The ERA Is Dead. Long Live The ERA.

Why we need to begin again.

We all know what’s about to hit us. We saw the waters draw back on November 5, 2024, as every ballot cast for Trump gathered into a tsunami of misogyny and bigotry, prejudice and hate backed by unprecedented power. And we all know that the wave will hit on January 20, 2025, in that farcical display when a man who has already betrayed his country to enemies foreign and domestic will put his right hand on a sacred text that he profanes and take an oath to uphold the United States Constitution that he has already pledged to dismantle.

There are few levies, embankments, or jetties that protect our island of democracy that could hope to hold or even break the violent and toxic waters that will soon surge onto every shore - and fewer still for women. But many hope that in his last days in office, President Biden might enact what could have been the highest, strongest of walls in our current network of fortifications: The Equal Rights Amendment.

Stated plainly, the Equal Rights Amendment is a constitutional amendment that would guarantee legal gender equality for women and men. It would seem that passing such a Constitutional Amendment would be a no-brainer. And yet, Americans have been fighting for this guarantee of gender equality under the law for over a hundred years with little to no measurable progress.

It began as the brainchild of Alice Paul and Crystal Eastman, two of Suffrage’s most effective badasses about whom far too little has been written. Alice, a Quaker by birth and a non-violent warrior at heart endured untold torture, including force-feeding through her nose in the furtherance of the women’s vote. Crystal’s groundbreaking investigative journalism into industrial working conditions in Pittsburg, Pennsylvania, in 1910 fundamentally changed the government’s policies on occupational health and safety in perpetuity.

Suffice it to say, the two got on like a house on fire.

Sometime soon after they’d both played a crucial role in passing the 19th Amendment, the two sat down to discuss what could be done next. While many thought the right to vote marked the culmination of the women’s movement, Alice and Crystal suspected that access to the ballot was insufficient to ensure equal protection under the law.

They were as correct in their suspicion then as they are now. As former Supreme Court Justice Antonin Scalia once famously said, “Certainly, the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that.”

I am hard-pressed to believe that the current SCOTUS-Trump majority would differ from Scalia’s opinion. But if the question of women’s relegation to second-class citizenship under the Constitution were still in doubt, one only need refer to the fact that legal cases involving gender discrimination have less than a 50% chance of being won because they are not held to the same standard as cases involving discrimination based on race, religion, and ethnicity, which the U.S. Constitution protects.

Knowing this, Alice and Crystal drafted the ERA’s antecedent, the Lucretia Mott Amendment, first introduced in 1923 to Congress. Unfortunately and ironically - or not, Trump’s historical analog, Calvin Coolidge, occupied the Oval Office at the time. Primarily concerned with enriching America’s oligarchic class by rolling back hard-won social advancements, all while carrying on at least two extramarital affairs, Coolidge was hardly the President to advocate for legalized gender equality. And so, the amendment quickly died on the House floor.

It would be another 40 years before the Women’s Movement again picked up the banner for equal treatment under the law and almost another decade before the idea returned to the floor of Congress as the ERA.

Here’s where the plot gets a bit sticky because Constitutional Amendments have an exceptionally high bar of ratification. It goes like this: Congress and the Senate have to approve the legitimacy of an amendment by a full two-thirds before it goes to individual State Legislatures, where it must also pass by two-thirds for ratification in individual State Constitutions. Not until three-fourths (38 States) of all State Legislatures adopt the amendment in their constitutions can it be published by the National Archivist and given to the President for ratification.

Despite the formidable gauntlet ahead, the ERA got off like a shot when Michigan Democratic Congresswoman Martha Griffiths introduced it on October 12, 1971. It passed the House with a resounding vote of 354 yeas against 24 nays with 51 not voting. Griffiths’s joint resolution then went to the Senate, unchanged on March 22, 1972, where it once more sailed through with a vote of 84 yeas, eight nays, and seven not voting.

Even Tricky Dick Nixon immediately endorsed the ERA.

Common sense and decency cut across partisan lines for a moment. After all, the ERA, at its core, lacks controversy. As soon-to-be Supreme Court Justice Ruth Bader Ginsburg wrote in the September 1973 issue of the American Bar Association Journal:

“The Equal Rights Amendment, in sum, would dedicate the nation to a new view of the rights and responsibilities of men and women. It firmly rejects sharp legislative lines between the sexes as constitutionally tolerable. Instead, it looks toward a legal system in which each person will be judged on the basis of individual merit and not on the basis of an unalterable trait of birth that bears no necessary relationship to need or ability.”

At first, walls seemed to fall in the wake of the ERA’s momentum. But there was that goddamn glass ceiling floating like a specter made manifest, just waiting to knock us cold as we tried to fly.

All over the country, the ERA went to die in State Legislatures where local politics and a lack of national attention combined into political quicksand. Though progress was measurable, it was too slow since the ERA included a sunset clause, stating that if it were not adopted by the requisite three-fourths of states by 1982, the amendment and all of its headway would become null and void.

The date came and went without the benchmark being met. Moreover, some states that ratified the ERA subsequently voted to rescind ratification. Though a dubious legislative act, it nevertheless mired the legitimacy of the amendment.

In 2016 and 2018, in more of a performative act of support than anything else, the Legislatures of Nevada and Illinois voted to add the ERA to their State Constitutions. Then, in 2020, Virginia technically became the 38th state to ratify the ERA. Theoretically, this could have triggered the publishing of the ERA and its subsequent enactment as several legal scholars have argued convincingly both the original deadline and the post-ratification votes to rescind the amendment’s addition to State constitutions were unconstitutional.

However, the fact remains that the legitimacy of the ERA is entangled in a legal quagmire. If the National Archivist were to publish the ERA, which she has already stated that she cannot, and were President Biden to ratify it, the amendment would be challenged constantly in state and federal courts. Given the prevailing winds in our judicial system, it is difficult to believe it would withstand the totality of the onslaught.

Still, there remains a case for its ratification as the ensuing legal challenges would raise the profile of the ERA and spark new dialog around why women are neither viewed nor treated as equal citizens under the law.

Conversely, its weak standing and inevitable defeat would cast doubt on the amendment’s premise and the legitimacy of its purpose. In the end, I have come to believe, the ERA would serve not as a fortress, but a house of cards that, once toppled, would render women that much more defenseless.

In February 2020, lifelong advocate of the ERA and Supreme Court Justice Ginsburg was asked once more about her views on its chances at a Georgetown University Law Center event.

“I would like to see a new beginning,” Ginsburg said, continuing, “There is too much controversy about latecomers,” then added that Virginia’s move came “long after the deadline passed.”

Time and money are finite. Women cannot pin their hopes on a castle in the sky that will dissipate with the first wind of opposition. To continue to press for the publication and ratification of the ERA in its current form is to delay the most urgent reality: We must begin again.

It is a setback, to be sure, if not a betrayal of all the people who worked so diligently to push the ERA past the finish line.

But a new start is also the chance to grow a vibrant, grassroots movement around an actionable goal.

I take as inspiration Jeannette Rankin’s campaign to pass Women’s Suffrage through the Montana Legislature. In 1911, when the amendment to the State Constitution was introduced, it lost in the State House by 16 votes, and the Senate refused to even debate the issue. For the next two years, Jeannette and hundreds of other women campaigned tirelessly to flip both chambers to their side. In 1913, when the amendment was reintroduced, it passed the Senate with 26 yea votes to 2 nay and the House by 74 yea votes to 2 nay.

Rapid change is possible. Let us begin anew with the wisdom and strength of all those who came before and the courage of our future success. There is hard work ahead. But hard work is good work.