The E.R.A. and the Implied Rights of Women

"Every constitution written since the end of World War II includes a provision that men and women are citizens of equal stature. Ours does not...We just have the equal protection clause, which everyone knows was not meant in the 1860s to change anything with regard to women's status.  Women didn't get to vote until 1920." - Ruth Bader Ginsburg, Interview on January 31, 2005.

Next month marks the 90th year anniversary of the introduction of what is presently known as the Equal Rights Amendment.  The proposed amendment, originally known as the Lucretia Mott Amendment, was first introduced in 1923.

"Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction." - Lucretia Mott Amendment

The Lucretia Mott Amendment was presented to ten consecutive sessions of Congress between 1923 and 1942.  The proposal was revised and reintroduced in both chambers of Congress as the Alice Paul Amendment in 1943.

"Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex." - Alice Paul Amendment

The Alice Paul Amendment was presented to fifteen consecutive sessions of Congress between 1943 and 1971.  Just as its predecessor had, the proposed amendment failed to gain the approval of Congress.  The proposal was, once again, reworded before it was reintroduced in both chambers of Congress as the Equal Rights Amendment in 1972.  

This final revision of the amendment was approved by Congress and subsequently submitted to the states for ratification.  Of the 38 states required for its inclusion in the Constitution, only 35 have done so.  Today the proposed amendment continues to be referred to as the Equal Rights Amendment and is known to the 112th session of Congress as Senate Joint Resolution 21 and House Joint Resolution 69:

Proposing an amendment to the Constitution of the United States relative to equal rights for men and women. 

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States: 

Article— 

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 article shall take effect 2 years after the date of ratification.’

While I have yet to come across what I would consider to be a legitimate argument against the ratification of the Equal Rights Amendment, I have long lost count of the number of irrational arguments against its ratification that I have read over the years.

“I never doubted that equal rights was the right direction.  Most reforms, most problems, are complicated.  But to me there is nothing complicated about ordinary equality.” – Alice Paul, Interview in 1972

Some have reasoned that women were granted equal rights under the law when voting rights were extended to the female population and that further amending the Constitution is unnecessary.  Others have maintained that the inclusion of any such bill would only serve to further restrict women’s rights.  The first group believes that the proposed amendment would merely maintain the status quo while the second group believes that the proposed amendment would revoke existing rights, but both groups base their opposition on what I consider to be disjointed logic.

Until the Equal Rights Amendment is made law, women will continue be allotted a number of implied rights and a single irrevocable right.  While many women today are satisfied with the implication of equal rights that cannot be denied or abridged, it was not a sentiment shared by those that fought for our right to vote.

Alice Paul, a paramount suffragist leader, felt so strongly against settling for implied rights that she wrote the first two versions of the Equal Rights Amendment and introduced them in Congress for 49 consecutive years.  While Alice Paul devoted 7 years of her life to ensuring that we be guaranteed the right to vote, she spent 51 years of her life attempting to amend the Constitution to explicitly state that the rights of both men and women be irrevocable.

The Equal Protection Clause under the 14th Amendment:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the Untied States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." 

While many people assume that the 14th Amendment protects all citizens against a number of well-known rights, this is untrue to at least one member of the Supreme Court.  According to Supreme Court Justice Antonin Scalia, the 14th Amendment excludes women and men of a certain persuasion from equal protection under the law.

It is important to note that his interpretation of the 14th Amendment is not merely his personal opinion.  I say this because his position in our federal government requires that he apply his understanding of the Constitution to cases presented to the Supreme Court.  This means that if enough of his fellow Justices concurred with his interpretation of the 14th Amendment's Equal Protections Clause, women face the potential loss of each and every one of their implied rights.  The Equal Rights Amendment aims to guarantee these rights by eliminating the need to interpret ambiguous words like “citizen” and “person.

Gender Discrimination:

"...until opportunity is as free from sex discrimination as the right to vote finally came to be, no man has any right to criticize women for failure to measure up to men." - Mary Barnett Gilson

While many consider gender discrimination to be a non-issue in modern society, I believe that it is prevalent in the United States.  Women are regularly required to provide proof that implied rights are legitimate and constitutional rights that are extended to women by the 14th Amendment.

The Supreme Court heard Davis v. Monroe County Board of Education et al. in 1999.  The suit sought damages for sexual harassment by a classmate at a public elementary school.  The teacher, the principle, and the county school board refused to investigate the claims of harassment and made no plan to prevent harassment in the future.  The original decision by the Eleventh Circuit in 1994 was found to be erroneous by the Supreme Court and was reversed.

I was baffled that it took five years of legal battles to affirm that federally funded educators have a responsibility to protect a child from  gender discrimination and sexual harassment.  If the rights guaranteed by the 14th Amendment were truly meant to be extended to society as a whole, why are women forced to spend years fighting through the legal system to verify that these rights are applicable to women?  Is it really necessary for me to take a blatant case of gender discrimination to the Supreme Court and if so, how can any person consider the implication of rights to be adequate?

Loss of Implied Rights:

Without the Equal Rights Amendment, the Constitution does not explicitly state that implied rights cannot be altered or revoked by Congress.  On a number of occasions Congress has sought to maim equal opportunity in education, prevent the re-authorization of the Violence Against Women Act, rejected the Paycheck Fairness Act, and have refused to ratify the United Nations' Convention on the Elimination of All Forms of Discrimination Against Women.

It is more than reasonable to assume that, as a whole, Congress hopes to prevent women from attaining equal opportunities in education, accessing programs and services intended to aid victims of domestic assault, or receiving equal pay for equal work.  If Congress can legally oppress women by denying implied rights, what will prevent Congressional membership from further eliminating freedoms enjoyed by women?

