ChrisWeigant.com

Illinois Ratifies Equal Rights Amendment

[ Posted Thursday, May 31st, 2018 – 17:27 PDT ]

Illinois just became the 37th state to ratify the Equal Rights Amendment. Since the necessary constitutional requirement for adopting amendments is ratification by the state legislatures of three-fourths of the total number of states, this would seem to indicate that if only one more state did so, the Equal Rights Amendment would become the Twenty-Eighth Amendment to the United States Constitution. But it's not quite that simple.

Women's groups have been trying to get an amendment guaranteeing equality between the sexes under the law since the times of the suffragettes. After several early efforts to do so failed, in 1972 the following amendment was approved by both houses of Congress:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

It was thus sent to the states for ratification (the president has no part to play in the amendment process, it's worth pointing out). Initially, it had a deadline of March 22, 1979 -- in other words, if it hadn't been ratified by enough states by that date, it would turn into a pumpkin.

When this deadline was reached, only 35 states had ratified it, which put it three short of the goal. Initially, there was considerable support from both parties for the amendment, including from all three presidents during the initial ratification period (Richard Nixon, Gerald Ford, and Jimmy Carter).

Then the opposition got organized, with Phyllis Schlafly leading the charge. The E.R.A. would, she warned, mean (gasp!) women would get drafted for future wars (the draft was a big political issue in the 1970s, even for men), gay couples might be able to get married, and single-sex bathrooms would disappear. This turned conservatives against the amendment, and indeed four state legislatures tried to rescind their ratification. Another state (South Dakota) also passed a resolution stating that their ratification would expire after the 1979 deadline, if the proposal hadn't become a constitutional amendment by that date.

In 1978, after the deadline had passed, President Carter led an effort to extend the deadline. Congress passed a deadline extension to June 30, 1982. However, not a single state took advantage of this extension to ratify the proposed amendment.

This left it either three states short of becoming a constitutional amendment, or eight states short. The constitutionality of rescinding a ratification is an open question -- the Constitution itself is silent on the matter, meaning it is open to legal interpretation whether states are even able to take back a previous ratification approval. It is also somewhat of an open question whether the deadline can again be extended by Congress. That is the goal of the modern push to get the E.R.A. over the finish line.

Originally, proposed amendments did not have built-in deadlines. This was made crystal clear by the ratification of the Twenty-Seventh Amendment in 1992, which had originally been proposed as part of the Bill of Rights in 1789 (the original proposal had twelve amendments, but only ten were ratified). This is a fascinating story in its own right (involving a very motivated and determined student who got irate over getting a low grade on a college paper).

A little over one year ago, the Nevada legislature ratified the Equal Rights Amendment. Illinois just did the same. There are efforts in other states to follow suit, but so far they have not succeeded.

So where does that leave the Equal Rights Amendment? In limbo, where it has been for the past four decades. However, the task is not completely impossible, which is why some are still fighting hard for ratification.

Let's take a look at the current map of where all the states now stand. Six states have never ratified the amendment in even a single house of their state legislature: Alabama, Arizona, Arkansas, Georgia, Mississippi, and Utah. Seven states have passed ratification in at least one house: Florida, Louisiana, Missouri, Oklahoma, North Carolina, South Carolina, and Virginia. And five states have attempted in one form or another to rescind their ratifications after the fact: Idaho, Kentucky, Nebraska, South Dakota, and Tennessee. This adds up to 18 states, six of which would have to ratify (or re-ratify) the Equal Rights Amendment if it has any chance of passage. Or one state, if you're an optimist and believe that states can't constitutionally "unratify" a proposed amendment.

However, when you examine the 32 states which have ratified the amendment, it's plain to see that if the Equal Rights Amendment ever got close, a number of them might just consider trying to rescind their own ratifications. States such as Texas, Kansas, and Indiana (just to pick three) might lead such a wave of modern unratification efforts. So it might wind up being a dance of "one step forward, one step back."

Putting that possibility aside for the moment, while getting six more states to jump on board is a pretty high bar, it may not be an impossible one in the #MeToo era. Women are already being credited with being the most crucial voting demographic in advance of the 2018 midterms, so a big push for the Equal Rights Amendment might fit very well with public sentiment right now. Especially considering how much of the anti-E.R.A. arguments have been rendered moot by the changing times. Women are now serving in combat in the U.S. military, even on submarines and the front battle lines. That barrier has fallen. Gay people of either sex can get married now. We're still fighting the "bathroom wars," but even this seems to be fading as a hot-button issue. So most of the scary arguments against the E.R.A. put forth by Schlafly and her ilk in the 1970s wouldn't even apply today.

