Why was the Equal Rights Amendment so controversial?

Great Debates
#1

I’ve been thinking about this in the context of the federal anti-gay-marriage amendment currently being floated by political conservatives. There are always crackpot schemes drifting in from the fringes that seek to attach this or that amendment for whatever reason, but it seems to me that the last time an amendment to the U.S. Constitution actually broke through the constant noise and acquired a major national profile was the Equal Rights Amendment back in the 1970s.

I am in my mid-thirties. When the ERA was being debated (and when it failed), I was but a snot-nosed punk. My clearest memories of political events from when I was a child were (1) the Iranian hostage crisis (and the failed rescue) and (2) the attempted assassination of Reagan. Before that, it’s a blur.

So in hindsight, and in the context of the current restrictive amendment, I’m looking for opinions and arguments of why the previous expansive amendment (as it seems to me) provoked such ire and controversy. In my view, it seems like a no-brainer: women have the same social and political rights as men, period. So what was the fuss about?

(I’m pursuing a larger sociopolitical hypothesis here, but I don’t want to say too much about it just yet.)

#2

I should say, a proposed amendment.

#3

As far as I recall, arguments were similar to those that come up re gay marriage: That any concession must lead to all concessions. The major concern was that if the ERA was passed women must be required to register for the draft and, if drafted, be sent into combat.

There was also a lot of silly stuff about unisex bathrooms.

#4

Er, I would think that actual ratification counts as “breaking through the constant noise”…

#5

Not sure if this is one of the actual arguments against it, but it would seem to just be a reaffirmation of the 14th amendment, and thus in my view a case of stuffing rather worthless bloat into the US constitution.

Interesting that it only needed three states ratification to pass.

#6

In fact, some even raised a linkage to gay marriage. I read an interview with Jerry Falwell published in Penthouse, forget what year but it was in the late '70s or maybe 1980 (the reporter did not tell Falwell he intended to pulish it in that magazine, and Falwell was royally pissed about it). Falwell said “The ERA would put sex into the Constitution, not women,” and raised the possibility that homosexuals wanting to marry each other might invoke it.

#7

Hmmm…

My guess would be simple sexism, not just the “A woman’s place is in the kitchen” variety, but also the slightly subtler “A woman’s place isn’t on the battlefield” type, like cher3 mentioned. I can imagine the horror in some people’s minds, fearful of sending their little girls to war, where they could get killed, or maybe even raped. Israel might do just fine with compulsory service for both sexes, but we’re Americans, damn it, and we protect our young women. You know, because men are supposed to protect women, and women are supposed to be in the kit-, I mean, not on the battlefield.

Pretending to put a woman on a pedestal is a time honored way of keeping her in the dirt. I doubt that most opposition to the ERA was any more complicated than that.

#8

I raised a similar question on these boards a couple years ago, suggesting that passage of the ERA would amount to equal rights for gays as well as for women.

My memory is that reactionaries saw it restrictive, not expansive: you wouldn’t be ALLOWED to have gender-dedicated bathrooms; it would be unconstitutional to distinguish them in any way.

More recently I’ve heard the redundant-14th-Amendment argument, but I heard it in a fictional context (The West Wing), so I’m not sure how valid that is.

#9

Sorry; should have perviewed.

#10

From my hazy memory as a youngster, the big stumbling block for the pro side was convincing people that women wouldn’t be sent into combat and/or drafted.

The pro side felt that they were opposed by forces who wanted to keep women’s wages lower than men’s. A popular button for the pro-ERA side was “$0.59” or something along those lines that indicated a woman made only a fraction of what a man made for comparable work.

#11

There is a growing class of women in the Los Angeles area who are the homeless, discarded ex-wives of rich men. There was some fear that the ERA would create a large class of such women, unable to support themselves but owed nothing by their ex-husbands. And while most married women today have jobs outside the home, that was not yet the case in the late 70s.

