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date: 23 February 2020

The Equal Rights Amendment

Summary and Keywords

The Equal Rights Amendment (ERA), designed to enshrine in the Constitution of the United States a guarantee of equal rights to women and men, has had a long and volatile history. When first introduced in Congress in 1923, three years after ratification of the woman suffrage amendment to the US Constitution, the ERA faced fierce opposition from the majority of former suffragists. These progressive women activists opposed the ERA because it threatened hard-won protective labor legislation for wage-earning women. A half century later, however, the amendment enjoyed such broad support that it was passed by the requisite two-thirds of Congress and, in 1972, sent to the states for ratification. Unexpectedly, virulent opposition emerged during the ratification process, not among progressive women this time but among conservatives, whose savvy organizing prevented ratification by a 1982 deadline. Many scholars contend that despite the failure of ratification, equal rights thinking so triumphed in the courts and legislatures by the 1990s that a “de facto ERA” was in place. Some feminists, distrustful of reversible court decisions and repealable legislation, continued to agitate for the ERA; others voiced doubt that ERA would achieve substantive equality for women. Because support for an ERA noticeably revived in the 2010s, this history remains very much in progress.

Keywords: Equal Rights Amendment, feminism, constitutional law, 20th-century women, gender relations, human rights, labor law, Title VII, gender discrimination, protective labor legislation

Origins of the ERA

The Equal Rights Amendment (ERA) was the brainchild of suffrage activist Alice Paul. A 1905 graduate of Swarthmore College, Paul went to England for postgraduate studies in social work and the social sciences. While there, she participated in the English struggle for women’s suffrage, a movement more militant than the one in the United States because it was rooted in working-class politics and the tactics of labor organizing. After returning to the United States in 1910, Paul completed a PhD at the University of Pennsylvania and joined the American suffrage movement. Within the biggest US suffrage organization, the National American Woman Suffrage Association (NAWSA), Paul advocated the adoption of tactics forged by the English suffrage movement. In keeping with those commitments, she organized a massive march in Washington, DC, on the day before Woodrow Wilson’s first presidential inauguration in 1913. She put the new president on notice that she and her co-activists were holding him responsible for the enfranchisement of American women. If he offered the cause no support, they threatened, they would see him voted out of office (see Figure 1).

The Equal Rights Amendment

Figure 1. Alice Paul in 1915, several years before she authored the Equal Rights Amendment.

Source: Records of the National Woman’s Party, Library of Congress.

Not long after the march, Paul split from NAWSA, which she considered too timid, and formed the National Woman’s Party (NWP). The NWP was responsible for the most dramatic tactics in the US struggle for women’s suffrage: picketing the White House, facing jail terms for allegedly obstructing traffic during protests, and enduring forced feedings during hunger strikes while incarcerated. Spectacular tactics and the sacrifices made by NWP members on behalf of suffrage made them heroes to many in subsequent generations of feminists.1

The massive, multifaceted, and decades-long US women’s suffrage movement achieved its greatest triumph in 1920 when the Nineteenth Amendment to the US Constitution was ratified. The Nineteenth Amendment prohibited the federal government and the states from denying the vote on the basis of sex, thus promoting the enfranchisement of millions of women who had not already been enfranchised by their states. It was a monumental victory.2 But it was not a complete victory. Many states continued to bar millions of women from the polls based on factors other than sex. In the South, for instance, former Confederate states excluded most African American women from the vote through poll taxes, unfairly administered literacy tests, and brute violence: the same measures by which they had largely disfranchised African American men.3 Native American women living on reservations remained disfranchised because they were not eligible for US citizenship; all Asian immigrant women were barred from the polls because they were not allowed to naturalize. Even after these groups gained access to citizenship, many states kept them from voting by implementing other discriminatory eligibility requirements.4

White suffragists did not generally pursue voting rights for racial minorities after 1920 but turned instead to educating newly enfranchised women for political participation—or, in Alice Paul’s case, to the eradication of laws that discriminated against women. Laws distinguishing between women and men were widespread in the 1920s. Many states still denied married women control of the wages they earned and the property they brought into the marriage, for instance. These monies and property belonged to husbands. Many states gave women no say in the disposition of wealth accumulated by a couple during marriage. Most states excluded women from jury service. Wives had few grounds on which to sue for divorce. As of 1922, forty-five of the forty-eight states allowed husbands to decide where wives lived and voted. Many southern states identified the father as the sole guardian of his children, while mothers had no legal rights with respect to their upbringing. Some states withheld particular governmental offices from women.5

Activist progressive women generally agreed in the early 1920s that such laws should be rescinded. But not all considered repealing these laws to be their most urgent mission. Many black activists prioritized antilynching legislation, expanding voting rights in the South, and increasing educational and employment opportunities. Education and workplace justice were especially important to Latinas, and prominent Native American feminists focused on issues of citizenship, voting rights, and sovereignty for their communities.6 The mostly white activists who made a priority of rescinding sexually discriminatory laws differed as to strategy. Some preferred that the laws be brought down one at a time in order to preserve any that might benefit some women. Fearing such a process would take too long, others advocated that each state accept a “blanket” equal rights bill that in one measure would abolish all legal discriminations against women. Yet others believed that an amendment to the US Constitution was the best route to gender equality. Among the latter were Alice Paul and her National Woman’s Party.7

In 1923, the NWP’s proposed Equal Rights Amendment to the US Constitution was introduced in Congress. It 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.”8 That proposal created a firestorm within progressive women’s circles.

Progressive Opposition to the ERA

At issue were women-only labor laws. Since the 1890s, some wage-earning women and their progressive allies had agitated for state-level maximum hours laws, minimum wage laws, and requirements of rest periods for the increasing numbers of women in the industrial labor force. Activists sought protective labor laws exclusively for women because the courts proved more amenable to such laws for women than for men. In 1905, indeed, the US Supreme Court ruled in Lochner v. New York that a state law limiting the number of working hours for men in some industries was unconstitutional because it violated what the court maintained was a right to freedom of contract.9 For a time, that decision sounded a death knell for labor laws protecting men. In 1908, however, the Court decided in Muller v. Oregon that states could limit the working hours of women in industrial jobs, a decision in which the justices agreed that women workers warranted state protections unavailable to men because of their unique physical vulnerabilities and reproductive responsibilities.10

Many women workers and their allies saw single-sex protective labor legislation as a way to address the gender-based discriminations that women faced in the labor market. The reason that so many activists advocated minimum wages exclusively for women workers, for instance, was because women workers’ wages were generally too low to support them. Women were routinely hired only for lower-paying jobs than men, and they were paid half the wages of men in similar positions. Lower wages prevailed not because women were less productive than men but because of what one reformer called the “traditional conception of woman as a dependent” and the “time-worn opinion” that every working girl has “somebody to keep her from having to live entirely on the wage she earns.”11 Gender discrimination, in other words, depressed women’s wages, and some activists hoped that minimum wage laws might ameliorate the effects of that discrimination, helping to pull wage-earning women out of dire poverty. Even though minimum wage laws riled employers more than other types of protective laws, were less popular with the labor movement, and on less certain legal ground than maximum hours laws, sixteen states and the District of Columbia enacted minimum wage laws for women workers before 1923.12