So how could the E.R.A. get to the magic number of 38? If the courts rule that unratifying is not valid, then they'd need only a single state, and out of all the possibilities Virginia seems most likely. The Virginia senate has voted five times since 2011 to ratify the E.R.A., but the general assembly has never passed the measure. However, Virginia got a whole lot bluer in the last election, as Democrats gained an enormous amount of seats in the state legislature and took back the governor's office. Virginia Republicans are shaking in their boots at this point, as evidenced by the fact that Virginia just passed a Medicaid expansion the Republicans had been fighting hard against ever since Obamacare became law. So the time may be ripe for Virginia to act.

While all the other states that passed the E.R.A. in one house of their state's legislature have not done so since 1982, there are some possibilities for doing so now. Florida, Missouri, and North Carolina seem like the most obvious targets, since all are at least one shade of purple or another. If these three and Virginia acted, it would leave the effort only two states short of the goal. Getting two of the remaining states would be tough, but not impossible. Georgia seems like the most likely of the states which never ratified the E.R.A. to possibly do so now (especially if it elects the first African-American woman governor in U.S. history in November). Of the remaining states, the most likely for the effort to succeed might be Louisiana, Kentucky, Tennessee, Arizona, or possibly South Dakota. As I said, it'd be tough to get six more states to ratify, but not completely impossible (especially if this election year becomes "Year Of The Woman 2.0").

Even if this monumental effort succeeded, though, it would still require Congress to act, to set a new deadline for the proposed amendment's ratification. There would also be the inevitable legal challenges. So it's far from a done deal by any stretch of the imagination.

Politically, however, it would seem to be an issue that heavily favors Democrats while putting Republicans in a defensive crouch. To put this another way, it'd be a dandy issue for Democrats to include in their campaign slogans and promises during this year's campaign (and beyond). It might be argued that such support is no more than symbolic, since even if 38 states do ratify the proposal there would still be no guarantee it'll ever become an actual amendment. But at the same time, symbolic or not, it would be seen by most as standing on the right side of history. Women are already disgusted with Donald Trump (and, by extension, other Republicans) for their callous attitude towards women's rights. What better time to begin the push for the Equal Rights Amendment's ratification? The old arguments against it have all but collapsed, which would leave reactionary Republicans without much of a political leg to stand on.

The Illinois state legislature just became the 37th state to ratify the Equal Rights Amendment. If one more state did so, then a very valid argument could be made that three-fourths of the states have now approved it (at one time or another), therefore it deserves becoming the Twenty-Eighth Amendment to the United States Constitution. That is a rallying cry many women could get behind, to state the obvious. Being only one state away from the goal also means it becomes a very potent issue at the state level as well (for all those down-ballot races for state legislative seats this November). That's a pretty exciting prospect, and what seems to be a real political winner. Democrats have won a lot of the "culture wars" in the past decade or so, and ratifying the E.R.A. could actually become one of the crowning victories in this larger effort.

-- Chris Weigant

 

Follow Chris on Twitter: @ChrisWeigant

 

15 Comments on “Illinois Ratifies Equal Rights Amendment”

  1. [1] 
    Kick wrote:

    CW: Then the opposition got organized, with Phyllis Schlafly leading the charge. The E.R.A. would, she warned, mean (gasp!) women would get drafted for future wars (the draft was a big political issue in the 1970s, even for men), gay couples might be able to get married, and single-sex bathrooms would disappear.

    My mother always says to say something good about the dead. Phyllis Schlafly is dead. Good.

  2. [2] 
    Paula wrote:

    Phyllis Schlafly is dead. Good.

    Seconded.

  3. [3] 
    C. R. Stucki wrote:

    So what would be the practical effect of passage/adoption? Is "equality of rights under the law" currently being "denied or abridged" anywhere "on account of sex"?

    Surely nobody's dumb enough to think that it would eliminate pay differentials between men and women? Far as I'm aware, the law doesn't mandate wage levels based on anything at all, and certainly not on sex.

  4. [4] 
    Don Harris wrote:

    If only there was an Equal Writes Amendment that would force you to do the right thing and write about One Demand.

    Not that there is anything but yourself stopping you.

  5. [5] 
    TheStig wrote:

    Paula-2

    "Phyllis Schlafly is dead."

    "No, no she's outside looking in."

    No word yet as to the make and model of her astral plane. I'm sure it's a nice one.

    Schafly's life as a very rich and influential woman can be summarized as :class trumps sex.

    Those 3 words time travel beautifully to 2018, in a slightly different, orange hued context.

  6. [6] 
    TheStig wrote:

    DH-

    You seem to assume your review from CW would be positive. AKA be careful what you wish for.

  7. [7] 
    TheStig wrote:

    CW-

    Excellent column. A few months ago I tried to figure out just where in limbo ERA was. The task proved to be complicated and daunting. Other complicated and daunting tasks intervened. Thanks for clearing this matter up. :)

  8. [8] 
    John M wrote:

    [3] C. R. Stucki

    "So what would be the practical effect of passage/adoption? Is "equality of rights under the law" currently being "denied or abridged" anywhere "on account of sex"?"

    YES

    Google, Microsoft, Uber, and Walmart have all faced recent lawsuits by their female employees alleging discrimination.

