not confer any new rights on women.
1. ERA would take away women’s traditional exemption from military conscription and also from military combat duty. The classic “sex discriminatory” laws are those which say that “male citizens of age 18” must register for the draft and those which exempt women from military combat assignment. The ERAers tried to get around this argument by asking the Supreme Court to hold that the 14th Amendment already requires women to be drafted, but they lost in 1981 in Rostker v. Goldberg when the Supreme Court upheld the traditional exemption of women from the draft under our present Constitution.
2. ERA would take away the traditional benefits in the law for wives, widows and mothers. ERA would make unconstitutional the laws, which then existed in every state, that impose on a husband the obligation to support his wife. …
The article goes on like this for some time — basically spewing a bunch of “fears” of dubious authenticity. What gives Schlafly the knowledge base to pontificate about the ERA? Apparently, Schlafly is a lawyer permitted to argue cases before the Supreme Court. I had to admit, that’s pretty spiffy, being able to argue before the Supremes and all. But here’s the thing: she’s never actually argued before the Court. If she had, she might have met a woman who takes a seriously different view on the ERA than she does — Supreme Court Justice Ruth Bader Ginsburg. Ginsburg literally wrote the book on the discriminatory abuses of law that the Amendment sought to prevent. A choice quote demonstrates Ginsburg’s point of view in a nutshell:
With the Equal Rights Amendment, we may expect Congress and the state legislatures to undertake in earnest, systematically and pervasively, the law revision so long deferred. And in the event of legislative default, the courts will have an unassailable basis for applying the bedrock principle: All men and all women are created equal.
Which legal scholar is right? As spiffy as Schlafly’s being a lawyer is, I was pretty sure that Ginsburg’s job was a whole lot spiffier.
Returning to Schlafly’s article, I started to find myself on some more familiar ground:
5. ERA would put abortion rights into the U.S. Constitution, and make abortion funding a new constitutional right. …
6. ERA would put “gay rights” into the U.S. Constitution, because the word in the Amendment is “sex” not women. Eminent authorities have stated that ERA would legalize the granting of marriage licenses to homosexuals and generally implement the “gay rights” and lesbian agenda. …
So now the old warhorses of abortion and gay rights were being trotted out. But are these issues even threatened by the ERA? The Alice Paul Institute argues that abortion and gay rights are not even under debate — they’re simply straw men for the Radical Right to attack in the hopes of defeating the ERA. Besides, I thought, the amendment itself isn’t couched in particularly legalistic language — it’s about as straightforward as an amendment could possibly be.
Phyllis Schlafly notwithstanding, I thought I had pretty much cleared up the question of whether the ERA was a good, commonsense measure — and I didn’t expect to find any opposition from Democrats on the subject. Imagine my surprise, therefore, when I discovered the particular circumstances surrounding the failure to ratify the ERA in enough states.
You see, the ERA was already ratified in 35 states back in the 1970’s, falling agonizingly only three short of the required 38 states. Many legal scholars argue that, despite the time limit placed on the Amendment by the legislators who initially passed it though Congress, the 35 state ratifications of the Amendment still stand intact, patiently awaiting the approval of three more states to become part of the Constitution. It’s not an airtight argument, but since one of James Madison’s original 12 amendments to the Constitution was eventually ratified in 1992, 203 years after it passed Congress, it stands to reason that a mere 33 years difference between the two events in the case of the ERA wouldn’t make much difference. At the very least, if three more states ratified, a test case could be brought to the Supreme Court on the issue.
So what are the states that have not yet ratified the ERA, and why have they not done so? Here’s the list, in alphabetical order:
Alabama
Arizona
Arkansas
Florida
Georgia
Illinois
Louisiana
Mississippi
Missouri
Nevada
North Carolina
Oklahoma
South Carolina
Utah
Virginia
Granted, some of those states, like Utah, are pretty much lost causes for the time being. But three of the states — Illinois, Louisiana, and North Carolina — have Democrats in the Governor’s mansion and in both houses of the Legislature. Why in bloody hell haven’t these three states pushed through ERA ratification in the last thirty years? And why aren’t they doing anything about it now?
And it was then that I began to become not curious, but angry. Angry at the apathy of my nation and of my party toward the needs of one chronically oppressed half of our population; angry at the failure of even the blogosphere to, as mediagirl says, “give a shit” about women or about the ERA.
What is wrong with us? And why do we allow this travesty to go unchecked, when the fix is literally within our grasp? That, Howard Dean, and my fellow lefties, is what I wanna know.
