Civil Liberties

The Return of the Equal Rights Amendment

A redundant civil rights fight ramps up.


When Congress approved the Equal Rights Amendment in 1972, supporters said it would bring about huge changes in attitudes and practices, and they were right. Women now mostly work outside the home, they run giant corporations, they serve in the military in combat zones, they occupy high offices in all three branches of government, and one may be the next president. The amazing thing is that the amendment precipitated all these advances without ever being ratified.

Today, though, proponents are mounting a new campaign to change the Constitution. The measure, now called the Women's Equality Amendment, consists of a simple mandate: "Equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex." It's the same as the original ERA, which died in 1982 after falling three states short of the 38 states needed.

In 1972, equal rights for women was a new and controversial concept. By now, it has permeated deep into the national consciousness. The idea that the government should disadvantage people merely because of their gender has few adherents and even fewer public advocates. American society has gone a long way toward putting the sexes on a legally equal footing.

One supporter of the revived amendment is Democratic State Rep. Lindsley Smith of Arkansas, who told The Washington Post, "The question I get most frequently is, 'Lindsley, I thought this already was in the Constitution.' " What she overlooks is that, for all intents and purposes, it is.

In the last three decades, the Supreme Court has handed down a string of decisions overturning laws that treat people differently on the basis of sex. It required the all-male Virginia Military Institute to admit females, ordered the Air Force to provide the same dependent benefits to spouses of women as it provides to spouses of men, and struck down an Oklahoma law setting a different drinking age for men and women.

These decisions (and others) grew out of the same principle, that everyone is entitled to equal treatment under the 14th Amendment. The court said in 1996—in an opinion written by Ruth Bader Ginsburg—"Parties who seek to defend gender-based government action must demonstrate an exceedingly persuasive justification for that action. Neither federal nor state government acts compatibly with equal protection when a law or official policy denies to women, simply because they are women, full citizenship stature."

As Northwestern University law professor Andrew Koppelman puts it, Phyllis Schlafly and other opponents won the battle but lost the war: "The ERA was defeated, but its rule against sex discrimination was incorporated into constitutional law anyway, by judicial interpretation of the 14th Amendment."

There are also numerous federal and state statutes prohibiting discrimination—such as in hiring and pay—against women. If those haven't stamped it out, an amendment isn't likely to help. In fact, says Koppelman, "it's hard to imagine it making any difference at all."

Supporters who say it would make a difference, though, find themselves emphasizing that it would not make too much of a difference. Contrary to the warnings of some critics, we are told, it would not force states to pay for abortions, legalize same-sex marriage or subject women to a military draft.

Oh? The organization 4ERA admits that in some states whose constitutions have equal rights amendments, the courts have interpreted them to require publicly funded abortions. And state-level ERAs were a big reason that the supreme courts in Hawaii and Massachusetts said same-sex marriage must be allowed (though the Hawaii decision was reversed by constitutional amendment).

As for the draft, the group says, "Congress already has the power to draft women into the armed services." Well, yes. But at present, Congress has no obligation to do so if it chooses to impose conscription. With this language in the Constitution, it might.

In fact, no one knows for sure what the effect of the Women's Equality Amendment would be. When you approve a constitutional amendment setting the minimum voting age at 18, you can be confident that it will not turn out to be 19 or 17. But when you issue a broad mandate, you buy a surprise package whose contents will become known only after it is too late.

The universally accepted goals of the amendment have already been achieved, so the only important changes it might bring are those that Americans have decided we don't want. Which is why its time may have come—and gone.