Constitutionalizing Equality: The Equal Rights Amendment as a Catalyst for Change
Delphi Cleaveland is a former intern with the Women and Foreign Policy program at the Council on Foreign Relations.
The Equal Rights Amendment (ERA) is back in the headlines with new ferocity. In January, Virginia became the 38th state to ratify the amendment, bringing the nation to a quorum on the issue of gender equality under the U.S. Constitution. With three-fourths of the states having ratified the proposed provision, Congress is imminently bound to legislate.
The miniseries “Mrs. America,” starring Cate Blanchett as anti-ERA activist Phyllis Schlafly, has highlighted (albeit insufficently) the decades-long debate surrounding the ERA, which seeks to constitutionally ensure equal rights between men and women on the basis of sex. First drafted in 1923 by two leaders of the suffrage movement—Alice Paul and Crystal Eastman—the ERA was introduced in every session of Congress since, but little progress was made until the mid-1970s. The language of the amendment has not been altered since 1973 and reads simply: "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."
Following Virginia’s ratification earlier this year, the House of Representatives moved swiftly to grant the amendment a new lease on life, by removing the previous 1982 deadline for ratification. In a successful resolution (232-to-183) proposed by Rep. Jackie Speier (D-CA), the House secured the extension, passing the issue along to the Senate, where Senators Benjamin L. Cardin (D-MD) and Lisa Murkowski (R-AK) have agreed to propose similar measures.
A number of prominent organizations have also joined the charge, filing amicus briefs to push the Donald J. Trump administration toward implementation of the ERA. Democratic state attorneys general in Illinois, Nevada, and Virginia filed a lawsuit asking a federal judge to order David Ferriero, the archivist of the United States, to recognize the ERA’s ratification as the twenty-eighth amendment and have it irrevocably added to the Constitution. Though questions remain as to whether the time has run out—Justice Ruth Bader Ginsburg has called for the ratification process to start over—one thing is clear: ratification of the ERA would incontrovertibly advance gender equality, both at home and abroad.
What the ERA Would Mean in the United States
Today, there is no explicit acknowledgement of sex in the U.S. Constitution. As such, the greatest legal protection afforded to women rests on the Equal Protection Clause of the fourteenth amendment. Passage of the ERA would establish an even more demanding guarantee of equal protection to women by raising the level of judicial review to strict scrutiny and would serve as a stronger foundation for requiring non-discriminatory protection than the fourteenth amendment can provide. State laws relating to child marriage, domestic violence, pregnancy discrimination, and parental rights would be buttressed by a clear federal constitutional mandate, expanding protections for women and girls.
Take, for example, the ongoing domestic and sexual violence crisis in the United States. Nearly one in five women (19.1 percent) have been raped and approximately three women die every day as a result of intimate partner violence. For every woman killed, nine more are critically injured. These statistics are expectedly on the rise, amidst pandemic restrictions on nonessential activities that prevent women from accessing resources and escaping abuse. One report from Boston indicated a spike in the levels of physical harm, which were reported to be 80 percent higher in 2020 than in the three previous years combined.
Violence against women and girls is both a cause and a consequence of inequality. It is the result of inherent power imbalances in society that devalue women and girls, and which keep them at a disadvantage to men and boys. By applying a non-discriminatory frame to violence against women and girls, we shift the perspective from looking at individuals victimized by violence to a significant percentage of our populace being denied full and equal protection under the law.
The case of Jessica Lenahan (Town of Castle Rock v. Gonzales) provides a compelling case study. In 1999, Lenahan (formerly Gonzales), a survivor of domestic violence, repeatedly called local police in Castle Rock, Colorado to report her husband’s abduction of their three daughters, in violation of a restraining order. The police failed to respond, and nearly ten hours later, her daughters were found dead inside her husband’s truck.