Proponents of protective women-only labor laws also argued that women were biologically different from men and that as a result of their reproductive uniqueness, women required greater protections in the workplace. According to progressive feminist Florence Kelley:

The inescapable facts are . . . that men do not bear children, are freed from the burdens of maternity, and are not susceptible, in the same measure as women, to poisons now increasingly characteristic of certain industries, and to the universal poison of fatigue. These are differences so far reaching, so fundamental, that it is grotesque to ignore them.13

Arguments like these, which insisted on the unique vulnerabilities of women and their special need for protection, were anathema to equal rights feminists.14

Some of the most effective advocates of protective labor laws for women workers—namely, leaders of the Women’s Trade Union League and the National Consumers’ League—argued that single-sex protective laws might eventually prove an opening wedge for the legal protection of all workers. That argument resonated when in 1917 the Supreme Court upheld a state maximum hours law for men.15 But it would be another twenty years before the constitutionality of protective labor laws for both men and women was firmly settled. Before the Great Depression, even men in the labor movement generally preferred that such legal interventions be restricted to their female counterparts. They believed that collective bargaining could win men greater benefits at less risk to their independence as a group.16

So effective were arguments for single-sex labor laws that most states enacted some kind of women-only labor legislation in the early 20th century. From 1908 to 1917, nineteen states and the District of Columbia passed maximum hours laws for women, and another twenty states strengthened existing laws. By the time the Nineteenth Amendment was ratified in 1920, forty-three of the forty-eight states—as well as Washington, DC, and Puerto Rico—had maximum hours laws for women workers. By 1920, twelve states banned night work for women in certain occupations, mostly as a way to enforce maximum hours laws. Some states required rest breaks for women in particular occupations, and others limited the amount of weight that women workers could be required to lift.17

Those who had worked hard for these protections and who believed they should be extended rather than rescinded saw the ERA as a threat and its author, Alice Paul, as an agent of the business class. In fact, Paul’s most visible opponent, Florence Kelley, referred to her and her ilk as the “Little Sisters of the U.S. Chamber of Commerce.”18 Because the ERA would prohibit states from making laws that treated men and women differently, Kelley and her cohort believed the amendment would render single-sex labor laws unconstitutional, and employers would be free to exploit women workers without limit. While well-educated women such as Alice Paul, who worked in professional jobs unregulated by protective labor laws, would not lose anything from abolishing single-sex labor legislation, wage-earning women had much to lose. Until women workers no longer faced unique forms of discrimination in the labor market or laws protecting both women and men were actually in place, women needed, according to pro-labor feminists, the special protections offered by women-only laws. Indeed, millions of wage-earning women would have lost significant workplace protections had the ERA been adopted in the 1920s.19 It made sense, then, that most progressive women activists—black and white, working class and middle class—believed that justice for women in the workplace—under conditions prevailing in the 1920s—required that the law treat women and men differently. This reasoning explained the ferocious opposition that prevented the ERA from advancing through Congress until the early 1970s.

Changed Contexts Transform the Meaning of the ERA

Between 1923 and the early 1970s, various events gradually weakened that opposition. The first came in 1938, when the US Congress passed the Fair Labor Standards Act (FLSA). The FLSA was a national minimum wage and maximum hours law for women and men working in particular industries. In 1941, the US Supreme Court ruled the law constitutional.20 Since advocates of women workers might now win the same protective labor laws for both women and men, the ERA gained some new adherents. The pro-business Republican Party endorsed the ERA in 1940. Because of their support for working people, Democrats were a harder sell. Still, once the Supreme Court ruled in favor of the FLSA, even some Democrats supported the amendment.21

No massive shift occurred at this point, however, because the FLSA did not cover even half of women workers. Most wage-earning women of all races labored in industries that were excluded from the benefits of the federal law. These included agricultural labor, domestic service, and industries not involved in interstate commerce. For many, state laws exclusively for women continued to provide their only guarantee of minimum wages, maximum hours, and rest periods, though even state laws rarely protected the occupations in which most women workers of color found employment.22

The situation changed as FLSA’s coverage expanded dramatically in the 1960s and early 1970s. Congress amended the law in 1961, 1966, and 1974, and each of those amendments protected larger numbers of women workers. By 1974, the vast majority of women workers were covered by the federal law and so were less dependent on single-sex labor laws than they had been previously.23 These expansions of the FLSA constituted part of the new context that diminished opposition to the ERA.

Another change was the desire of increasing numbers of women workers to challenge the gender segregation of the labor market. The US labor market had long assigned some occupations to women and others to men. In general, jobs open to women offered lower pay and fewer benefits than those open to men, and they provided little opportunity for advancement. Until the 1940s, the response of female wage earners to these inequities had generally been to try and improve women’s jobs. In the post–World War II era, however, some wage-earning women began to think that their best chance for improved working conditions was to gain access to jobs usually reserved for men.24 This new strategy was evident in efforts by some women workers to rescind state-level maximum hours laws, which kept them from competing for jobs that required overtime, as well as to repeal laws that barred women from specific jobs such as bartending.25

Finally, the unexpected addition of “sex” to Title VII of the Civil Rights Act of 1964 paved the way for the ERA among previously wary progressive women activists. Title VII of the landmark legislation for racial justice prohibited employment discrimination on the basis of race, religion, color, national origin, or sex. What the act would mean for women workers was not at first clear, but some feminist activists pushed Title VII’s enforcement agency, the Equal Employment Opportunity Commission (EEOC), to interpret the law to mean that single-sex labor laws were now illegal. In 1969, the EEOC complied in a judgment that rested on and supported a series of court decisions ruling that protective legislation for only one sex violated Title VII.26

Progressive Support Coalesces in Favor of the ERA

Once protective labor legislation for women-only lost viability, interest in the ERA significantly broadened; the amendment no longer severely split the community of progressive women activists. Some in the labor movement did continue to insist that women needed protection from mandatory overtime in order to meet their family obligations, and they opposed the ERA. But they constituted a decreasing constituency. By the early 1970s, the proposed amendment enjoyed the support of the vast majority of mainstream women’s organizations.27

The best-known advocate of the amendment in this period was the new National Organization for Women (NOW). Evidence of an emerging mass movement for women’s advancement, NOW was founded in 1966 by a diverse group of activists determined to pressure the EEOC to enforce the sex provision of Title VII, something the agency had not yet systematically undertaken. NOW’s first president was Betty Friedan, author of the 1963 bestseller, The Feminine Mystique, which argued that suburban middle-class women needed paid labor to overcome a malaise created by their entrapment in domesticity.28 At the second National Conference of NOW in 1967, Alice Paul and other longtime members of the NWP helped to outvote the ERA’s opponents and make the amendment a primary goal of the organization. It was a deeply divisive decision. Even though many individual women labor leaders had come to oppose protective labor legislation, their unions had not made that leap, and this decision temporarily forced them out of the organization.29 The decision also agonized such black feminists as Pauli Murray, who had pushed for broader measures that promised, like Title VII, to merge efforts for racial and gender justice (see Figure 2).30

The Equal Rights Amendment

Figure 2. Pauli Murray, antiracist feminist lawyer who pioneered legal strategies intended to intertwine racial justice and women’s rights.

