in a Name?
Does it matter how the Equal Rights Amendment is worded?
by Jo Freeman
to Abigails-L and Feminist in June 1996
posts on the wording of the Equal Rights Amendment have assumed that
the version introduced by the National Woman's Party is somehow written
in stone. Nothing could be further from the truth. The power of the
ERA has come more from the ideal it represents than the words of which
it is composed. Supporters and detractors, courts and Congresspeople
can and do interpret it as they please.
original version of the ERA stated that "Men and women shall
have equal rights throughout the United States and every place subject
to its jurisdiction." It was publicly proposed at a major conference
held in Seneca Falls on July 21, 1923, on the 75th anniversary of
the original feminist Declaration of Principles. Later that fall it
was officially introduced into Congress by Rep. Daniel R. Anthony
(R. Kan.), nephew of Susan B., and the Senate Republican Whip, Charles
Curtis (R. Kan.), both of whom had been suffrage supporters. (Equal
Rights, July 28, 1923, 189, Reel 156, NWP papers).
to writing the ERA, the NWP had prepared and proposed to the states
what were called Blanket Equality Bills, intended to eradicate almost
all sex based laws. Many of the proposals had a "safeguarding"
clause in them permitting protective labor legislation, which at that
time was strongly supported by virtually all progressive women. In
1921 Wisconsin became the only state to pass one of these, with an
exemption for "the special protection and privileges which [women]
now enjoy for the general welfare". The enforcement of this bill
was discouraging. Prior to its passage state law restricted legislative
employees to members of the male sex. When this practice was contested
after passage of the Equal Rights Act the Wisconsin attorney general
upheld it on the grounds that the long hours legislative employees
worked fell under the exemption. (Equal Rights, March 24, 1923,
34; "Unequal Opportunity in Wisconsin", Sept. 14, 1929,
Paul eventually became convinced that changing the laws state by state
was intolerably slow; an amendment to the U.S. Constitution would
be quicker. The NWP was not originally opposed to all sex-based legislation.
It intended the ERA to serve as a means of eradicating laws which
restricted women, not those, like hours limitations, that reformers
had sought to protect them. Paul knew that "many of our women
had helped put through these special labor laws for women" so
various wordings of the proposed Equal Rights Amendment were submitted
to Florence Kelley, head of the National Consumers' League (NCL) for
review. But within the NWP a feminist core argued that protection
was simply another form of sex discrimination. Gail Laughlin, a lawyer
and first President of the National Federation of Business and Professional
Women (BPW), finally persuaded Paul that permitting any sex-based
legislation would permit all sex-based legislation that might
"appeal to the caprice or prejudice of our legislatures."
(Paul oral history, 1972, 406. Goldmark, 1953, 181. Laughlin quote
in Cott, 1984, 56-9).
NWP met with Kelley and leaders of several women's organizations in
December 1921 ostensibly to discuss language for the amendment which
would exempt protective legislation. Neither side would give in to
the other. When Kelley couldn't persuade the NWP to drop the idea,
the NCL Board voted to oppose the amendment. Kelley publicly circulated
a pamphlet asking "Twenty Questions about the Federal Amendment
of the Woman's Party" which was clearly intended to discourage
support. The language of the ERA quoted by Kelley is quite different
from that finally proposed by the NWP. It reads "No political,
civil, or legal disabilities or inequalities on account of sex, or
on account of marriage unless applying alike to both sexes, shall
exist within the United States or any place subject to their jurisdiction."
(Kelley pamphlet of Jan. 1922 in Box 72, Perkins papers, Columbia
debate continued within the NWP for several months, the overwhelming
conclusion of legal authorities was that any version of the amendment
would nullify or throw open to question all legislation aimed at women.
