The Impact of Equal Rights Amendment (ERA) in Current Times

Introduction

Section One of the Equal Rights Amendment established that ‘Equality of Rights under the law shall not be denied or abridged by the United States or any state on account of sex.’

The early 20th Century witnessed a rise of female activism. This unrest manifested in 1923 America as Gem Eastman and Alice Paul presented a new demand for The Equal Rights Amendment at the Women’s Rights Convention. However, the ERA did not gain considerable support in the 1920s because divided women were against each other. During this time, women in working environments were centred on improving condition assurances for women, which resulted in concerns that the ERA would jeopardise laws that made industrial facilities more secure and restricted the number of hours women could work. Nevertheless, on March 22, 1972, Congress finally accepted the ERA and sent it to all the states for ratification, so that they could autonomously decide whether it should be implemented into the Constitution. Thirty-eight out of fifty states had to approve, the debate was split between two figureheads: Eleanor Smeal for the ERA and Phyllis Schlafly against it. By 1977, thirty-five of the states approved the amendment. In 1978, Congress decided to delay the March 1979 deadline to June 30, 1982, so more states could address their decision. However, in that time, no other states ratified, and the ERA was at a three states loss. But as time progressed, forty-five years after the ERA had been sent through Congress. In 2017, Nevada became the 36th state to ratify, with Illinois as the next state to ratify in May 2018. Further still, in a historic vote, Virginia finally voted in favour of the Equal Rights Amendment on January 15, 2020, attaining the qualification that 38 states must approve the Amendment in order to add it to the Constitution. However, since the Amendment did not pass by its deadline, it brings up the critical debate if the US Constitution should have a new Amendment XXVII.

This essay will establish whether the ERA would still have a significant impact in current times, or if these laws have already been achieved. In order to evaluate the significance of the ERA, equality must be defined, which, is the ‘state of being equal, especially in status, rights, or opportunities’ Throughout this debate, it will be considered: how far equal rights have developed since the1920’s, and if the ERA would make effective changes presently. To evaluate the value of the ERA, it must be considered if the rights proposed in the ERA have already been achieved, politically and economically. Through this, wider debates from political bodies will be discussed, including those from proponents and opponents of the ERA. Finally, this essay will examine the global debate of Equal Rights, and if they have truly been attained to the extent which solves the issue of gender inequity.

Would the Equal Rights Amendment Make a Significant Difference Today?

It is clear that the Equal Rights Amendment would make a significant difference because, presently, the U.S. Constitution has no categorical recognition of gender. As such, women depend on the Equal Protection Clause of Amendment XIV in order to have some degree of legal protection. Ratifying the ERA would guarantee sufficient fortification towards women’s rights, serving as a stronger establishment against non-discriminatory violations within the Constitution by raising the standards of judicial scrutiny. With a clear federal statutory obligation, state laws to safeguard pregnancy and abortion discrimination, marriage, domestic violence and parental rights would all be significantly augmented.

Those who oppose the enactment of the Equal Rights Amendment argue that Amendment V and Amendment XIV already codify the rights of women. Both of these guarantee citizens specific rights, with Amendment XIV, further overriding state laws which undermine ‘any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ Therefore, the Supreme Court acknowledges that women are citizens of the US and have secure rights under both Amendments. May 1973, Fontiero v. Richardson posed as a breakthrough for gender equality enforced by Amendment V. Gaining public exposure, the Court was pushed to identify the legal disparities affecting women. Frontiero marked the support of the high court’s willingness to combat gender discrimination seriously. The case outlines the distinctly unequal treatment regarding the role of women. Sharron Frontiero was a US Air Force Officer. She married Joseph Frontiero, who was a full-time American college student. Congress had passed a law that allowed individuals in the military to claim benefits so that they could re-enlist and continue serving while supporting their families. Under this law, military officers, with partners they need to support, are subject to a larger housing grant and free health care. However, Congress had made clear distinctions between men and women who applied for these benefits. While the men could easily declare their spouse as a subordinate if they were married, a servicewoman, like Frontiero, could only claim their husband as subject to dependency if he was reliant on more than one-half of the benefits. Consequently, Fronteiro was denied these additional aids. In this case, it is clear equality had been undermined, with Frontiero claiming that this statute ‘deprived servicewomen of due process’. The Supreme Court ruled that, in an 8-1 decision, the statute was unlawful because it wrongly discriminated against women, and Fronteiro won her case. Those who believe that the ERA is irrelevant and believe there is no reason to ratify it would argue that rights are already sufficiently protected, as evidence suggests there are already successful checks within the Constitution which are compatible with the Amendments V and XIV, defending women’s rights. Furthermore, the Fronteiro case provides proof that the Supreme Court already enforces strict scrutiny against laws which could implement gender inequality.

