The Equal Rights Amendment passed both houses of Congress and seemed assured of ratification when thirty states approved the amendment within one year; however, the amendment fell three states short of ratification by the 1982 deadline for ratification.
An equal rights amendment was first introduced in the U.S. Congress in 1923, shortly after woman suffrage was made part of the Constitution of the United States. The amendment gained little support, however, despite being introduced in every Congress thereafter. Certain groups in the population that seemed as though they should be natural supporters of the legislation at first opposed it. For example, labor unions were slow to support the amendment, for fear that it would nullify the special workers’ protections they had fought to gain for women. Even when unions and both political parties came to support the amendment by the 1940’s, however, there appeared little impetus to pass the bill through the two houses of Congress. Women’s rights were not part of the political agenda in the early postwar period, despite the movement of women during World War II into factory jobs ordinarily reserved for men and despite continuing patterns of discrimination in the postwar period, when women were paid less than men for equal work.
Ironically, the chances for an equal rights amendment changed dramatically as a result of political happenstance in the struggle for equal rights for African Americans. In 1964, Title VII of the Civil Rights Act,
In 1966, Betty Friedan formed the National Organization for Women
The amendment began to falter on its way to gaining approval from the three-quarters of the states required for passage. After their initial successes, proponents of the ERA found themselves faced with a more organized opposition, led in part by a conservative woman activist named Phyllis Schlafly. Working out of her home state of Illinois, Schlafly and her followers portrayed the Equal Rights Amendment as a threat to the family, motherhood, and certain social protections women had in American society. Schlafly was inadvertently aided in this task by the Supreme Court’s decision in Roe v. Wade (1973),
Opponents of the ERA extended the argument regarding judicial interference in many ways, conjuring up visions of unisex toilets and locker rooms. Many of these arguments had little merit, but they did tap into some citizens’ fears that the Supreme Court was forcing changes regarding race and gender that these citizens were not prepared to accept.
Supporters of the Equal Rights Amendment (ERA) march in Washington, D.C., in 1977 with a banner displaying the words of the amendment.
The ERA also raised the issue of whether women would be eligible for conscription if a military draft were revived. Proponents argued that this was both possible and appropriate. Eleanor Smeal, president of NOW from 1977 to 1980, noted that women would not be accorded full rights in the society until they were accorded full responsibilities in defending it. Many women who supported such principles as equal pay for equal work and full equality in the abstract found the draft provision difficult to accept, however. This caused support for the ERA to erode further.
The anti-ERA strategists were perhaps most successful in portraying support for the amendment as a position outside the American mainstream. Although few if any supporters of the amendment actually favored complete desegregation by gender, opponents used this argument to paint ERA activists as radicals who would change the Constitution with no thought to the possible consequences.
Given the difficulty in passing any constitutional amendment, it became increasingly more difficult for proponents to gain needed support for the ERA. From 1973 to 1979, only five more states approved the amendment, leaving it three states short of ratification. At that point, opponents and proponents advanced strategies that raised serious constitutional issues. Opponents convinced a few state legislatures to rescind their approval of the amendment; proponents argued that states could not withdraw approval and took the case to the Supreme Court. Proponents, facing the deadline of seven years approved by Congress in 1972 for passage of the amendment, lobbied both houses to extend the deadline by three years, to 1982. Opponents argued that the deadline could not be extended and also took their case to the Supreme Court. In both cases, the Court deferred judgment until after the 1982 deadline, when the failure to pass the amendment ended the conflict between the parties, rendering both issues moot.
As the second deadline for ratification neared, proponents of the amendment attempted to use other means to pressure nonratifying states to approve. NOW joined with other organizations to avoid holding conventions in states where the amendment had not passed. This strategy proved counterproductive, however, as it tended to punish urban areas where support for the ERA was strong anyway. The final blow to ratification came in 1980, when the Republican Party, led by Ronald Reagan as candidate for president, withdrew the support the party had maintained for an equal rights amendment for forty years. With the bipartisan consensus for the amendment ended, ratification appeared doomed. Between 1980 and the 1982 deadline for approval, no new states ratified the amendment, leaving it three states short of passage.
In many ways, the ERA’s failure had little direct effect on Supreme Court
The introduction and failure of the ERA had profound indirect effects on Court decisions. Once the ERA had been introduced and ratified by several states by 1973, the Court began to take a closer look at issues of equal protection for women under the law, applying the Fourteenth Amendment in a manner traditionally reserved for issues of race. Although the Court did not extend these protections as far for women as for racial minorities, it is unlikely that the Court would have moved in this direction without the ERA’s introduction.