Therefore, the NWP changed direction. It admitted protective laws
would be eliminated, but claimed that such an outcome would be desirable
because such laws only limited women's opportunities. Protection should
come through trade union organizing, not sex-based legislation.
almost all women's organizations opposed the ERA after it was introduced
into Congress in 1923, by the late thirties the tide was beginning
to turn. Under the leadership of Burnita Shelton Matthews, the National
Association of Woman Lawyers (NAWL) endorsed the ERA at its 1935 convention.
It was joined in 1937 by the National Federation of Business and Professional
Women's Clubs (BPW), whose president at the time was Charl Ormond
Williams. BPW was the first large organization to endorse the ERA.
In the 1940s the NWP instigated a major campaign for organizational
endorsements. It added the sizable General Federation of Women's Clubs
(GFWC) to the pro- column in April 1944, making it the first major
organization to actually switch sides. Smaller organizations also
endorsed the ERA, including service organizations such as the Soroptimists
and Zonta, and occupational organizations of women educators, dentists,
osteopaths, real estate agents, accountants and physicians. Many NWP
activists were founders or members of these groups. (Paul oral history,
440-2. Rawalt, 1983, 52. For decades, the GFWC had worked for protective
legislation and had opposed the ERA as a threat to these achievements.
In 1934 "a review of the question was ordered through a study
program." The study took ten years. Wells, 1953, 202. New
York Times, April 27, 1944, 20. The AAUW finally voted against
the ERA in 1939, after "studying" it since 1924; Becker,
1936, Congressional subcommittees reported the ERA favorably virtually
every year. In March of 1938, the Senate Committee on the Judiciary
considered it for the first time, returning it for further investigation
after a 9 to 9 tie vote. When the Fair Labor Standards Act was passed
by Congress in 1938, and affirmed by the Supreme Court in 1941 (U.S.
v. Darby, 312 U.S. 100, 1941), it undermined much of the logic
behind special legislation for women. Inclusion of support for the
ERA in the 1940 Republican Platform gave it legitimacy. In 1942 the
full Judiciary Committees of both houses in Congress voted favorably
for the ERA. The Senate Judiciary Committee made an official report
in support, while the House Judiciary Committee issued no report,
though it voted in favor by 9 to 7. (22 Congressional Digest,
April 1943, 106).
opposition, while weakened, was not without resources. In 1941 Senate
opponents expressed concern that the wording of the ERA would be interpreted
by the Supreme Court to require identical legislation by all the states,
a possibility not likely to endear the ERA even to opponents of state's
rights. Alice Paul was not wedded to the wording -- it had just been
a tenative proposal in 1923 -- so she commissioned several (male)
attorneys to suggest alternatives. Congressional sponsors and other
women's organizations also proposed different wordings to achieve
the goal of eliminating sex specific legislation and governmental
practices. When it became clear that this plethora of possibilities
was only destroying the consensus necessary for passage, Paul stepped
in with a draft of her own paralleling the wording of the Suffrage
Amendment. In 1928 she had added a doctorate in law to her Ph.D. and
felt as qualified as any to interpret legal language, though she first
had her words approved by the ERA's Senate co-sponsors. The new version
read: "Equality of rights under the law shall not be denied or
abridged by the United States, or by any State, on account of sex.
Congress and the several states shall have power, within their respective
jurisdiction, to enforce this article by appropriate legislation."
(Pardo, 1979, 105, 116. Paul oral history, 1972-73, 266, 269).
new wording was quickly approved in 1943 by the House and Senate subcommittees
and the full Senate Committee of the new, wartime, Congress, but it
ran into problems in the full Judiciary Committee of the House. Under
pressure from several Catholic organizations, particularly the National
Council of Catholic Women (NCCW) and the National Catholic Welfare
Conference, key Congressmen who had large Catholic constituencies
reversed their previous support. The ERA was defeated 11 to 15. (Pardo,
1979, 118-9, 123).
was in the 79th Congress of 1945-46 that two decades of skirmishing
over the ERA finally came to a head and the ERA was voted on on the
floor of the Senate. Hearings in the House committee were dispensed
with in favor of written statements, but were held in the Senate.
