The Volokh Conspiracy

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The Equal Rights Amendment: Back for an Encore Performance? Well…Performance, Yes, But Actual Constitution-Making, Probably Not.

The last thing left-leaning feminists want is a constitutional amendment that would jeopardize such things as preferential treatment for woman-owned businesses.


Who would have thought the Equal Rights Amendment would stage a comeback? Yet at least on the surface, that might seem to be happening. Nevada ratified the amendment in 2017. A few weeks ago the Illinois Senate did the same. Some of the ERA's cheerleaders argue that only two more states should be needed.

Still, appearances can be deceiving. Many readers may already know about the deadline issues: When Congress initially passed the ERA in 1972 it set a deadline for ratification of March 22, 1979. But only 35 of the needed 38 states had ratified by then (and of those 4 had voted to rescind their ratification). Arguably at least, the only way to move things along after that would have been to start from scratch. Instead, Congress purported to extend the deadline to June 30, 1982 (and the legal status of that extension has never been authoritatively resolved). In any event, no more states voted to ratify during the extension period. The legal status of ratifications beyond even the second deadline is, of course, subject to even more doubt.

I won't comment on those issues here. Instead, I want to ask this: Do left-leaning feminists really want the ERA to be ratified? Or is this just political theater? The safe bet is that, for most of these supporters, it's probably the latter.

Several years ago, in an essay entitled "The Equal Rights Amendment: Back for an Encore Performance?," I wrote that many of the same organizations that are pressing for the ERA's revival led the opposition to California's Proposition 209. That 1996 initiative's core provision (which is now part of California's Constitution) stated, "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." It was, in part, a mini-ERA (although it covered only public employment, public education, and public contracting and like Title VII it had a bona fide qualification exception designed to make clear that such things as separate restrooms would remain permissible).

These left-leaning feminist organizations opposed it with a passion. Instead, they supported preferential treatment for women, particularly affirmative action preferences in state jobs and preferences for woman-owned businesses in public contracting. In the final days of the Proposition 209 campaign, California's television airwaves were blanketed with a spot featuring a woman being stripped by male hands of her stethoscope, medical lab coat, hard hat, police cap and finally her business suit until she was left in torn clothes and underwear, while men chanted "take it off, take it all off." The voice over asked, "Want to be a doctor? Police Officer? Hard Hat? Forget it!" At the end, a final male hand reaches in to stroke her face suggestively. Katherine Spillar, Executive Vice President of Feminist Majority—who headed the coalition that produced the spot—was only too happy to confirm what that final flourish was intended to convey. "The suggestion is that a woman can always sell her body," she told the press.

These left-leaning feminists opposed Proposition 209 because it required equal treatment, and they preferred preferential treatment. Yet many of them now claim to support a revival of the ERA, which calls for "[e]quality of rights" and not for special rights. Surely they are playing a dangerous game here. The ERA would very likely be interpreted to invalidate the many state-sponsored "affirmative action" programs that currently give preferential treatment to women and women-owned businesses. Equal rights means equal rights. Given these circumstances, it is difficult to take efforts by left-leaning feminists to revive the ERA seriously—unless it's just theater. If they can get together even a shadow of an argument that 38 states have ratified, it will then be up to Congress to declare the ERA part of the Constitution or not. If Congress balks on the ground the deadline expired long ago, it will, with great fanfare, be chalked up to the "War on Women."

By the way, if you are surprised to think that many of the best-informed, left-leaning feminists could in their hearts of hearts hope that the ERA will be defeated, don't be. They are simply returning to their Progressive roots. The ERA was around for decades before Congress approved it. For most of that period it was strongly opposed by Progressives, including feminist icons like Eleanor Roosevelt and Dorothy Kenyon (who chaired the ACLU's Committee on Women's Rights). In 1940s and '50s, the ACLU and other left-of-center organizations dubbed it the "Unequal Rights Amendment." It was also opposed by both women's and men's trade unions Why? For exactly the same reason that more recent left-leaning feminists have. They wanted to protect laws and policies that they thought helped women especially, such as laws that limited their working conditions and hours while not doing so for men. Plus ça change.