There is a chance that I, along with the rest of the female population, will be forced back into the home to rear children and live subservient to my husband.  The only right I would retain is the right to vote.  I am aware that such a scenario is rather unlikely, but I would like you to be aware that such a scenario is not impossible.  Many feel that the Amendment is a mere redundancy as many believe that the rights explicitly granted to men are theoretically extended to women.

Religious Opposition to the Equal Rights Amendment:

"It is only in the fundamentalist religions that women are relegated to second class.  Radical Evangelicals, Muslims, and Jews all have the same view of women." - Sally Quinn

According to this site the Equal Rights Amendment would eliminate the distinction between men and women in the eyes of the law and would restrict a woman's ability to choose "traditional roles," which I assume refers to sequestering women in their homes.

The following are scenarios deemed unacceptable by the Church:

Being made subject to compulsory military service even if they were raising small children.

I found myself completely unable to understand how the exclusion of women from the draft is positive.  I also cannot understand why the Church does not support the exemption of single fathers from the draft, but supports exempting women raising children with the support of a spouse.

Lapses in court orders for child and spousal support payments.

The mention of child and spousal support payments implies that men are denied both on the basis of gender and that this should be accepted just as it should be accepted that women are granted these payments regardless of the situation.

Weakening of sexual assault prosecutions.

Personally, I believe that the Equal Rights Amendment would strengthen sexual assault prosecutions not only for women, but also for men.  While the general public is more than ready to support a female victim of sexual assault, the injuries suffered by male victims are often belittled by society and dismissed entirely.

Loss of existing spousal benefits such as medical insurance.

If spousal benefits are currently provided to men, what proof is there that women would lose existing benefits?  Would the Equal Rights Amendment completely eliminate spousal benefits?  As far as I can tell, spousal benefits would not be even remotely threatened by the ratification of the Amendment.

Changes to the tax system that might make it more difficult financially for people to live as married couples.

I have yet to understand what changes to the tax system the article is referring to as no specific information was presented to support such an assumption.  What changes does the article refer to and how would these changes increase the financial burden placed on married couples?

The article continues on to address whether or not the Equal Rights Amendment would not prevent societal prejudice:

The ERA does not automatically guarantee equal rights…the ERA would not affect many inequities that result from attitudes and customs. It would prohibit only governmental discrimination.

I actually partially agree with the sentiment that the elimination of political discrimination would not eliminate societal discrimination.  I do, however, have to disagree with the assertion that the purpose of the Amendment is to eliminate public prejudice against a particular group of people.  The Amendment does not seek to eradicate sexism in society as the government cannot regulate the private opinions of citizens.  Perhaps this would be a legitimate concern if the Amendment required that sexist members of the population have their citizenship revoked before being banished from American soil.

Imagined Effects of Equal Rights:

Phyllis Schlafly wrote an opinion piece published in the Los Angeles Times that argues against the Equal Rights Amendment.  She implies that Congress would never have passed the proposed amendment had Rush Limbaugh and Fox News been around to tag team the Amendment to death.  I can appreciate that some consider Fox News to be as fair and balanced as their motto states, but I cannot seriously consider Rush Limbaugh to be a positive influence on anything, especially something as important as increasing awareness for anything remotely related to politics.

She claims that the Equal Rights Amendment would lead to the loss of a number of rights currently enjoyed exclusively by women.  These include exclusion from the draft, enjoying social security benefits allotted due to spousal contributions, and the assumption that men should provide for women.

Schlafly regales her readers with a story about the International Women's Year and how it supported abortions and the homosexual agenda.  She states that in 1977, an unnamed reporter asked the unnamed governor of Missouri if he supported the Equal Rights Amendment.

"I was for equal pay for equal work, but after those women went down to Houston and got tangled up with the abortionists and the lesbians, I can tell you ERA will never pass in the Show-Me State." - Supposedly Joseph P. Teasdale

It is apparent to me that the quote was meant to woo readers into believing in the opposition of the Equal Rights Amendment, but it only strengthens my support for the Amendment.  I sincerely hope that Schlafly's timeline is accurate as I was unable to find evidence proving the quote's existence outside of the article and found former Missouri Governor Teasdale based on the timeline she provided.

I find it amusing that Schlafly suggest that women should be completely satisfied with gender appropriate roles as wives and mothers when she obviously felt unfulfilled in those roles as she has spent a majority of her time outside of the home since the early 1960s. 

Instances in which Schlafly has proved to be a hypocritical and liberated woman:

1. Founder and president of Eagle Forum and Eagle Forum Education & Legal Defense Fund.
2. Author or editor of 20 books about families, feminism, nuclear strategy, education, child care, the judiciary, and foreign policy.
3. Writer of a monthly newsletter entitled The Phyllis Schlafly Report since 1967.
4. Writer of nearly 2,300 weekly columns since 1976.
5. Radio commentator of approximately 7,800 daily commentaries since 1983.
6. Host of the radio talk show "Eagle Forum Live" since 1989.
7. Weekly television commentator for CBS in the mid 1970s and for CNN in the early 1980s.
8. Writer and producer of a number of documentaries.
9. Attorney permitted to practice law in Illinois, Missouri, the District of Columbia, and the United State Supreme Court.
10. Testifier before Congress and State Legislative committees on a minimum of 50 different occasions.
11. Graduate of Washington University in 1944.
12. Graduate of Harvard University in 1945.
13. Graduate of Washington University Law School in 1978.
14. Leader of the pro-family movement called Stop ERA.
15. Delegate to eight Republican National Conventions.
16. Congressional candidate for Illinois in 1952 and 1970.

I suppose that there is a possibility that Schlefly has a deep yearning to live subservient to her family, but has chosen to sacrifice her own happiness to ensure that women all across America can pursue their one true passion in life: sammich making.