In the 21st century — the era that boasts of self-driving cars, artificial intelligence and cryptocurrency — women are still fighting for protection against legal sex discrimination. According to a 2020 poll conducted by the Associated Press National Opinion Research Center for Public Affairs, 72% of Americans “incorrectly believe the Constitution now guarantees men and women equal rights under the law.”
The Fourteenth Amendment’s Equal Protection Clause is likely at fault for this confusion. This clause says that states should not “deprive any person of life, liberty, or property, without due process of law” or “deny to any person within its jurisdiction the equal protection of the laws.” While it does declare the need for equality, it was originally passed to give former male slaves equal protection and voting rights.
However, the Fourteenth Amendment’s Equal Protection Clause is not a sufficient substitute for a robust Equal Rights Amendment (ERA), and misconstruing it as such only endangers women’s rights. Ratifying the ERA is integral to women’s rights in the United States as it ensures constitutional protection against sex discrimination; the proposed amendment is a vital piece to gender equality that has long been undermined.
It first became clear that the Fourteenth Amendment’s Equal Protection Clause was not enough to ensure the legal protection of women in Bradwell v. Illinois. Although Myra Bradwell passed the Illinois bar exam, the state supreme court denied her admission on the basis of “coverture” — a law doctrine prohibiting married women from making legal decisions without her husband’s consent.
Furthermore, the Reagan-appointed Supreme Court Justice Antonin Scalia stated, “[n]obody thought [the Fourteenth Amendment] was directed against sex discrimination.” This admission undermines the common argument that the Fourteenth Amendment is an adequate substitute for a specific ERA.
Alice Paul and Crystal Eastman, early suffragettes of the National Woman’s Party, first drafted the ERA in 1923. At the time it failed to gain support because Time Magazine states that it was believed this proposal would “[divide] members of the women’s movement along class lines.” Working women were concerned that the ERA would impose on their efforts to work longer hours by implementing safe factory laws. Additionally, women accounted for only four spots in Congress, giving their concerns less judicial legitimacy.
In 1970, a new class of female lawmakers pushed to make the ERA the first and foremost of legislative priority. On March 22, 1972, the ERA was finally passed with bipartisan support and distributed to the states for ratification within a seven-year deadline. The amendment needed at least 38 states to ratify the proposed amendment within the given time period in order to become official within the Constitution.
Within the first year, 30 out of the 38 states had ratified it. Advocacy slowed when conservative activists launched the “STOP ERA” campaign that argued the ERA would “undermine the family.” They claimed it would result in the loss of emotional and financial security of marriage and go against the Christian, cultural ideal of a woman’s place in the home.
Although the deadline was extended from 1979 to 1982, it was still three states short of ratification. Just recently in 2020, Virginia became the 38th state to ratify the ERA, 38 years after the deadline. Now, the only obstacle that stands in the way of this decades-long pursuit is urging Congress to eliminate their original deadline.
Other than the 19th Amendment, which gives women the right to vote, there are no amendments that guarantee equal rights for citizens regardless of gender. The many laws and court rulings that protect women — Title VII (1964), Title IX (1972) and the Equal Pay Act of 1963, just to name a few — can be overturned by a simple majority, as the recent court decision overturning Roe v. Wade demonstrated.
To combat this ever-growing concern, the ERA increases chances of a court using the strict, suspect class level of scrutiny in cases that involve discrimination on the basis of sex. Currently, courts analyze these cases with intermediate scrutiny that only requires extremely persuasive evidence to defend sex-based discrimination.
However, strictly scrutinized cases would need to display a “compelling governmental interest,” according to Cornell Law School, to justify discrimination, which is a much higher hurdle to jump. This level is only applied to cases that involve race, free-speech laws, national origin and religion. Courts evaluating laws under this level will most likely strike them down.
By recognizing the shortcomings that have come from the 21st century’s lack of ERA, one can hardly imagine a future without such protections. The future of women’s protection in the courtroom and beyond is contingent on the Constitutional ratification of this amendment. Although it’s 38 years past the deadline, it’s important that Congress overlooks this shortcoming and ensures equal protection in all states.
Trista Lara is an Opinion Intern for the spring 2023 quarter. She can be reached at tlara@uci.edu.