    The Trump administration also rolled back Obama regulatory rules that banned forced arbitration clauses for sexual harassment, sexual assault or discrimination claims.

    That doesn't even begin to include what the Education department under Betsy Devos is doing regarding rolling back civil rights claims and Title IX funding, etc.

    So yes, an actual amendment to the U.S. constitution would help to put a check on all of that and give some actual teeth to legal standing that is currently subject to the whims of any one particular administration.

  9. [9] 
    C. R. Stucki wrote:

    John M

    I'm not saying pay differentials don't EXIST, I said they do not exist because of any legal mandate.

    Pay differentials almost invariably reflect/represent productivity differentials. It's a fact of life that biological differences create productivity differences. Maybe it ain't "fair", but it is an undeniable fact of life.

  10. [10] 
    Don Harris wrote:

    TS (6)-
    No worries. The reactions from commenters here have already shattered any illusions of 100% positive affirmation I may have harbored.

    Whether CW writes about One Demand or addresses One Demand through comments or personal direct contact it could be positive, negative, neutral or some combination of each.

    The point is if he writes about it, it could become part of the public discourse where discussion of it will be positive, negative or neutral.

    And then those that do view it positively will learn about it and possibly participate and those that do not will continue to do what they think will work.

    In a recent article on Stacey Abrams she said that people trying to work on issues should not be afraid to be wrong.

    I'm not. I only ask for and welcome the opportunity to find out.

  11. [11] 
    TheStig wrote:

    "Pay differentials almost invariably reflect/represent productivity differentials."

    Really? Three women who would beg differ with you and have the economic chops to back it up.

    https://www.epi.org/publication/what-is-the-gender-pay-gap-and-is-it-real/#epi-toc-42

    Where is the data to back up what you say? Adjusted for age, education and profession.

    "I'm not saying pay differentials don't EXIST, I said they do not exist because of any legal mandate."

    If you get rid of the double negatives in your statement you can re-frame you argument (excuse) as:

    Pay differentials exist because of a lack of mandated protections against sex based bias. Implied: so what? How comforting that is to the economically inflicted!

    CRS you are very smug, but for the life of me I can't see why. Your reasoning skills are purely rhetorical tricks. When it comes to economic discussion around here I much prefer the comments of neilm.

    I'm turning on the damn comment (noise suppression) filter again.

  12. [12] 
    C. R. Stucki wrote:

    Stig

    Of course you prefer neilm's version of economics, because economics can get extremely political, you share neilm's political ideology, and you both happily let political ideology outweigh and overwhelm economics.

    The "Three women" who disagree with me can cite random statistics all day long, but in the end, the facts of (economic) life as they pertain to productivity, compensation etc, are and always will be:

    1) Men are ON AVERAGE, physically stronger than women.

    2) Men are ON AVERAGE more entrepreneurial than women.

    3) Men are ON AVERAGE more agressive than women.

    4) Men are ON AVERAGE more genetically endowed with
    talents and skills (especially STEM stuff) that
    promote productivity, than are women.

    5) Men don't get pregnant.

    Sorry if I seem "smug", sorry that you understand principles of economics too a lesser extent than I do, sorry that you and your fellow Dems/Libs elect to not live in the world of reality, but I cannot remedy any of those things.

  13. [13] 
    Kick wrote:

    TS
    5

    No word yet as to the make and model of her astral plane. I'm sure it's a nice one.

    I believe I recall hearing that she got her husband's permission to go to Hell. :)

  14. [14] 
    ListenWhenYouHear wrote:

    CRS [12]

    I can only assume you typed that entire post using only one hand based on the amount of self-loving, ego-stroking bullshit that gushes from each line.

    What does physical strength have to do with accounting?

    And “entrepreneurial” characteristics in employees typically do not benefit the companies they work for.

    I don’t know if I want my surgeon to be overly aggressive when having to perform life saving procedures.

    I would ask for links to the studies that support your macho, Onanistic swill, but I am guessing they’ll just be links to one of Trump’s books.

  15. [15] 
    C. R. Stucki wrote:

    Listen

    Is accounting the only job you've ever heard of? Most people have heard of construction jobs, warehouse jobs, farming jobs, etc., where physical strength contributes much to productivity.

    The vast majority of entrepreneurs work for companies they own or are major stockholders in. I'm betting their skills DO "benefit the companies they work for".

    You're assigning a very limited definition to "aggressive", sounds like a clear-cut case of marginal literacy level. Check out related terms such as 'motivated'. But, if you prefer wimpy surgeons performing your life-saving procedures, don't let me dissuade you!

    If you require "studies" to recognize facts that most rational people assume fall under the heading of 'common sense/common knowledge', you'll have to get them from somebody else. Not worth my effort.

    Sorry, your Old Testament reference passed right over my head, but I actually type with TWO hands, although with only two fingers, those being my index fingers, which leaves both middle fingers free to salute your pusilanimous bullshit.

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