An American Embarassment
“Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
Simple words, indeed.
However, it is their very simplicity (creating avenues for elaboration) that helped the Equal Rights Amendment become one of the greatest sociopolitical epic failures in US history.
Suffering ’til Suffrage
Women's suffrage in the United States has a long and often violent history.
Women, traditionally treated as chattel, struggled to gain basic rights. Unfortunately, the architects of this country’s government only concerned themselves with the rights of men.Credit: Library of Congress
The author of the Declaration of Independence, Thomas Jefferson, knew the phrase “all men are created equal” did not literally apply to “all men”. In the first place, Jefferson did not mean “men” in the greater sense of “humankind” (which includes women). Nor did the “men” he mentioned literally include any man walking the planet. Jefferson’s compatriots knew this, as did the intended receiver of the Declaration of Independence, the British King George III.
In the immortal, paradoxical words of George Orwell in his classic allegory, Animal Farm, “Some animals are more equal than others”. For Jefferson and his cohorts the “men” who “are created equal” were not black men, the rabble, or the rough neck bumpkins (regardless of race) roaming the wilds. The “men” in question were the landed gentry, the educated, the enlightened, and the sophisticated as measured by the standards of the day. They were also white.
Jefferson’s opinion of the African race was appallingly racist, despite his affection for, and long-term relationship with, Sally Hemings, his slave who allegedly bore him children. In a famous personal essay on the subject of slavery, Jefferson derided Africans as fundamentally smelly, lazy, poor of intellect, etc.. A sample quote from this diatribe gives the flavor of the whole:
“They secrete less by the kidneys, and more by the glands of the skin, which gives them a very strong and disagreeable odour. This greater degree of transpiration renders them more tolerant of heat, and less so of cold than the whites.”
The Declaration of Independence was predicated on social class issues, not one of basic human rights. And women were beneath consideration in this thought process.
The 13th Amendment to the US Constitution abolished slavery. The 14th Amendment declared that anyone born or naturalized in the United States is a citizen of the United States (a very fundamental concept, but one on rights under the law, and it had to be committed to the framework in writing). The 15th Amendment guaranteed the right to vote regardless of race, color, or earlier condition of servitude.
Of these three amendments about basic human rights only one included women in its language by use of the word “anyone” (the 14th). The 15th Amendment guaranteed freed black men the right to vote; women, regardless of race, could not vote. They were thought too flighty, too shy and retiring to involve themselves with politics, and frankly were perceived as too stupid to properly cast an informed vote. Many women, however, did not believe they were any less qualified to complete a ballot than a man.
The burgeoning suffrage movement was beset with conflict and violence. Many women were beaten or jailed for peaceably marching, demanding the right to vote. Crowds gathered to pelt them with rotted produce at rallies or at public lectures. After a long struggle women were finally given the right to vote by constitutional amendment in 1920. [It is an unfortunate footnote in history that Suffrage became allied with the naïve Temperance movement; the disastrous Volstead Act—Prohibition—rose from women’s suffrage, and was actually passed as the 18th Amendment, before a woman’s right to vote was enacted. Apparently, it was more critical to control the country’s alcohol consumption than it was to give roughly half its citizens a basic civil right.]
The 18th Amendment at least guaranteed a woman could cast a ballot; legally, though, she was not equal to a man, regardless of her race or previous condition of servitude (as noted in the 15th Amendment).
Thus, a white woman in America or a black woman in America or a Native American woman in America did not have the same rights constitutionally as a black man, a white man, or any man.
This perpetual twilight state left many suffragettes despairing of true equality. Technically, women were still chattel, treated as second-class citizens with no more rights than children. Individual state laws also curtailed women’s activities. A federal law was needed to insure that truly all United States citizens, regardless of sex, were equal in the eyes of the law.
Alice Paul (1885-1977) was a social reformer and lawyer from a Quaker background. She graduated from Swarthmore in 1905, then did graduate work in New York City and England.
In London during the years 1906-1909 she became involved in the nascent Suffrage movement abroad. She was jailed on three occasions for her suffragist activities.
She returned to America and received her Ph.D. from the University of Pennsylvania in 1912. That same year she was appointed chairperson of the congressional committee of the National American Suffrage Association.
Alice Paul’s frustration with the slow wheels of progress through this organization led her to help form the more aggressive Congressional Union for Woman Suffrage in 1913. In 1917 the two groups merged to create the National Woman's Party (she would become this party's chairperson in 1942). In the wake of the 19th Amendment’s ratification she focused on the greater issue of equal rights for women, arguing that the right to vote alone would not end legal discrimination based on sex.
In 1923 she drafted the first Equal Rights Amendment and unveiled it in 1 conference. The original text read:
Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.
Congress shall have power to enforce this article by appropriate legislation.
The plain language of this proposal meant the country could and would legally recognize women’s rights as equals under the law and not merely pay lip-service to the idea, and that no state could abridge a woman’s equal status as provided by federal law.