Both Judiciary Committees reported the bill favorably, the House by
15 to 7 in July, 1945 and the Senate by 11 to 6 in March of 1946.
When the Senate voted on the ERA on July 19, 1946, only 38 said yes.
This was a majority of those voting but well below the two-thirds
required for a Constitutional amendment. It was not necessary for
the House to vote. (Vote is at 2 Cong. Rec. July 19, 1946,
9405. 1945 CQ Almanac, II, 568. 25:12 Congressional Digest,
December 1946, 299. Pardo, 1972, 127-133).
January of 1950 the ERA was debated on the floor of the Senate once
again. At the end of the debate, Sen. Carl Hayden (D. Ariz.), at the
suggestion of the Women's Bureau, proposed an amendment which read:
"The provisions of this article shall not be construed to impair
any rights, benefits, or exemptions now or hereafter conferred by
law upon persons of the female sex." ERA proponents were caught
by surprise, and many Senators, whose support for the ERA had been
on the record but never very strong, took advantage of the opportunity
to vote for both amendments. The Hayden rider passed 51 to 31 and
the ERA, thus vitiated, passed 63 to 19. (96 Cong. Rec., Jan.
25, 1950, 872-3. 1950 CQ Almanac, 539. Harrison, 1988, 30-33.
St. George oral history, 1979, 38).
repeated itself in 1953. This time the Hayden rider passed by 58 to
25 and the ERA by 73 to 11. (99 Cong. Rec. July 16, 1953, 8954-5.
1953 CQ Almanac, 386. Harrison, 1988, 35).
the ERA came before Congress again in 1970-1972 there were further
attempts to change its language. A new version was submitted by Martha
Griffiths in the House and by Birch Bayh (D. Ind.) and Marlow Cook
(R. Ky.) as chief sponsors in the Senate which retained the substantive
language but changed the "enabling clauses" that specified
how the ERA was to be put into effect. To meet those objections of
Sen. Ervin which the sponsors did not feel detracted from the intent
of the ERA, they added a seven year limit on the time in which states
could ratify, delayed its enforcement until two years after ratification,
and altered and removed two phrases from the clause "Congress
[and the several states] shall have the power, [within their respective
jurisdictions], to enforce this article by appropriate legislation."
(S.J. Res. 8 and 9. Rawalt oral history, 765). The seven year deadline
for ratification had first been used for the Eighteenth Amendment;
it became common in proposed Constitutional amendments after World
January 18, 1971 Rawalt wrote Bayh and Cook that this language had
been approved by NOW, BPW, GFWC, WEAL, NFRW, NAWL, the Ad Hoc Committee,
and the D.C. Women's Bar association. She didn't tell them that the
NWP disapproved. The NWP wrote its own "Memorandum" which
pointed out that the "new" enabling clause had been lifted
the 1923 version of the ERA. It was changed in 1943 by the Senate
Judiciary Committee to meet objections by the states that they were
being asked to surrender all enforcement power to the federal government.
The NWP was concerned that State's Rights proponents in the state
legislatures would be troubled by the change.
the two years between the ERA's emergence from hibernation and its
passage in 1972 extensive hearings were held to establish a legislative
history. This history is what courts look to when they must interpret
Congressional language, whether statutes or Constitutional amendments.
The final Report of the Senate Judiciary Committee was one of the
strongest pro-ERA statements to come out of Congress, marshalling
the arguments that had been developed for the past eighteen months
to counteract the multitudinous objections. (1972 CQ Almanac,
200. U.S. Senate Report 92-689, March 14, 1972).
the 1970s, when the ERA was debated in Congress and in the ratification
struggle, fifteen states added some form of equal rights provision
to their State Constitutions or included it in a general Constitutional
revision. Eight use language similar to that of the proposed Federal
amendment. Most of the others have clauses patterned after the Equal
Protection clause of the Fourteenth Amendment with sex included as
a category. Utah and Wyoming already had similar provisions in their
original Constitutions when they became states in 1896 and 1890 respectively.