Source: Carolina Digital Library and Archives, UNC University Library, CC BY-SA 3.0.

Nevertheless, in the new circumstances of the late 1960s and early 1970s, the divide over the ERA was not as rigid as it had been in the 1920s. One of the first labor unions openly to accept the end of single-sex protective labor legislation and to endorse the ERA was the United Auto Workers (UAW), a union dominated by men but including a substantial number of women, some of whom had enjoyed the higher pay of men’s jobs during World War II and who had long been covered by the FLSA. In 1970, the UAW endorsed the ERA at the behest of its Women’s Department. The American Federation of Teachers, the Newspaper Guild, and the International Brotherhood of Teamsters were also among early union supporters of the ERA. Once Congress passed the measure in 1972, most unions joined the ERA campaign. The American Federation of Labor-Congress of Industrial Organizations supported the ERA in 1973. The Coalition of Labor Union Women (CLUW), which formed in 1974, endorsed the measure. CLUW’s support for the ERA was especially powerful evidence that the amendment no longer severely split feminists.31

Endorsements by prominent African American feminists provided additional evidence. Black labor leader Addie Wyatt, for instance, endorsed the ERA by 1973 and became a tireless advocate. So did Pauli Murray. Murray had long been a crucial player in connecting feminist politics with the struggle for racial justice. In her work for President John F. Kennedy’s Commission on the Status of Women (1961–1963), Murray proposed that the Equal Protection Clause of the Fourteenth Amendment might serve as a guarantor of women’s equal treatment under the law. She hoped a legal strategy based on the Equal Protection Clause might resolve the conflict over the ERA among women’s advocates and more effectively interweave the causes of racial and gender justice. Although Murray opposed the ERA in 1967, she soon made a compelling case that feminists could simultaneously pursue the ERA and file discrimination cases under the Equal Protection Clause. By that time, black Congresswoman Shirley Chisholm had emerged as a major proponent of the ERA, and soon the new National Black Feminist Organization would publicly endorse it.32

In this changed context, the ERA’s prospects in Congress dramatically improved. Since 1923, some version of the ERA had been introduced in every congressional session, but it had never been voted out of committee. Although the Republican Party platform had supported the ERA since 1940, it had not been a priority. Democrats had offered lukewarm support in their platform in 1944 but had withdrawn it in 1960 in deference to the labor movement.33 As working-class constituencies and advocates for racial justice began to swing into the pro-ERA column, however, Democrats in Congress swung with them.

In 1970, a new day dawned when Congresswoman Martha Griffiths (D-MI) succeeded in getting a hearing for the amendment before the full House of Representatives.34 The version of the ERA that was debated in the 1970s had emerged in the 1940s and read, “Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex.”35 Although Congress did not pass the measure in 1970, Griffiths introduced it again in 1971, and Birch Bayh (D-IN) did the same in the Senate. This time, it met with success. In October 1971, the House voted 354 to 23 in favor of the amendment, and in March 1972, the Senate approved it by 84 to 8. The ERA’s moment seemed to have come as legislators from both sides of the aisle voted overwhelmingly to guarantee equal treatment under the law to women and men. To placate some lingering opponents, supporters of the amendment agreed to a seven-year limit for its ratification by the states, a concession that seemed insignificant because the measure as yet faced no effective opposition.36

Conservative Opposition Emerges

At first, the ratification process bore out the optimism of ERA supporters. Hawaii ratified within hours of congressional approval, and Nebraska did so the next day. Soon thereafter, Delaware, New Hampshire, Kansas, Iowa, Massachusetts, West Virginia, and Colorado ratified. After only one year, the ERA had been ratified by thirty states.37 Since the Constitution required that three-quarters of the states ratify before an amendment was added to the Constitution, the ERA needed ratification by thirty-eight states. After one year, it had only eight states to go. By the end of 1975, it needed only four more (see Figure 3).38

The Equal Rights Amendment

Figure 3. ERA March from Governor’s Mansion to the Florida state capitol in Tallahassee, 1975. Several members of Congress participated, including, on the far left in sunglasses, Rep. Karen Coolman, D-Ft. Lauderdale, Rep. Gwen Cherry, D-Miami, and at the far right, Re. Elaine Gordon, as well as actor, Alan Alda.

Source: Florida Memory Project, State Archive of Florida.

But what had looked like smooth sailing in 1972 no longer did by 1975. A new opposition to the ERA had organized and was gaining power. At the head of that opposition was Phyllis Schlafly, a conservative Republican activist, mother of six, and graduate of Washington University in St. Louis, Missouri. She had earned a master’s degree in political science at Radcliffe before marrying in 1949. Schlafly was a devout Catholic so interested in politics that she ran for Congress in 1955 and again in 1970. In 1964, she avidly championed the presidential candidacy of Republican Barry Goldwater because he shared her opposition to the United Nations and the New Deal. Goldwater’s overwhelming defeat by Lyndon B. Johnson in that 1964 presidential election marginalized Schlafly within the Republican Party, but she remained a popular speaker for the National Federation of Republican Women (NFRW) for several years thereafter.39

When the NFRW endorsed the ERA in 1971, Schlafly was not interested in it. Other conservative women, however, urged her to oppose it. Once convinced, Schlafly became an enormously effective organizer against the amendment. From her perspective, it was ludicrous to claim that American women were oppressed, as ERA supporters suggested, when they enjoyed every imaginable advantage. Schlafly argued indeed that American women were the most privileged in the world and that the ERA threatened their privileges. The amendment would, she warned, subject women to the military draft and deny them the financial support from husbands that many state laws guaranteed. She contended that the ERA would make separate public bathrooms and dormitories for women and men unconstitutional.40 Once the Supreme Court ruled in Roe v. Wade (1973) that women had a constitutional right to abortion at least in the first trimester of pregnancy, Schlafly argued further that the ERA would extend abortion rights, which were anathema to many conservatives.41