Secondarily, the other critical issue was women were not seeking greater, or more, rights and privileges than men, just evenness and fairness. This “equal but not greater than” stance (upon which the women’s movement firmly stood and stands today) would actually help undermine the proposed amendment’s passage on several future occasions.
Dropping the Ball
The ERA was introduced into both the US Senate and the House in early December 1923.
And in the United States Congress is where the bill languished for the next 47 years.
It was re-introduced in every Congressional session between its début in 1923 up to 1970. It almost never reached the floor of either legislative branch for a vote—it was generally kept in a state of flux, jammed up “in committee” (a vetting process before a bill is voted on).
The ERA did not always sit gathering dust during this time, however. Probably as a direct result of World War II and the increased number of women in the work place (of necessity) women were more visible economically, enough at least for the bill to come to a vote in the Senate (it was defeated by a vote of 38 to 35).
In 1950 and 1953 the ERA passed the Senate; however, this version was different from Alice Paul’s and the women’s movement in one critical aspect. A proviso, called the “Hayden Rider”, was added to the bill. This rider was a landmine to the movement:
The provisions of this article shall not be construed to impair any rights, benefits, or exemptions now or hereafter conferred by law upon persons of the female sex.
The rider, in short, effectively told women that the ERA might mean they would have to give up some rights (not its intent or its stated purpose by no stretch of the imagination) and that for their own protection language was added so they wouldn’t lose these feminine “benefits”. [Whatever these “benefits” of womanhood were is unclear. The only thing possibly of interest then might be the issue of forcibly conscripting women into combat in a draft situation. Beyond that, women had no other real “benefits”— they had fewer, in fact.]
The “protective” clause, rightfully, rendered this version of the ERA unacceptable to Alice Paul and her cohorts, and they withdrew their support of the bill. The Hayden Rider left the amendment subject to easy repeal or fluid interpretation, meaning almost any act of discrimination against women could be interpreted as maintaining their female “rights and benefits”.
Opposition during this mid period of the ERA’s life came from surprising quarters.
Labor unions condemned the bill because they felt the amendment would invalidate protective labor legislation for women. [The reality is they were worried about having to bargain collectively for their female members to be paid the same as male union members for the same work.]
Most shockingly, Eleanor Roosevelt (a global human rights proponent) opposed the ERA on the grounds that women needed government protection. She also argued the side of the labor union issue: men did not want the only labor protections (at the time only extended to women) abolished before they could be extended to men as well! Meaning, union men did not want women to be equal under the law but they wanted the women’s labor benefits for themselves without the ERA. [These kinds of gender-based benefits would disappear under the ERA. Remember, the object of the bill was to make women equal, not greater.]
Northern Democrats (aligning themselves with the anti-ERA labor unions, which in turn were also supported by southern Democrats and most Republicans) were against the bill. Both parties would grudgingly add passing of the bill as a hot-button issue for election rhetoric but it wasn’t until the early 1970s any sincerity was seen.
Champions of the Cause?
The arch-conservative President Dwight D. Eisenhower took up the cause himself, the first time a president had done so. He asked a joint session of Congress to pass the ERA. When the bill was “re-proposed” it again had the onerous Hayden Rider added. This, of course, was rejected by the National Woman's Party, who then asked that the ERA be withdrawn.
President John F. Kennedy during his campaign claimed he supported the ERA and this stance helped sway many women voters for him. Once in office, however, he reneged on his campaign platform because of his ties to labor unions and the labor community. The Kennedy administration was openly hostile to the bill.
Esther Peterson (the highest-ranking woman in Kennedy’s administration and a feminist) publicly opposed the ERA. She disparagingly referred to the National Woman's Party members (most of them, like Alice Paul, aging suffragettes) as “The Old Frontier” (an ironic play on the Kennedy Administration’s bold policy moniker, “The New Frontier”).
As a concession, Kennedy made a pretense of working toward passage of the ERA. He appointed a commission of women to allegedly study the problem of sex discrimination in America. The group consisted of many opponents of the bill; it was chaired by none other than Eleanor Roosevelt. She had actually dropped her loathing of the amendment in the 1950s when she aggressively supported the United Nations Charter and the United Nations Declaration of Human Rights (which actually contained language about female equality in it almost identical to the ERA). Upon review, and deciding that labor was no longer threatened by the ERA, Eleanor Roosevelt proffered her opinion the bill could be introduced at any time.
This commission, meanwhile, did do some good on its watch.
It helped win passage of the Equal Pay Act of 1963. This law banned sex discrimination in pay in a certain a number of professions (feminists demanded in the 1970s the law be amended to include all the professions initially excluded). Also at the commission's urging, Kennedy issued an Executive Order eliminating sex discrimination in the civil service.
The commission, most of whom did not support the ERA but supported labor unions, made several recommendations based upon their findings, all of which fell short of actually supporting the passage of the ERA.
Naively believing the few laws put into effect during the commission's term were enough to affect social change the group concluded, at the end of 1963, that “a constitutional amendment need not now be sought”. The next year, the Civil Rights Act of 1964 banned workplace discrimination not only by race, religion, and national origin, but also on the basis of sex. Alice Paul and others were instrumental in lobbying for the last part about sex discrimination.
