- Issues: Equal Rights Amendment
President Allen pushes for ratification of the Equal Rights Amendment. Speaker Templeton announces that he will run for president. Dickie gets fired.
- Equal Rights Amendment. The Equal Rights Amendment, if it had been ratified, would have added the following 24 words to United States Constitution: "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 Equal Rights Amendment had widespread, bipartisan support when it was submitted to the states for ratification in 1972 (even President Richard Nixon endorsed it). The House passed the ERA overwhelmingly 352-15; the Senate passed it 84-8. Opinion polls were in favor of it 3 to 1. Ratification by the states was the only step left for the ERA to become the 27th Amendment.
In fact, the only serious opposition to the ERA before the 1970s had come from only one quarter: the labor movement. Labor leaders opposed the ERA because they thought it would undo some of their hard-won gains such as shorter work days for women; they were worried that the ERA would benefit upper-class women at working women's expense. By 1972, however, even labor was grudgingly on board.
So what happened?
Gilbert V. Steiner in his book Constitutional Inequality (Brookings Institution 1985) blames bad timing that allowed ERA's opponents to mobilize better.
First, Roe v Wade caught many people off-guard when the decision came down in January 1973, and anti-ERA activists argued that supporting the ERA would force the government to finance abortions. Second, Russia's invasion of Afghanistan gave new life to fears that women would be drafted and put into combat. And finally, the Watergate crisis made a hero out of Senator Sam Ervin (D-North Carolina), whose opposition to the ERA was given more credence after he emerged as a savior of the Constitution.
Even so, it was close. Thirty-five state legislatures approved the ERA (three did so without a single dissenting vote). Only three more states were needed, and a switch of just seven legislators' votes in those states (3 in Nevada, 2 in North Carolina, 2 in Florida) would have been enough to put the ERA over the top. Even an extension of the ratification period did not help, and the ERA expired officially in 1982, not to be seriously resurrected ever again.
Had it become law, the ERA would have made sex a "suspect classification" triggering "strict" judicial scrutiny, which means that courts would use the ERA to strike down any law that uses sex in a way that is not well-justified and not narrowly tailored. Race and alienage are the only classes that are protected so severely by the courts, and this is because the 14th Amendment explicitly requires such protection. Without the ERA, sex remains a quasi-suspect classification, so the courts hold sex-related laws and government actions to a less strict standard. The picture is thus murkier and harder to predict.
The Supreme Court almost interpreted the 14th Amendment in such a way that would have truly made the ERA redundant, but three justices ducked the question in the Frontiero case of 1973 because they wanted to see what would happen with the ERA first. The issue has not been reconsidered since then in this regard.
Ironically, the failure of the ERA arguably was good for women given women's improved political strength.
Intermediate scrutiny does let some laws hurting women to survive, but it also lets laws benefiting women survive as well. Intermediate scrutiny is enough to open up the Virginia Military Institute but it also preserves affirmative action for women. Women's issues - now that women have far more political power than they did even 30 years ago - might be better off without inviting the legal scrutiny that is now undercutting the laws that helped racial minorities in the late-20th century. Had the ERA become law, any programs or laws that benefits women over men would probably be stricken down as unconstitutional.
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By Stephen Lee
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