To mount her campaign against the ERA, Schlafly in 1972 founded the Committee to Stop ERA. This single-issue association aimed to convince legislators that feminists did not represent all American women and to convince American women that the ERA would hurt more than help them. Focusing their attention especially on states that had not yet ratified, lobbyists from Stop ERA argued especially that the amendment posed threats to the family. Indeed, with that argument, Schlafly pulled together a spectrum of religious conservatives usually suspicious of each other. They included Mormons, conservative Catholics, fundamentalist and evangelical Protestant Christians, and a few Orthodox Jews. Her message to all was that the ERA threatened gender and familial arrangements that religious conservatives believed were ordained by God. Women were not the same as men, as she saw it, and the law needed the flexibility to recognize those differences.42

Schlafly and the religious conservatives who shared her skepticism of the ERA proved brilliant organizers. By 1975, they had significantly slowed the ratification process. In fact, they were so well-organized and their arguments so compelling that in 1973 Nebraska rescinded its ratification, and in 1974 Tennessee followed suit. The only victory for ERA in 1975 was ratification by North Dakota, and the only additional state that would ratify before the original deadline was Indiana, which did so in 1977. Two more states also rescinded by that time.43

International Women’s Year (IWY) represented a significant turning point in the struggle over the ERA. The United Nations declared 1975 IWY and convened a world conference on women’s issues in Mexico City that July. President Gerald Ford, a Republican supporter of the ERA, created a US Commission on IWY to represent the United States at the world conference and to craft a set of proposals to “promote equality between men and women” in the United States.44 When he appointed only feminists to the commission and won federal funding for it, Schlafly and other antifeminists were livid. Since the all-feminist commission supported the ERA, this arrangement put taxpayers’ money behind the amendment even as states continued to debate its ratification. Government officials thought this support legitimate because, in 1975, the leadership of both the Republican and Democratic parties supported the ERA and expected it soon to become part of the US Constitution.45

To devise proposals promoting equality between women and men, the IWY Commission followed up its participation in Mexico City with conferences in every US state. The state confabs considered proposals for advancing women’s rights and selected delegates to the culminating National Women’s Conference scheduled for 1977 in Houston, Texas.46 The ERA figured prominently among the proposals debated in the state conferences and later the national conference in Houston, as did abortion and lesbian rights. At the state conferences, conservative women organized by Schlafly’s new organization, the Eagle Forum, and a group called Women Who Want to be Women, won about 20 percent of the delegates’ elections.47 These delegates were able to voice objections to feminist proposals at the national conference, but they were not numerous enough to outvote the remarkably diverse feminist majority. Of the two thousand official delegates representing the states and territories at the Houston conference, about 25 percent were from racial minorities, a proportion greater than that in the general population.48 Feminist resolutions—including support for the ERA, abortion, lesbian rights, welfare reform, employment for poor women, and government-sponsored child care—generally passed handily, solidifying a multiracial feminist coalition and producing a wide-ranging feminist agenda.49

Given their minority status at the national convention, antifeminists staged a counter-rally in Houston to publicize their own agenda. At that event, conservative women and men demonstrated that feminists had significant opposition and that the opposition was well organized and passionate. They represented a coalition of Americans determined to defend what they saw as the traditional family: a married man and woman with children cared for by the woman in their home and supported financially by the man. At their demonstration, conservative activists effectively associated the ERA with other measures they construed as threats to their preferred form of family, including abortion, institutional child care, and gay rights. One anti-ERA activist confirmed that the IWY’s resolutions at Houston were “the best recruiting tool I’ve ever had.”50 Presenting the resolutions supporting lesbian rights and abortion along with ERA generated new opposition to the amendment. Even though some feminist theorists argued that the ERA would not support gay rights or abortion, no state ratified the amendment after the Houston conference (see Figure 4).

The Equal Rights Amendment

Figure 4. Phyllis Schlafly protests against the ERA in front of the White House, 1977.

Source: Warren K. Leffler, Library of Congress Prints and Photographs.

As the deadline for ratification loomed and prospects for ratification dimmed, proponents of the amendment fought for an extension. In October 1977, Representative Elizabeth Holtzman (D-NY) introduced legislation to extend the ratification deadline to 1986. That proposal did not fly. But in late 1978, Congress did grant a three-year extension of the deadline to June 30, 1982.51 In those three years, no additional state ratified, and one more rescinded. The states that did not ratify were Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South Carolina, Utah, and Virginia.52

Significance of the 1970s–1980s Struggle for the ERA

Even though the ERA seemed a dead letter in 1982, equal rights thinking was triumphing in US law. The sorts of laws that had so incensed Alice Paul in the 1920s had largely fallen by the wayside. Some of these laws had been abolished in years previous and some in the 1970s as the Supreme Court began interpreting the Equal Protection Clause of the Fourteenth Amendment to prohibit sex discrimination. The trend was so marked that legal scholars in the early 21st century began to refer to doctrine emerging in the court’s multiplying sex discrimination cases as a “de facto ERA.”53

Reed v. Reed (1971), a famous case that future Supreme Court Justice Ruth Bader Ginsburg contributed a crucial brief to, laid the foundation for the de facto ERA. In Reed, the Court struck down an Idaho law that “preferred men over women as estate administrators” and ruled for the first time that a law discriminating against women violated the Fourteenth Amendment.54 The decision vindicated Pauli Murray’s promotion of the Fourteenth Amendment as a weapon against gender inequality. A series of subsequent cases built on the Reed decision, including: Frontiero v. Richardson (1973), which ruled it unconstitutional for the military to grant benefits automatically to the wives of military men but not to the husbands of military women, and Weinberger v. Wiesenfeld (1975), which said the same of the Social Security Act’s provision of benefits to widows but not widowers with dependent children.55

In keeping with a string of such decisions in sex discrimination cases, the Supreme Court later ruled in United States v. Virginia (1996) against the male-only admissions policy of a state-supported military college, the Virginia Military Institute (VMI). At this point, Ruth Bader Ginsburg had been appointed to the Supreme Court and penned the majority opinion. That decision held that VMI violated the Equal Protection Clause of the Fourteenth Amendment because Virginia did not provide an “exceedingly persuasive justification” for excluding women from admission. Ginsburg’s opinion was especially significant because it seemed to raise the bar in sex discrimination cases by requiring government actors to demonstrate a more compelling case for sex distinctions in the law than had previously been required.56 Subsequently, Justice Ginsburg herself observed that, through legislation and lawsuits, feminists had achieved most of what the ERA would have afforded. Still, she hoped the amendment would eventually be part of the Constitution in order to protect those decisions from reversal.57