Lenahan sued the police department for failing to enforce the protective order, and the case made its way to the Supreme Court. Finding that the Due Process Clause of the fourteenth amendment did not give Lenahan the right to enforce the restraining order, the court underscored the inherent discretion of police (despite Colorado’s mandatory arrest law stating that the police “shall arrest, or … seek a warrant for the arrest of the restrained person” upon violation of the restraining order). Had the ERA been formally adopted at the time of Lenahan’s trial, the court may well have found legal grounds to hold the Castle Rock Police Department responsible.
Lenahan subsequently filed a human rights complaint against the United States before the Inter-American Commission. In 2011, in a landmark decision, the Commission found the United States responsible for violating Lenahan’s human rights and recommended significant changes to U.S. domestic violence law and policy—including improvements in women’s equal protection before the law.
Jessica Lenahan has become an advocate on violence against women issues, and has recently become a spokesperson for the ERA Coalition and Fund for Women’s Equality—an organization working to cultivate a groundswell of support for the ERA across the United States.
The Global Context
Across the globe, 76 percent of all countries have at least one constitutional provision on gender equality, with twenty-four having adopted stand-alone clauses securing the rights of women. Moreover, recent data show that eighty-five national constitutions contain language on affirmative action, and the United States—despite being a party to the International Covenant on Civil and Political Rights (ICCPR) and a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)—remains among a small minority of nations (10 percent), including Iran and Sudan, that have yet to constitutionally secure gender equality within their constitutions.
The United Nations has reported that 95 percent of postconflict constitutions contain anti-discriminatory provisions based on sex, and 75 percent of postconflict constitutions reference gender quotas explicitly in comparison to non-postconflict constitutions. This reflects in large part postcolonial trends in constitution-making that encourage more open and participatory constitutional review processes. Moreover, international human rights law strongly echoes the need to explicitly protect women from violence and discrimination.
Why It Matters
Examples from around the world show that constitutional guarantees of non-discrimination can bolster legal challenges and be leveraged by women’s movements to push for more extensive reforms to advance equality. In Nigeria, for instance, the country’s constitutional non-discrimination clause was the basis for a Supreme Court decision invalidating customary inheritance law that denied daughters equal inheritance rights. The High Court of Botswana, similarly, issued a landmark decision on women’s inheritance rights in 2012, overriding a longstanding practice that prescribed inheritance rights to either the first-born or last-born son, and which catalyzed subsequent efforts to combat gender inequality across the country. In Turkey, activists used the constitution to demand reform of the civil code. When the country came under mounting pressure from the European Union to uphold gender equality as a qualification for membership, their activism pushed the Turkish Grand National Assembly to issue amendments to the rights of women within the family.
Constitutions can serve as effective triggers of legislative and policy change in support of gender equality, provided that the opportunities, entry points, and resources are made available for such purposes. In Ecuador, a number of national studies on the feminization of poverty and unpaid labor served as important catalysts for promoting constitutional provisions on unpaid care work. Such provisions and the forces that had promoted them led to far-reaching commitments to legal and policy change, starting with the National Plan for Good Living (2009-2013), which enshrined equality between men and women, consolidated a National Care System for children as well as the elderly, and allocated public resources to the progressive extension of social security to unpaid caregivers.
What’s Next for the United States
The fate of the ERA is far from certain. This summer, the above-mentioned federal judge allowed the five states that rescinded their ratification of the ERA—Alabama, Louisiana, Nebraska, South Dakota, and Tennessee—to intervene in the case to argue against the lawsuit to add the ERA to the U.S. Constitution, bringing new obstacles for the process towards codification. Nevertheless, ERA Coalition polling shows the overwhelming majority of Americans (94 percent) are in favor of the amendment, with near unanimous support from millennials. Its passage would build on far-reaching calls for equality propelled by the #MeToo movement, and provide a critical foundation for new legal challenges and policy changes to advance women’s rights.
Samantha Kiernan, research associate for global health, economics, and development at the Council on Foreign Relations, contributed to the development of this blog post.