Ninety years after Congress passed the 19th amendment giving women the right to vote, a ghostly vestige continues to hover over Capitol Hill, kept alive by a few lonely Members and women’s rights advocates.
It’s the ghost of the unratified Equal Rights Amendment, a nearly century-old proposal that would change the Constitution and affirm equality of men and women.
In the 1970s, the ERA fell short by just three states in the quest to make it the 27th amendment.
Debuting in both chambers in 1923, the gender equality proposal was re-introduced in each Congress until it finally passed the House and Senate in 1972. Members, however, placed a seven-year time limit on the ERA’s ratification, and when the deadline came and went — and was even given a three-year extension — only 35 of the 38 states needed to enact the amendment had ratified the ERA.
That moment in 1982 was a devastating defeat for women’s rights advocates who rallied on the Hill in support of the amendment, and the movement never fully recovered.
Since then, an earnest push for the ERA rears its head in Congress every few years, but the proposal’s once-strong bipartisan support has waned. The lack of priority for the measure has crumbled its chances of passage, raising the question: Will it ever find a home in the Constitution?
The Constitution doesn’t require women be given the same rights as men — at least that’s what Supreme Court Justice Antonin Scalia said in an interview with California Lawyer magazine in January.
“Certainly the Constitution does not require discrimination on the basis of sex,” he said. “The only issue is whether it prohibits it. It doesn’t. ... If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.”
His comments set off the most recent push for the ERA on the Hill.
Although many judges would disagree, citing the 14th amendment for equal protection of the sexes, Scalia’s comments ignited a roar of outrage from women’s rights advocates nationwide. But they also blindsided lawmakers, rekindling — if only briefly — the longtime ERA debate and bringing the issue to the forefront.
When Speaker John Boehner (R-Ohio) led the House in reading the Constitution on the first day of the new Congress, a few Members joined the National Organization for Women at the House Triangle to protest Scalia’s comments and support the ERA.
“Three-fourths of Americans assume that the Equal Rights Amendment is in our Constitution,” Sen. Bob Menendez (D-N.J.) said at the rally. “Many others believe that social progress has eclipsed the need for it. But Justice Scalia’s recent comments have made it crystal clear that until equal protection for women is explicitly spelled out in the Constitution, the courts might not guarantee it.”
Senate Minority Leader Mitch McConnell, R-Ky., carries a musket on stage as he speaks during the American Conservative Union's Conservative Political Action Conference (CPAC) at National Harbor, Md., on Thursday March 6, 2014.