In addition to moving the courts to prohibit sex discrimination in the law, the struggle over the ERA helped to realign the US political party system. In the mid-1970s, the leadership of both mainstream parties supported the ERA. In 1980, however, Republicans ended their forty-year commitment to the amendment, while Democrats maintained their more recent support for it. Phyllis Schlafly’s coalition, built on the basis of opposition to the ERA and a broad range of other feminist goals, had coaxed conservative Christians, both Protestant and Catholic, into the Republican Party alongside its older constituency of fiscal conservatives and opponents of big government. Opposition to the ERA in particular brought religious conservatives together with anti-government and pro-market activists: the US Chamber of Commerce and the National Association of Manufacturers argued that the ERA might saddle businesses with increased costs as it threatened, for instance, to prohibit companies from charging women higher insurance rates than men. Feminist Republicans were henceforth marginalized in their party.58

The new coalition within the Republican Party—embracing religious conservatives and advocates of small government—selected Ronald Reagan as the Republican candidate for president in 1980 and then won the presidency for him. Reagan’s Republican Party stood for massive military spending, reduction of the welfare state and corporate regulation, and defense of what conservatives considered to be a traditional family. The political coalition built in part by anti-ERA forces in the 1970s moved the Republican Party—and with it, American politics—to the right for the remainder of the 20th century and into the 21st. As late as 2018, the Democratic and Republican parties remained defined partly by their opposing positions on women’s rights and the definition of a family. Women activists and women’s issues had moved to the very center of US politics.

Recent History and Prospects of the ERA

Feminists did not entirely abandon the ERA in the late 20th century. Interest revived especially after 1992, when the twenty-seventh amendment to the US Constitution was ratified. That amendment, which postponed implementation of any pay raise that Congress voted for itself until the following session of Congress, was ratified a startling 203 years after it had first been sent to the states. The late-breaking victory inspired one set of feminists to seek a new extension of the ERA’s ratification deadline. This group in 1994 developed the “three-state strategy,” which was a campaign to get three more states to ratify the ERA and Congress to reset the deadline for ratification.59 Feminist legal theorists developed a legal case for the strategy in the 1990s, and Kim Gandy, president of NOW from 2001 to 2009, signed on to it.60 Gandy simultaneously rejected earlier feminists’ arguments that the ERA could not be used to protect abortion rights or gay marriage. She insisted instead that the ERA, if interpreted as she believed it should be, would support both.61

Other feminist legal scholars in the 1980s and 1990s argued against the ERA of 1972. After the apparent failure of the amendment in 1982, theorists such as Martha Fineman and Mary Becker openly expressed concerns that the ERA might in practice solidify existing gender inequalities. Since women were in fact subordinated to men in contemporary society, they argued, equal treatment by the law would simply keep those inequalities in place rather than remedy them. Echoing arguments of anti-ERA feminists in the 1920s, they maintained that sometimes women needed to be treated differently from men in order to achieve material equality. Mary Becker worried that affirmative action in particular might be threatened by the ERA and proposed a more robust amendment that included a requirement that at least one senator from each state be a woman.62

Feminist differences notwithstanding, the 2010s breathed new life into the campaign for an ERA. In 2013, Senator Benjamin Cardin (D-MD) introduced legislation to extend the deadline for ratification, and Jackie Speier (D-CA) introduced it in the House.63 Although this effort did not bear immediate fruit, the election of Republican Donald Trump to the US presidency in 2016 generated additional interest in the amendment. Many feminists viewed the Trump administration as an imminent threat to the rights they had achieved through court decisions and statutory law beginning in the 1960s. The de facto ERA seemed to some newly vulnerable. Terry O’Neill, president of NOW, said in 2017, “Given the current political climate, with Republicans in the White House and Congress nakedly promoting a white supremacist and patriarchal agenda, this is more of a concern than ever.”64 By 2018, such fears intensified with the confirmation of Brett Kavanaugh to a seat on the US Supreme Court, which ensured for the foreseeable future a conservative majority likely to read the Equal Protection Clause more narrowly than recent courts had. In 2017, the three-state strategy gained momentum when Nevada ratified the ERA, and in 2018, Illinois did the same.65 By then, supporters looked to Arizona or Virginia as the most likely state to complete the ratification process.66

If the ERA should win ratification by a thirty-eighth state, it would face two major obstacles to inclusion in the Constitution: the 1982 deadline and the rescissions enacted by five states in the 1970s. To make that final state’s ratification matter, Congress would have to extend the ratification deadline for the ERA, and any extension would probably face legal challenges. No one can predict the outcome of this unprecedented situation. In addition, the courts would almost certainly have to decide what to do about the five states that rescinded their ratifications before the full contingent of thirty-eight states had ratified. That, too, could go either way.

The three-state strategy was not the only one that ERA supporters pursued, however. After the 1982 ratification deadline passed, the ERA was reintroduced at every session of Congress until at least 2018. If Congress ever again mustered two-thirds majorities in favor, then the ratification process could start all over again. Although this strategy gathered little steam, another start-over strategy emerged in 2013 when Representative Carolyn Maloney (D-NY) introduced into Congress a revised ERA that attempted to broaden its protective possibilities. The new ERA read:

Women shall have equal rights in the United States and every place subject to its jurisdiction. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. Congress and the several States shall have the power to enforce, by appropriate legislation, the provisions of this article.67

Proponents maintained that this revision of the amendment clarified its aim to promote substantive equality between women and men rather than requiring simply identical treatment by laws. In 2014, a new group—the ERA Coalition—organized in support of all avenues to winning an ERA. The umbrella organization supported the three-state strategy, the two start-over possibilities in Congress, and the pursuit of state-level ERAs.68

The effects of the ERA, should it ever become part of the US Constitution, are unclear. While proponents insist that the measure would have enormous symbolic value in stating explicitly that the US Constitution grants women and men equal rights under the law, the material results of an ERA would depend entirely on the way courts interpret it. Most analysts agree that an ERA would tend to preserve principles established by the de facto ERA.69 But beyond that, all bets are off. It is unclear, for instance, whether the ERA would protect abortion rights. Some feminists themselves argued in the 1970s that it would not, and the interpretation of the twenty-two state-level ERAs in relation to abortion rights has been mixed.70

Some proponents have argued that American women need an ERA because current laws against sex discrimination in employment and education could be repealed; they suggest that the ERA would in that event provide a constitutional bulwark against sex discrimination. How far the amendment would go toward outlawing discrimination in the private sector, however, is uncertain. Most obviously, the ERA seems to require that no law treat women and men differently. That requirement says nothing about how actors in the private sector must behave. If, as some legal theorists hope, the ERA were interpreted broadly to require that laws actively promote substantive gender equality, then the ERA might compensate for the repeal of Title VII or the Pregnancy Discrimination Act, should repeal ever occur. But such an interpretation is by no means guaranteed. Indeed, feminist theorists are divided over whether the ERA would encourage affirmative action to address the historical disadvantages of women in the workplace and education or actively undermine affirmative action. The results in these arenas are simply unpredictable. Whether the ERA would provide a constitutional foundation for policies to prevent and respond to domestic violence is also contested, and the limited results of state ERAs, again, provide no certainty.71 The full meaning of an ERA would have to be worked out over time by social movements, legislation, and the courts.