The failure of the Equal Rights Amendment no doubt also had effects on future Court decisions. After the bipartisan consensus on the amendment broke down in 1980, proponents of equal rights were less likely to receive a sympathetic hearing in the courts. Indeed, this circumstance, coupled with the appointment of more conservative justices during Reagan’s presidency, contributed to reversals of equal rights decisions protecting women from discrimination.
The introduction and failure of the Equal Rights Amendment also had profound political effects on women’s lives. The campaign to pass the ERA affected the cause of women’s rights positively in several ways. It placed women’s issues on the political agenda. It tripled membership in the National Organization for Women, making NOW a powerful advocacy group for women’s rights. It prompted some states to add equal rights amendments to their own constitutions or to interpret statutes in a manner more favorable to women. Finally, it encouraged women on both sides of the issue to participate more in politics and to run for local, state, and national offices.
The ERA’s failure, however, was a political setback for women’s rights as well. The battle for the amendment became a cultural clash in which the NOW was often portrayed as an organization of radical feminists, outside the mainstream of American life. This portrayal did not accurately describe the profile of NOW members, but it did make the organization and the term “feminist” suspect in the minds of many potential supporters. The ERA’s failure may have also discouraged some women from claiming and fighting for equal rights in areas not covered by the amendment. Certainly, the cause of women’s rights was harmed once it became a subject for dispute between the political parties after the 1980 election. The failure to pass the Equal Rights Amendment may actually reflect only the extreme difficulty in ratifying any amendment to the Constitution.
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Barakso, Maryann. Governing Now: Grassroots Activism in the National Organization for Women. Ithaca, N.Y.: Cornell University Press, 2004. Traces the political evolution of NOW. Chapters 5 and 6 address the ERA. -
Berry, Mary Frances. Why ERA Failed: Politics, Women’s Rights, and the Amending Process of the Constitution. Bloomington: Indiana University Press, 1986. A former member of the Civil Rights Commission describes the ERA’s failure as an example of the difficulty in passing amendments to the Constitution. Concentrates on the amendment process rather than on the politics of ERA passage and compares the ERA to other failed amendments. Concludes that amendments that are controversial have little chance of ratification. Includes index. -
Bingaman, Anne K. A Commentary on the Effect of the Equal Rights Amendment on State Laws and Institutions. Sacramento: California Commission on the Status of Women’s Equal Rights Amendment Process, 1975. Important contribution to the equal rights literature reviews the possible effects the ERA would have had on existing state laws and institutions. Clear enough for the layperson to understand but contains enough documentation for legal analysts. Goes beyond the rhetoric of both opponents and proponents of the amendment to discuss the actual legal effects of the ERA. Includes index and table of relevant court cases. -
Critchlow, Donald T. Phyllis Schlafly and Grassroots Conservatism: A Woman’s Crusade. Princeton, N.J.: Princeton University Press, 2005. Objective biography of the prolific American conservative known for her opposition to feminism and the ERA. -
Feinberg, Renee. The Equal Rights Amendment: An Annotated Bibliography of the Issues, 1976-1985. Westport, Conn.: Greenwood Press, 1986. Invaluable sourcebook details scholarly works, newspaper and magazine articles, and television newscasts dealing with the ERA during a crucial period of its campaign and beyond. Usefully organized around such topics as public opinion, party politics, employment, education, and family and religion. Includes index and list of organizational resources on both sides of the debate. -
Hoff-Wilson, Joan, ed. Rights of Passage: The Past and Future of the ERA. Bloomington: Indiana University Press, 1986. Collection of essays attempts to place the failure of the ERA in historical perspective regarding past failures of similar legislation. Offers some interesting descriptions of early attempts to pass equal rights legislation. Includes bibliography and index. -
Mansbridge, Jane J. Why We Lost the ERA. Chicago: University of Chicago Press, 1986. A highly qualified political scientist—and an activist and proponent of the ERA—brings a sharp critical eye to the amendment’s failure. Presents careful analyses of public opinion data as well as in-depth discussion of the ratification campaign. Concludes that the amendment’s defeat reflected proponents’ misunderstanding of the state-by-state strategy needed to ratify the ERA. Includes index. -
Steiner, Gilbert Y. Constitutional Inequality: The Political Fortunes of the Equal Rights Amendment. Washington, D.C.: Brookings Institution, 1985. Analyzes the ERA’s failure solely from a political standpoint. Argues that the only window of opportunity for passage existed between the time when labor dropped its traditional opposition to the amendment and the time of the Supreme Court’s decision in Roe v. Wade. Makes some intriguing and unique arguments but neglects many of the underlying cultural issues involved in the ERA debate.
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