Nonetheless, in cases of domestic and sexual violence within the United States, it is that discrimination against women is still extremely prevalent and their rights are not adequately protected by Amendment V nor Amendment XIV. Therefore, the prohibition of sex discrimination enshrined in the Equal Rights Amendment would provide additional support against areas like gender-based violence. The lack of recognition in the Constitution has made ‘male power and privilege appear natural and normal’ as it has been systematically built into the social construct of gender-based inequality. In 2015; the US estimated that 43.6 million (1 in 3) women suffered sexual, physical andor stalking by their intimate partner in their lifetime. Furthermore, 21.3% (an estimated 25.5 million) of women had also endured a rape attack during their life. Moreover, these statistics are expectedly on the rise during the Coronavirus pandemic, with an estimated 10% increase of domestic violence calls in the first 5 weeks of social distancing, and as pandemic restrictions on nonessential activities continue, victims are confined with their abusers for long periods of time, so statistics are most likely underestimated. Violence toward women is both a foundation and an outcome of the inequality still present in the US. As American conformities idealise that children must have a father-to-child relationship, they have become the basic objectives to create the ideal basis of society; solving problems privately is valued higher than raising child-rearing as a single mother.

New legislation to improve societal inequalities of domestic violence was passed in 1994, the Violence Against Women Act. It did help to fund resources for victims and provide protection to women who experienced abusive behaviour, with Biden calling it his “proudest legislative achievement”. Before the Act, stalking was not identified as an illegal offence, however, it is still often not recognised by law enforcement, abusers, or even by the victims for the danger it causes today. However, the Act's impact has been limited because stalking and its consequences are still not recognised. The fact that 1 in 6 women in America is still victims of femicide stalking by partners or ex-partners proves that women are still not receiving sufficient protection. In stark contrast, the Violence Against Women Act is weak as it requires reauthorisation every five years. It does not have the permanence of a constitutional amendment, like the ERA. Acts can be repealed by a simple majority and can have a definite term, as opposed to a constitutional indefinite term of an amendment, which can only be removed through another one replacing it. Evidently, since being implemented, the VAWA has been reauthorised three times in 2000, 2005, and 2013. With that being said, the 2013 reauthorisation was suspended because some Republican congressmen and council members did not approve the bill explicitly declaring same-sex partners, the 22% of Native Americans living on reservations, or immigrants who ate trying to get a valid visa and documentation. Soon after lengthy debates held in the House and Senate, the reauthorisation finally passed. But again, due to the 2018 shutdown of the US government, the Act was terminated on December 21, 2018. Then, with the House of Representatives, it was briefly reinstated via the short-term spending bill on January 25, 2019, with bipartisan support. Nevertheless, it expired for the final time on February 15, 2019. This clearly demonstrates the unreliability of the Act, and its inability to remain a strong federal law. In addition, of the Department of Justice’s 28-billion-dollar budget, only 489 million dollars is sparingly spent on the VAWA. This shows that the VAWA is weak legislation, with minor spending, it can easily be rejected or ignored, and as Leigh Goodmark explains, women have ‘primacy of autonomy in the American political and legal systems, but are not receiving it. By ratifying the ERA, women would have constant protection and justification for the culpability of abusers under a certified Constitution, ensuring a consistent check of safety. A compelling case that shows the Violence Against Women Act is weak and supports the solidarity of protection that the Equal Rights Amendment would be is United States v. Morrison. Christy Brzonkala was a freshman at Virginia Tech, who was assaulted and raped multiple times by two male students. After filing the claim under Virginia Tech’s Sexual Assault Policy, Morrison was suspended for two semesters for unauthorised sexual conduct. However, Crawford was not found guilty, and therefore not punished for his actions. By using the university's administrative system, Morrison filed a plea and won, resulting in his punishment withdrawal. Brzonkala sued Virginia Tech for the neglect of safeguarding students and the denial of justice for victims of sexual assault. She further filed suit against Morrison and Crawford for their actions, arguing that Morrison's and Crawford infringed the VAWA. In a 5-4 decision, the case was overruled and invalidated on the ground that this was unconstitutional. After losing the case, Brzonkala was left with no justice for the crimes committed against her. This evidently suggests that without the ERA, women are left without adequate protection under the Constitution.