Conclusion

The topsy-turvy history of the ERA reveals much about US political culture since the 1920s. It demonstrates first that context is everything. The same proposed constitutional amendment could have very different meanings in the 1970s from those in the 1920s. As public policies changed and increasing numbers of women workers lost confidence that they might achieve equality in the workplace through differential treatment by the law, the ERA ceased to be perceived as a significant threat to wage-earning women and gained widespread support among progressives who had previously opposed it. The history also shows that women and women’s issues moved to the center of American politics in the 1970s and helped to realign the US party system. Since 1980, the two major political parties have been distinguished from each other in part by their position on the ERA and other feminist proposals.

The story of the ERA provides evidence in addition that feminists have often disagreed on the route to gender equality. Some have believed that since women and men are differently positioned in families, workplaces, and educational institutions, the law must treat them differently if they are to achieve substantive equality. Others have seen identical treatment by the law as the only way to undermine gender inequality. In the late 20th century, the latter position largely won out in the courts. But since the history of the ERA remains very much underway as of 2018 and contexts necessarily remain fluid, new meanings may yet attach to the amendment, and new ways of imagining the route to gender equality may well emerge.

Discussion of the Literature

Much of the early literature on the history of the ERA asked where the amendment had originated, why so many women progressives opposed it before the 1960s, and why ratification failed in the 1980s. Those initially interested in the early history of the ERA included Susan D. Becker, The Origins of the Equal Rights Amendment: American Feminism Between the Wars; Christine A. Lunardini, From Suffrage to Equal Rights; Kathryn Kish Sklar, “Why Were Most Politically Active Women Opposed to the ERA in the 1920s?” in Joan Hoff Wilson’s edited volume Rights of Passage: The Past and Future of the ERA; and Nancy Cott, The Grounding of Modern Feminism. Cynthia Harrison’s On Account of Sex: The Politics of Women’s Issues, 1945–1968 explained how the ERA emerged from the shadows into the political spotlight after World War II. Some of the most important early explanations of why the ERA failed to be ratified were found in Jane J. Mansbridge’s Why We Lost the ERA, Mary Frances Berry’s Why the ERA Failed: Politics, Women’s Rights and the Amending Process of the Constitution, and Jane Sherron de Hart and Donald G. Mathews’s Sex, Gender, and the Politics of ERA: A State and the Nation.

More recently, historians have deepened their understanding of the early opposition to the ERA by working-class women and their allies. The most thorough of these studies are Dorothy Sue Cobble’s The Other Women’s Movement: Workplace Justice and Social Rights in Modern America and Nancy Woloch’s A Class by Herself: Protective Laws for Women Workers, 1890s–1990s. More recent histories of the struggle over ratification in the 1970s are Donald T. Critchlow’s Phyllis Schlafly and Grassroots Conservatism: A Woman’s Crusade and Marjorie J. Spruill’s Divided We Stand: The Battle Over Women’s Rights and Family Values That Polarized American Politics. Both books expose a broader meaning of the struggle for American politics and public policy.

Katherine Turk has explained in Equality on Trial: Gender and Rights in the Modern American Workplace how a commitment to formal equality rather than attention to difference has left working-class women with little help in achieving gender equality. Arguments for the limitations of formal equality as a strategy for achieving gender justice include Mary Becker, “The Sixties Shift to Formal Equality and the Courts: An Argument for Pragmatism and Politics”; Martha Albertson Fineman, The Illusion of Equality: The Rhetoric and Reality of Divorce Reform; and Fineman, “The Vulnerable Subject: Anchoring Equality in the Human Condition.”

Legal scholars have been the most prolific writers on the de facto ERA and the history of the amendment after 1982. The best place to begin exploring that literature is Reva B. Siegel’s “Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA.” What the ERA might mean in the 21st century has been analyzed by feminist lawyers, especially Jessica Neuwirth, Equal Means Equal: Why the Time for an Equal Rights Amendment is Now and Linda Wharton, “State Equal Rights Amendments Revisited.” See also Jane Mansbridge, “Whatever Happened to the ERA?” in Women and the United States Constitution: History, Interpretation, and Practice.

Primary Sources

For the pursuit of the ERA from the 1920s to 1972, the Papers of the National Woman’s Party would be a good place to begin. They are held by the Library of Congress in Washington, DC. Early opposition to the amendment is documented in the Records of the National Consumers’ League, also in the Library of Congress. Digitized newspapers are a rich source of information on the struggle over the ERA from the early 1920s to the present. The Walter Reuther Library at Wayne State University in Detroit holds many relevant records, including the Coalition of Labor Union Women Collection and the papers of the United Auto Workers’ Women’s Department. For those interested in the battle over the ERA in the 1970s and the aftermath, the Records of the National Organization for Women provide a rich resource. They are housed in the Schlesinger Library, part of the Radcliffe Institute at Harvard University in Cambridge, Massachusetts, which is also home to the papers of two leaders of NOW, Betty Friedan and Pauli Murray.

The Records of the American Civil Liberties Union in the Mudd Manuscript Library at Princeton University in Princeton, New Jersey, include the papers of the ACLU’s Committee on Discrimination Against Women, Equality Committee, and Due Process Committee, which debated the ERA for years and supported it before the 1970s. The ACLU records also include those of the Women’s Rights Project, which was responsible for many of the court cases that constitute the de facto ERA. The Eagle Forum Library and Archives in St. Louis, Missouri, documents that group’s fight against the ERA in the 1970s. The Phyllis Schlafly Report is accessible through many libraries. Numerous records documenting the history of the ERA are available in the ProQuest database, Women and Social Movements in the United States, 1600-2000.

Further Reading

Becker, Susan D. The Origins of the Equal Rights Amendment: American Feminism between the Wars. Westport, CT: Greenwood Press, 1981.Find this resource:

Berry, Mary Frances. Why the ERA Failed: Politics, Women’s Rights, and the Amending Process of the Constitution. Bloomington: Indiana University Press, 1986.Find this resource:

Cobble, Dorothy Sue. The Other Women’s Movement: Workplace Justice and Social Rights in Modern America. Princeton, NJ: Princeton University Press, 2004.Find this resource:

Critchlow, Donald T. Phyllis Schlafly and Grassroots Conservatism: A Woman’s Crusade. Princeton, NJ: Princeton University Press, 2005.Find this resource:

Harrison, Cynthia. On Account of Sex: The Politics of Women’s Issues, 1945–1968. Berkeley: University of California Press, 1988.Find this resource:

Mathews, Donald G., and Jane Sherron De Hart. Sex, Gender, and the Politics of ERA: A State and the Nation. New York: Oxford University Press, 1990.Find this resource:

Siegel, Reva B. “Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto Era.” California Law Review 94, no. 5 (October 2006): 1323–1419.Find this resource:

Spruill, Marjorie J. Divided We Stand: The Battle Over Women’s Rights and Family Values That Polarized American Politics. New York, NY: Bloomsbury, 2017.Find this resource:

Turk, Katherine. Equality on Trial: Gender and Rights in the Modern American Workplace. Philadelphia: University of Pennsylvania Press, 2016.Find this resource:

Woloch, Nancy. A Class by Herself: Protective Laws for Women Workers, 1890s–1990s. Princeton, NJ: Princeton University Press, 2015.Find this resource:

Notes:

(1.) Christine Lunardini, Alice Paul: Equality for Women (Boulder, CO: Westview Press, 2013); and Katja von Garnier, dir., Iron Jawed Angels (New York, NY: Warner Home Video/HBO Films, 2004).