Feminism developed more momentum in the early 1960s. Betty Friedan, a feminist and author, wrote what became a feminist manifesto in 1963, The Feminine Mystique, that was a bestseller. Her focus was on social and economic equalities.
The network of women's rights groups formed by Kennedy's national commission (combined with severe frustration over women's social and economic status) aided the movement’s gain in members. Women were angry. The fruits of the federal Kennedy women's commission (the Civil Rights Act and the Equal Pay Act) turned out to be hollow victories for women: the government and the Equal Employment Opportunity Commission both failed miserably to punish violations under either act when it came to women.
In June 1966, an erudite group of feminists (including Betty Friedan) formed the National Organization for Women (NOW). Their first demand was full equality for American women. In 1967, NOW endorsed the ERA (with some nudging from Alice Paul).
Free Not to Say “No”
In the meantime, the country’s moral tone had changed considerably. It was no longer the Beaver Cleaver America; it was the America of the Beatles and hippies. More social constraints were removed from casual sex. The Pill took away the fear of pregnancy, and society eased up in its condemnation of non-marital sex.
Sexual freedom for women grew, but it was a double-edged sword. For example, most men felt a woman’s freedom sexually meant women no longer had any excuse to say “no” (even if she simply didn’t feel like it or wasn’t attracted to her pursuer). Women probably engaged in more blasé sex than they likely wanted because of social pressures.
Women demonstrated for change: they marched against the Vietnam War, they fought for reproductive rights, but they could not get the ERA passed. Credit: Bill G. Chambers, 2011In the late 1960s as feminism developed into something more militant, “bra burning” became a demonstrative public event. [The “burning” itself was a myth created largely by the press—most bras were simply publicly stripped off and cast aside or dumped in a symbolic barrel, shedding the restraints as it were. It was only later after the press stories ran about “burning” that real burning occurred.]
Women were pandered to and patronized as well. Their “great strides” in equality led one cigarette manufacturer to congratulate them for having “come a long way,” and then undermining and diminishing the achievement by adding the downright silly and demeaning diminutive “baby” at the end of the ad.
NOW’s lobbying efforts by the late 1960s made it a serious force in Washington, DC. In February 1970, the group successfully picketed the United States Senate. At the time a subcommittee was engaged in hearings for a Constitutional amendment lowering the voting age to eighteen. Women disrupted the hearings, demanding a hearing on the ERA. They were given an audience with the Senate.
In the late summer of 1970 millions of women held a country-wide Women's Strike for Equality. The strike demanded full social, economic, and political equality. In Washington, DC, protesters presented a sympathetic Senate leadership with a petition for the Equal Rights Amendment; Congressional hearings began on the subject. By March 1972 the bill had passed both the House and the Senate (the Senate bill almost stalled when a North Carolina senator tried to add a rider to the bill exempting women from the military draft).
The ERA was then passed on to the state legislatures with a seven-year deadline for ratification.
And this is where the epic fail happened: the states dragged their feet.
Many came along quickly, however. There were 30 states that had approved the amendment by the end of 1973. By 1977, though, that number had grown to only 35 (out of 38 needed for ratification). The time limit of seven years ran out; the ERA was dead.
Congress, however, in 1978, extended the ratification deadline by 39 months. During this extra time, no new states ratified the amendment; to make matters worse, by the 1978 call for the extension five states that had previously ratified the amendment rescinded their offer.
There are many political machinations involving the rescission states, one of which is Nebraska. In its case Nebraska rescinded only one part of its own legislative agenda on the matter, but it is unsure if this applies to the whole ERA ratification for the state or not.
Dependent upon whom one asks, the ERA has 35 states ratified (and needs three more), or it is short by the states that rescinded plus a couple more. Furthermore, several states have ratified the ERA in one of their legislative branches but the other branch failed to do so. There is also dispute about the deadline extension granted by Congress in 1979. Some argue the extension was invalid (because the extension was passed with a simple majority vote versus the two-thirds majority vote normally reserved for such matters).
Twenty-one states have incorporated a version of the ERA’s language into their state constitutions. Bizarrely, out of this group, five of them did not ratify the federal version! [Apparently, the ERA is good enough for a state’s constitution but not the US Constitution).
The Equal Rights Amendment is re-introduced faithfully at each new session of Congress, most recently in June 2011. [Though it has been brought up once again in 2015, it is not yet on the floor for serious consideration, merely being “reviewed” by a judiciary committee.]
Currently, it is unclear what its future holds. Does the ERA need only three states to ratify it? Or seven? Or must the entire, tedious ratification process start all over again? The ERA is in limbo; it is an epic failure that should have been an easy decision to make.
Its failure, though, is a national and global embarrassment to the United States, a black eye on its glorious face because this country cannot make a simple declarative statement of its belief in equality for all its citizens.
Read it again:
Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
Is it really so difficult to add this simple phrase to the United States Constitution?
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