Females who request police security in circumstances involving sexual assault are regularly ignored and left unprotected. Domestic abuse towards women is a reoccurring example of discrimination that the Equal Protection Clause of Amendment XIV and the Violence Against Women Act have neglected to rightly defend against. If implemented, the ERA would play a fundamental role in certifying rightful protection for women, that they would then be legally eligible for, and that law enforcement and public organisations, as the above example highlights with colleges, would be held liable if these basic human justices were infringed. It would further constitutionalise gender equality and enforce states to arbitrate violence against women as a custom of female discrimination.

The Political Debate

It is clear that gender discrimination remains a contemporary problem. The recent #MeToo Movement and Women’s March in Washington illustrate the public’s awareness of inequality within the US system is increasing, and activism is resurging. In 2020, there was a record figure of females nominated into Congress and local governments, with 23.6% in Congress and 25% in the Senate. Among the women making it to their new positions within the political body are social workers, veterans, military officers, judges, teachers, lawyers and refugees. Dr Schrier will be the first female Paediatrician among the 16 doctors to sit in Congress. By having more women sitting in Congress, there will be significant changes within debates due to their diverse backgrounds and life experiences, including Democrat Bush who became the first woman of colour to serve in Missouri’s congress. There are now female specialists on schooling, human trafficking, the homeless crisis and gun violence, bringing vital perspectives and notions in improving policies. Amidst this focus on gender discrimination disputes, legislators and political movement organisations like the ERA Coalition highlighted the amendment, putting it back on the political stage. Steven Andersson, Illinois’ State Representative contended “This is our generation’s chance to correct a long-standing wrong”. With every recent ratification, there has been increased bipartisan interest in Congress, showing that the Equal Rights Amendment implementation is still a significant and relevant debate.

However, opponents of the ERA would support the Justice Department’s Office of Legal Counsel’s dispute that the deadline given for the ratification is mandatory, thus, the ERA ‘is no longer pending before the States’. David Ferriero, the 10th Archivist of the United States stated that until the federal court validates Virginia’s ratification, the ERA cannot be constitutionalised. On account of Virginia’s ratification vote, it has incited a controversial debate that the ratification deadline is mandatory and states that ratification after the deadline should not be included in the vote. Therefore, only thirty-five states have officially ratified under the argument of opponents to the ERA. Withal, there have also been strong advocates within the federal government, including state representatives, who have challenged the ERA. One Trump administrator from the Department of Justice and the South Dakota legislature who revoked their ratification vote maintained that under the sunset provision, the deadline automatically expires. So, in order for the ERA to be constitutionally compliant, the ratification process would have to start over with a new due date, so that it is justly implemented under official deadline rules. However, since the inauguration of Joe Biden to office in January 2021, the ratification of the ERA has become a key investment into his ‘Agenda for Women’. Furthermore, Vice President Kamala Harris has also said that she will stand by Biden to make the ERA part of the Constitution and achieve economic and social justice for women.

Conversely, a stronger case presented for the ratification of the ERA is that the deadline is not mandatory, since the ERA specifically writes that ‘Congress shall have the power to enforce, by appropriate legislation, the provisions of this article’ the decision of constitutionalising the Amendment does not require the examination of the ratification deadline. Furthermore, by maintaining precedence through Article Five, Congress may adjust the timeframe for authorisation, sustaining the legality to amend and prolong the ratification due date, or remove it altogether. Senator Borah argued that ‘as the Constitution now exists, there is no limitation upon the time within which the States may ratify an amendment.’ Based on this argument, it is clear that the ruling made under this deadline is not the decisive element for authorisation, because the final ruling made my Congress takes higher authority. Moreover, first proposed in 1789, Amendment XXVII of the U.S. Constitution was ratified 203 years after it was brought forward to Congress, clearly showing that the deadline for constitutionalising amendments is not relevant under Congress’ final decision. Therefore, it is fundamental to understand that if Congress choose to accept the proposition 48 years later, the ERA has reached its 38-state goal, thus, giving the Amendment every ground to be enforced.

Politically, with the authority of Congress, and in the unprecedented attacks of Trump’s government against conceptions of human rights and female discrimination, and with the mainstream of US citizens backing the ERA; it is in an imperative and befitting time to be ratified.

The Economic Debate

One clear dispute for the ratification of the ERA is pointed out by Jennifer Weiss-Wolf, a leading figure of the Brennan Centre For Justice. Weiss-Wolf highlighted that the amendment would create a common agenda to ‘formally acknowledge systemic biases that permeate and often limit women’s daily experiences.’, thereby permitting Congress to apply laws enforcing parity through new legislation and therefore result in an improvement to the processes of commercial imbalance adopted in present laws.