Of those states that do not have ERAs, California and Oregon have
declared sex to be a suspect class, subjecting it to the same strict
scrutiny as racial classifications.
judicial decisions are highly varied even when interpreting the same
language. Washington and Pennsylvania courts have taken a stricter
approach than the Supreme Court, striking down virtually all gender-based
statutes including ones which excluded women from contact sports dominated
by men. Several state Supreme Courts have avoided interpreting their
ERA by deciding cases on other grounds or refusing to review them
at all. Utah, Louisiana, and Virginia have followed a traditional
"rational basis" standard and found virtually all sex-based
laws to be reasonable. Several states applied the "strict scrutiny"
standard which the ERA was meant to achieve, while others relied on
lesser standards, usually derived from the latest Supreme Court language,
or did not articulate a specific standard. Thus laws which have been
held to violate some state ERAs have been upheld in others. Even in
states where the highest court has held sex to be a suspect class,
such as Illinois, lower state courts have applied the rule inconsistently
with the result that statutes invalidated in one jurisdiction are
upheld in another.
issues, such as maternal preference in custody cases, have provoked
extremely varied responses. The Utah Supreme Court found it "wise"
that children should be in the care of their mother. Maryland permits
the use of maternal preference as a tiebreaker. But New York, where
voters rejected a state ERA, a court held the maternal preference
rule violated the Fourteenth Amendment.
courts acting under a state ERA are not limited to standard equal
protection analysis, few have chosen to break new paths. Those with
ERAs are likely to apply a stricter standard than those without, but
most tend to follow the lead of the Supreme Court. Judges also respond
to legislative history, the political culture of their own geographic
area, current public debate, and their perception of the customs and
mores about proper sex roles. The decisions interpreting state ERAs
demonstrate that the courts are not institutions removed from society
responding only to legislative dictate and abstract legal analysis.
The law is neither static nor apolitical. Instead it is a tool, only
viable when it is actively used, and often reflecting the views of
those who use it. The changes in judicial attitude of the last three
decades have not occurred in a vacuum. They have been as much a response
to the women's liberation movement as the many legislative changes
have been. Without a strong movement, even the best of words will
receive the worst of interpretations.
Susan D., The Origins of the Equal Rights Amendment: American Feminism
Between the Wars, Westport, Conn.: Greenwood Press, 1981.
Cott, Nancy F., "Feminist Politics in the 1920s: The National
Woman's Party", 71 Journal of American History, June 1984,
Equal Rights, the official newsletter of the National Woman's
Party, published from 1923 to 1954.
Goldmark, Josephine, Impatient Crusader: Florence Kelley's Life
Story, Urbana, Ill.: University of Illinois Press, 1953.
Harrison, Cynthia, On Account of Sex: The Politics of Women's Issues
1945-1968, Berkeley, Calif.: U. Calif. Press, 1988.
National Woman's Party Papers: 1913-1974, microfilm, University Publications
Pardo, Thomas C., The National Woman's Party Papers 1913-1974:
A Guide to the Microfilm Edition, Sanford, North Carolina: Microfilm
Corporation of America, 1979.
Paul, Alice, Conversations with Alice Paul: Woman Suffrage and
the ERA, oral history interview by Amelia Fry, Suffragists Oral
History Project, Regional Oral History Office, the Bancroft Library,
University of California at Berkeley, November 1972, May 1973,
Rawalt, Marguerite, "The Equal Rights Amendment", in Irene
Tinker, ed., Women in Washington, Beverly Hills: Sage, 1983,
St. George, Katherine, oral history interview by Fern S. Ingersoll,
May 10, 1979, Library of Congress.
Wells, Mildred White, Unity in Diversity: The History of the General
Federation of Women's Clubs, Wash, D.C.: GFWC, 1953.