(2.) Ellen Carol DuBois, Feminism and Suffrage: The Emergence of an Independent Women’s Movement in America, 1848–1869 (Ithaca, NY: Cornell University Press, 1978); Ellen Carol DuBois, Harriet Stanton Blatch and the Winning of Woman Suffrage (New Haven, CT: Yale University Press, 1997); Eleanor Flexner, Century of Struggle: The Woman’s Rights Movement in the United States (1959; New York, NY: Atheneum, 1970); and Anne Firor Scott and Andrew MacKay Scott, One Half the People: The Fight for Woman Suffrage (Urbana: University of Illinois Press, 1975).

(3.) Liette Gidlow, “The Sequel: The Fifteenth Amendment, the Nineteenth Amendment, and Southern Black Women’s Struggle to Vote, 1890s–1920s,” Journal of the Gilded Age and Progressive Era 17, no. 3 (July 2018): 433–449; Liette Gidlow, “Resistance After Ratification: The Nineteenth Amendment, African American Women, and the Problem of Female Disfranchisement after 1920” (Alexandria, VA: Alexander Street, 2017); and Thomas Dublin and Kathryn Kish Sklar, eds., Women and Social Movements in the U.S. 1600–2000, ProQuest database (hereafter WASM).

(4.) Laughlin McDonald, American Indians and the Fight for Equal Voting Rights (Norman: University of Oklahoma Press, 2010). Cathleen D. Cahill, “Marie Louise Bottineau Baldwin,” American Indian Quarterly 37, no. 3 (Summer 2013): 62–86. Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (New York, NY: Basic Books, 2009), 109–114, 202–223, 251–253; and Mae M. Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton, NJ: Princeton University Press, 2004).

(5.) See, for instance, “The Nation-Wide Legislative Campaign,” Equal Rights 1, no. 2 (February 24, 1923): 2–3; “Campaign Over the Country,” Equal Rights 1, no. 3 (March 3, 1923): 2–3; National Woman’s Party, Michigan Laws Discriminating Against Women (Washington, DC: National Woman’s Party, 1922); Elsie Hill and Florence Kelley, “Shall Women Be Equal Before the Law?,” The Nation, April 12, 1922; Bernita Shelton Matthews, “The Woman Juror,” The Women Lawyers Journal 15, no. 2 (January 1927); and Nancy Cott, The Grounding of Modern Feminism (New Haven, CT: Yale University Press, 1987), 124; Sophonisba P. Breckinrige, Women in the Twentieth Century (New York, NY: McGraw-Hill, 1933), 315.

(6.) Deborah Gray White, Too Heavy a Load: Black Women in Defense of Themselves, 1884–1994 (New York, NY: Norton, 1999), esp. 114–116. Lisa G. Materson, For the Freedom of Her Race: Black Women and Electoral Politics in Illinois, 1877–1932 (Chapel Hill: University of North Carolina Press, 2009), 108–148, esp.126; Vicki L. Ruiz, From Out of the Shadows: Mexican Women in Twentieth-Century America (New York, NY: Oxford University Press, 1998), 72–98; and Cathleen D. Cahill, “‘Our Democracy and the American Indian’: Citizenship, Sovereignty, and Native Feminists in the 1920s.”

(7.) Cott, Grounding of Modern Feminism, 120–129.

(11.) Josephine Roche quoted in Robyn Muncy, Relentless Reformer: Josephine Roche and Progressivism in Twentieth-Century America (Princeton, NJ: Princeton University Press, 2015), 33.

(13.) Hill and Kelley, “Shall Women Be Equal Before the Law?”

(14.) Becker, Origins of the Equal Rights Amendment, 51.

(15.) Kathryn Kish Sklar, “Two Political Cultures in the Progressive Era: The National Consumers’ League and the American Association for Labor Legislation,” U.S. History as Women’s History: New Feminist Essays, ed. Linda K. Kerber, Alice Kessler-Harris, and Kathryn Kish Sklar (Chapel Hill: University of North Carolina Press, 1995), 51.

(16.) Sklar, “Two Political Cultures,” 50, 59.

(17.) Woloch, Class by Herself, 87, 92–93.

(18.) Woloch, Class by Herself, 128.

(19.) Cott, Grounding of Modern Feminism, 135–136; Woloch, Class by Herself, 232–233, 263.

(22.) Alice Kessler-Harris, In Pursuit of Equity: Women, Men, and the Quest for Economic Citizenship in 20th-Century America (New York, NY: Oxford University Press, 2001), 105–116; and Woloch, Class by Herself, 164–171.

(23.) Premilla Nadassen, “Citizenship Rights, Domestic Work, and the Fair Labor Standards Act,” Journal of Policy History 24, no. 1 (January 2012): 74–94; and Dorothy Sue Cobble, The Other Women’s Movement: Workplace Justice and Social Rights in Modern America (Princeton, NJ: Princeton University Press, 2004), 178, 200.

(24.) Cobble, Other Women’s Movement, 70, 190–195.

(25.) Woloch, Class by Herself, 174–180.

(26.) Katherine Turk, Equality on Trial: Gender and Rights in the Modern American Workplace (Philadelphia: University of Pennsylvania Press, 2016); Nancy MacLean, Freedom is Not Enough: The Opening of the American Workplace (New York, NY: Russell Sage, 2006), 117–154; and Woloch, Class by Herself, 192–219.

(27.) Cobble, Other Women’s Movement, 186–195.

(28.) Betty Friedan, The Feminine Mystique (New York, NY: Norton, 1963).

(30.) Serena Mayeri, “How and Why Was Feminist Legal Strategy Transformed, 1960-1973?” (Binghamton, NY: State University of New York at Binghamton, 2007), WASM.

(31.) Cobble, Other Women’s Movement, 186–194, 200–205.