#12

I too was tinnie when this subject came up. However, I opposed it in principle because I believe that the existing constitution should already be interpreted to protect equal rights for women and all other people for that matter. There is no need for seperate protection clauses for every conceivable group that you can think of.

In the 1970’s I can almost see where there might be a need for fast legal and social change for women’s rights. However, I am hard pressed to think of any laws that need to be overturned or forced social change that needs to happen to women’s rights today but I am sure that someone can point to something.

The advancement of women’s rights advanced naturally through social interia and selectively changing state laws when they were discriminatory.

Does anyone actually know what the consequences of the ERA would actually be if enacted in the 1970’s or even today? I get the feeling that no one really does so that is a strike against it. It might be a case of: “Be careful what you wish for because you might actually get it.”

#13

Why not an ERA for all voting citizens- “All Citizens who have the right to vote shall have the same rights as other citizens”? Why just for women? :confused:

#14

Well, the ERA wasn’t “just for women”. It would have prohibited discrimination “on account of sex” and, obviously, men could take advantage of that as well as women.

But, more to the point, there’s already a general equality provision; under the 14th amendment, no state shall “deny to any person within its jurisdiction the equal protection of the laws”.

In one respect this is broader than your proposal. It doesn’t depend on citizenship or the right to vote; it applies to all persons within the jurisdiction of any state, including minors, foreign nationals, etc. (This seems to me appropriate, if we believe that human rights inhere in people because they are human, rather than because they were born in this location rather than that, or because they happen to satisfy the suffrage qualification of this particular state.)

In another respect it is narrower. It doesn’t affirmatively confer rights on people. It negatively restricts the states from denying equal protection. But a state which affords no legal protection at all to a particular right is not in breach of the 14th amendment.

The constitution itself confers few rights but those which it does confer it confers on all citizens, or on all people, so your formulation would have no effect as regards constitutional rights. It might have some effect as regards rights conferred by legislation, but not necessarily the effect you want.

Consider; state law confers upon X the right to drive on the public highway. Should the state therefore be obliged to confer the same right on every voting citizen, regardless of competence, fitness or past driving history? Just because we don’t consider sex a relevant ground for discriminating between citizens doesn’t mean that there are no proper grounds for discriminating between citizens. Competence to drive is a perfectly proper basis for discriminating beteen citizens when it comes to issuing driving licences. Thus a constitutional prohibition preventing all discrimination on any grounds whatsoever would be madness; what is needed, if anything, is a constitutional prohibition preventing discrimination on grounds which society considers arbitrary, invidious, offensive . . . [insert adjective of choice here].

The constitution forbids discrimination as regards voting rights on the grounds of “race, color or previous condition of servitude” (15th Amendment) or “failure to pay poll or other tax” (24th amendment) but does not otherwise enumerate forbidden grounds for discrimination. And even these provisions relate only to voting rights. For the protection of other rights, or to fight discrimination on grounds other than race, colour, etc, there is nothing but the 14th amendment, whose language is . . . flexible.

The case in favour of the ERA, I think, would have been something like this.

  1. Discrimination on the grounds of sex is widespread.

  2. It is offensive.

  3. Therefore it warrants a constitutional prohibition.

Part of the case against it was that such discrimination was not, in fact, offensive. But another part was that the equal protection clause of the 14th amendment was a sufficient foundation for legal prohibition of arbitrary or invidious discrimination. Obviously, the case in favour of the ERA wasn’t strong enough to command the necessary political support to have it ratified.

#15

Wow, that was interesting! Proposed in 1789 and ratified in 1992! :eek:

#16

IIRC, I think the main sticking point was that the ERA would have forced employers to treat female applicants equally even though their careers had a tendency to be shortened/interrupted by motherhood. Continuity of employment was something that employers actually considered an asset back then. In these days of routine corporate downsizing and employee-centered mobile retirement plans, it’s not something that easily comes to one’s mind. But back then, the word “downsize” was seldom heard, retirement plan meant a corporate pension, older workers tended to get kept for their experience rather than cut due to their cost and replaced with cheaper younger workers, and employers made a point of hiring someone they could expect to stay with the company for twenty years or more without interruption.

#17

As I recall, the story was amazing. A college student was looking for a subject for his Political Science term paper and found the subject of the proposed amendment. He found that while the proposal had not received enough votes to be enacted and had been forgotten, there had not been the usual built-in limit on how long it could sit before being passed. So theoretically it was still an active measure. The student managed to get the proposal publicized, there was support for the amendment, several additional states approved the proposal, and the Constitution was amended. I’d like to think the student got an A+ for the course.

#18

I am not a politician, nor a lawyer or a judge, but I think there is a set of classes that are “suspect”, i.e., if a law or policy differentiates on the basis of your membership in one or another category within one of the “suspect” classes, that law or policy is only legitimate if there is a “compelling state interest” (or some such phrase) – it can’t just be reasonable and convenient to do so so.

(Perhaps a real lawyer will correct my language or expand upon this).

To elaborate (despite my lack of expertise, take the grain of salt here), I think race is a “suspect” class and that if you were an insurance company you’d get in actual legal hot water if you charged native americans more than asian americans for the same policy based on statistics indicating that asian americans have fewer health problems or something like that; whereas sex is not a “suspect” class so you can do it legally.

A lot of the laws that have extended equal rights to women, or court decisions that did so, took place a hell of a lot more recently than the 14th Amendment, and while you might argue that the protection existed on paper and simply wasn’t enforced on behalf of women until after 1968 or so, I think it remains true that the specific laws and court decisions that effectively extended those interpretations in that way do not have the massive stature and weight of permanence of an amendment. The Supreme Court could theoretically review and reinterpret some of these and decide that if a discriminatory law exists “for a valid reason” it isn’t unconstitutional for treating one sex different from the other because sex is not a “suspect” class and no amemdment specifically prohibits discrimination on the basis of sex.

The Fourteenth Amendment to the US Constitution (Section 1):

Suppose Utah makes it illegal for women to consume alcohol on the basis that they, as females, might be pregnant at any given time and that this law therefore works to prevent fetal alcohol syndrome. Suppose, inspired by the ilk of James L. Hart, Tennessee passes a law requiring women voters to provide certification that they are not voting while under the sway of the illogical mindset brought on by their periods or PMS or menopause. Does anyone really want to argue that the wording of Section 1 of the 14th Amendment – which, as you may recall, was not interpreted to mean that the privilege of voting had to be extended to women due to them being citizens of the US – would make a Supreme Court ruling that those laws are unconstitional a foregone conclusion?

#19

I wonder then, and I’m not sure about this so please enlighten me, if perhaps some of the opposition came because things like Affirmative Action to benefit women and companies owned by women would then be illegal, because you could no longer have a ‘bonus system’ for women only?

#20

I would say so. I asked the question if anyone (including activists) actually knew what this amendment would do. I can think of of a few things off the top of my head if the amendment was strictly interpreted.

  1. Women serving equally in all parts of the military including combat roles.
  2. No more single sex bathrooms (in public buildings?)
  3. No more ladies nights at bars and clubs
  4. Maybe wipe out Mother’s Day and Father’s Day and combine them (farfetched but hey, if you are going to do it, do it)
  5. No more women only health clubs.
  6. No more single sex organizations of any kind
  7. Coed dorms and dorm rooms in colleges and universities. No more of this seperate but equal crap.
  8. No more state benefits just for working mothers.
  9. Increased legal power for father’s fighting for custody rights.
  10. No more women’s colleges.
  11. No more alimony

I am sure that we could come up with tons more. I am very unclear on whether the ERA would apply only to state and federal property and organizations or if would apply to all property and organizations open to the public. Anyone have an idea?

Most of the females that I know would be horrified by the negative potential for the amendment and the miniscule potential for benefits. They are all professionals successful on their own. Maybe some other group would have a net benefit but I can’t see it.