(32.) Marcia Walker-McWilliams, Reverend Addie Wyatt: Faith and the Fight for Labor, Gender, and Racial Equality (Urbana: University of Illinois Press, 2016), 146, 168–172; Julie A. Gallagher, “How Did Shirley Chisholm Advance an Inclusive Feminist Politics in the 1960s and 1970s?” (Alexandria, VA: Alexander Street, 2013), WASM; Mayeri, “How and Why Was Feminist Legal Strategy Transformed”; and White, Too Heavy a Load, 242–243. Not all feminists believed the ERA was the most important goal, however; on that point, class and race divisions among feminists continued.

(33.) Harrison, On Account of Sex, 115–119.

(35.) Lunardini, Alice Paul, 175.

(37.) Spruill, Divided We Stand, 32.

(39.) Spruill, Divided We Stand, 76–78.

(40.) Elizabeth Pleck, “Failed Strategies; Renewed Hope,” in Rights of Passage: The Past and Future of the ERA, ed. Joan Hoff-Wilson (Bloomington: Indiana University Press, 1986), 106–120; and Spruill, Divided We Stand, 79–81.

(42.) Critchlow, Phyllis Schlafly, 218–221.

(43.) That third rescission was in Idaho. Kentucky’s legislature rescinded in 1978. Appendix 2, Mathews and De Hart, Sex, Gender, and the Politics of ERA, 268–269.

(44.) Quoted in Spruill, Divided We Stand, 205.

(45.) Spruill, Divided We Stand, 110.

(46.) Kathryn Kish Sklar and Thomas Dublin, “How Did the National Women’s Conference in Houston in 1977 Shape a Feminist Agenda for the Future?” (Binghamton, NY: State University of New York at Binghamton, 2004), WASM.

(47.) Spruill, Divided We Stand, 189; Chelsea Griffis, “‘In the Beginning Was the Word’: Evangelical Christian Women, the Equal Rights Amendment, and Competing Definitions of Womanhood,” Frontiers 2, no. 38 (2017): 148–172.

(48.) Document 25, “How Did the National Women’s Conference in Houston in 1977 Shape a Feminist Agenda for the Future?”

(49.) Spruill, Divided We Stand, 6–7, 226.

(50.) Quoted in Critchlow, Phyllis Schlafly, 248.

(51.) Critchlow, Phyllis Schlafly, 248.

(52.) Appendix 2, Mathews and De Hart, Sex, Gender, and the Politics of ERA, 268–269. “State Ratifications of the ERA, compiled by David S. Ferriero, Archivist of the United States for Congresswomen Carolyn Maloney, October 25, 2012.

(53.) Reva B. Siegel, “Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA,” California Law Review 94, no. 5 (October 2006): 1323–1419.

(54.) Siegel, “Constitutional Culture, Social Movement Conflict and Constitutional Change,” 1377; “Reed v. Reed at 40: Equal Protection and Women’s Rights,” Journal of Gender, Social Policy and the Law 20, no. 2 (2011): 315–344.

(55.) Frontiero v. Richardson, 411 U.S. 677 (1973); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975). Similar cases also constituting the de facto ERA include Califano v. Goldfarb, 430 U.S. 199 (1977); Califano v. Westcott, 443 U.S. 76, 89 (1970); Wengler v. Druggists Mutual Insurance Company, 446 U.S. 142 (1980); Kirchberg v. Feenstra, 450 U.S. 455 (1981).

(56.) United States v. Virginia, 518 U.S. 515 (1996); Eric J. Stockel, “United States v. Virginia: Does Intermediate Scrutiny Still Exist,” Touro Law Review 13 (1996–1997): 229–264, quotation at 253. Deborah Jones Merritt, “Ruth Bader Ginsburg’s Jurisprudence of Opportunity and Equality,” Columbia Law Review 104 (2004): 39–48. The richest study is Philippa Strum, Women in the Barracks: The VMI Case and Equal Rights (Lawrence: University of Kansas Press, 2002).

(57.) Michelle Boorstein, “Ruth Bader Ginsburg Calls for Equal Rights Amendment to the Constitution,” Washington Post, February 2, 2018; Michelle Boorstein, “Ginsburg: Make ERA Part of the Constitution.” U.S. News and World Report, April 18, 2014.

(58.) Jessica Neuwirth, Equal Means Equal: Why the Time for an Equal Rights Amendment is Now (New York, NY: New Press, 2015), 8; Berry, Why ERA Failed, 81–82, 104.

(59.) Neuwirth, Equal Means Equal, 100.

(60.) Allison Held, Sheryl Herndon, and Danielle Stager, “The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the StatesWilliam and Mary Journal of Women and the Law 3, no. 1 (Spring 1997): 113–136; and Siegel, “Constitutional Culture, Social Movement Conflict and Constitutional Change,” 1402–1403.

(61.) “NOW Cheers Reintroduction of ERA in Congress,” National NOW Times 37, no. 1 (Spring 2005), 1.

(62.) Jane Mansbridge, “Whatever Happened to the ERA?” in Women and the United States Constitution, ed. Sibyl A. Schwarzenbach and Patricia Smith (New York, NY: Columbia University Press, 2003), 365–378.

(63.) Neuwirth, Equal is Equal, 95.

(64.) Quoted in Seth Richardson, “This Is About Equality. Period,” Reno News, March 22, 2017.

(65.) Colin Dwyer and Carrie Kaufman, “Nevada Ratifies The Equal Rights Amendment, Two-Way Breaking News, NPR, March 21, 2017; and Bill Chappell, “One More To Go: Illinois Ratifies Equal Rights Amendment,” The Two Way Breaking News, NPR, May 31, 2018.

(66.) Richardson, “This Is About Equality. Period.” Dwyer and Kaufman, “Nevada Ratifies The Equal Rights Amendment”; and Chappell, “One More To Go.”

(67.) Neuwirth, Equal is Equal, 101–102; “ERA Ratification Bills in the 115th Congress (2017-18).”

(68.) Neuwirth, Equal is Equal, 102.

(69.) Neuwirth, Equal is Equal, 8–11. Boorstein, “Ginsburg: Make ERA Part of the Constitution.” Many expect that an ERA would require governments at the state and federal level to identify a compelling state interest for any law or policy that treated women differently from men and would thereby subject all such laws to the same strict scrutiny standard as racial distinctions. This is a legal standard that the courts have not generally applied to sex discrimination cases under the Equal Protection Clause of the Fourteenth Amendment.

(70.) Linda Wharton, “State Equal Rights Amendments Revisited: Evaluating Their Effectiveness in Advancing Protection Against Sex Discrimination,” Rutgers Law Review 36 (2005): 1201–1293.

(71.) An excellent review of results in the states is Wharton, “State Equal Rights Amendments Revisited.” Wharton is optimistic about the broader interpretation offered in some cases by state courts. But those cases have been rare. A clear accounting of the possibilities for ERA is in Neuwirth, Equal is Equal. Neuwirth is an advocate of ERA but is honest about what it will likely accomplish and what it might accomplish. Unknowns are summed up at 104.