The ERA Debate Reignited: Fact, Fiction, and the Fight to Stop It – Again
The following was contributed by Alexis Tarkalson.
Cover image: Activist Phyllis Schafly wearing a “Stop ERA” badge, via Wikimedia Commons.
Former President Joe Biden decided to go out with a bang when he posted to X, “The 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex.” The “28th Amendment” he incorrectly refers to is the Equal Rights Amendment (ERA), the amendment that never was. Kamala Harris, having nothing to lose, was quick to follow on the coattails of that brazen statement with:
The Equal Rights Amendment is the 28th Amendment, and it is the law of the land. pic.twitter.com/jl1Ewg2JAf
— Vice President Kamala Harris (@VP46Archive) January 17, 2025
The hard fast fact of the matter is this: the Equal Rights Amendment died in 1982 and Biden cannot revive its corpse by merely manifesting his hopes in a post on X.
The legal speculation regarding the amendment’s viability has been and still is discussed at great lengths, with proponents and opponents alike vehemently convicted in their stance.
Let’s dive into the ERA’s history, why it is a dangerous amendment for all involved, take a look at the legal arguments for and against its resurgence, and how we can stay alert against its imminent threats.
The beginnings of an ERA
After women were given the right to vote in 1920, suffragists like Alice Paul and Crystal Eastman began to craft the Equal Rights Amendment. When she introduced the amendment in Seneca Falls in 1923, Alice Paul said, “We shall not be safe until the principle of equal rights is written into the framework of our government.”
The original text for the ERA was later changed in 1943 by Alice Paul to what it still remains today, which is this:
- 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 amendment shall take effect two years after the date of ratification.
Not all first-wave feminists were on board at the time of the debut for the ERA, in fact, many were not.
One of the first women to be admitted to the Bar Association of New York City, chair of the New York League of Women Voters’ municipal affairs committee, representative for the United States on the Committee on Nationality of Married Women of the International Alliance of Women for Suffrage and Equal Citizenship, was Dorothy Straus.
A staunch believer in women’s advancement in society, she considered herself a protector of their rights. But even she did not see the vision for the ERA and said that the ERA, “would either make the wife responsible for her husband’s needs or the husband not responsible for anything at all.” Additionally, Straus said, “It is amazing how the measure [ERA] seems to have recovered from the various doses of anaesthetic that it has from time to time been given.” Her wish? “What I should like to do is to kill it once and for all.” She would go on to give a testimony before the Senate Judiciary in 1938 as to why the ERA should not be advanced.
The second-wave feminist’s rise and fall
From 1923 to 1970, the ERA was introduced into every single Congress but made no headway until 1972 where it passed both the House and the Senate. As Article V in the constitution reads, for a proposed amendment to make its home on the pages of the constitution, said amendment must pass both Houses of Congress with a two thirds majority and three fourths of the states (38) must ratify it.
Well, the ERA had no issue with the first criteria, but the second is where it met its match. At first, the way ahead seemed to be smooth waters. The very same day that the Senate passed the ERA, Hawaii ratified it. Within one month another thirteen states had done the same. By 1973, thirty states had given the proposed amendment the green light. And by 1977, 35 of the necessary 38 had ratified it. A deadline of seven years had initially been tacked onto the proposed amendment, but its ratification seemed such a sure thing that no one worried. Things were looking up for the ERA proponents.
That is, until the wives and mothers of the U.S. decided to band together under the primary direction of stalwart Phyllis Schlafly. She created a coalition never quite before seen by uniting different faiths in her crusade to defeat the ERA. Gathering Mormons, Jews, Catholics, and Evangelicals through religiously-inclusive language, she built an alliance that would be hard to stop. What was their unifying creed? To stop ERA, which they saw as a threat to their roles as mothers and wives. (Their organization was in fact titled, STOP ERA, the ‘STOP’ standing for Stop Taking Our Privileges.)
Phyllis Schlafly and the STOP ERA organization persevered. Through their ten-year stand against the Equal Rights Amendment, they were able to convince the remaining states not to ratify the ERA (in fact, five states even attempted to rescind their ratification). Proponents for the ERA scrambled for more time and were able to convince Congress to extend the deadline by three years, to 1982.
It wouldn’t matter. The deadline came and went with only 35 states having ratified the ERA, making it a failed initiative.
Sex-blindness is anti-woman
On its face, the ERA sounds harmless enough. Supporters of it say by integrating “gender equality” into the very tapestry of this country’s founding document, feminists can ensure that their “rights” will not be taken from them.
Jennifer Weiss-Wolf, feminist and activist for “menstrual equity,” said that the ERA would have the power to, “enforce gender equity through legislation and, more generally, the creation of a social framework to formally acknowledge systemic biases that permeate and often limit women’s daily experiences.”
One article explained the importance of the ERA by saying, “It would prohibit discrimination “on account of sex,” including discrimination against people of all genders. By giving Congress the power to enforce, by appropriate legislation, the amendment’s provisions, the ERA would empower the legislative branch to strengthen legal protections against sex discrimination in areas including gender-based violence, education, the workplace, and access to reproductive health care.”
But what is the reality?
The reality is that by making our country blind to sex, they must also inadvertently make it blind to sex inequalities, as professor of law Kim Forde-Mazru points out. He states, “The ERA would likely endanger women’s equality. The reason is that the ERA would likely prohibit government from acting “on account of sex” and, therefore, from acting on account of or in response to sex inequality. Put simply, government would have to ignore sex, including sex inequality.”
It would make it unconstitutional to recognize any differences between men and women. Sex-blindness would strip what protections women do have in the name of equality. Phyllis Schlafly’s predominant accusations against ERA were that it would encourage government-funded abortions, relieve husbands of any obligations towards their wives, open the door for same-sex marriages, and force women into the military draft.
Pamphlet from Women’s March. Gerald R. Ford Presidential Library
In her debate with Betty Friedan on Good Morning America in 1976, Schlafly makes the argument that women have the burden of bearing and caring for babies. Therefore men need to be burdened with the responsibility of caring for the woman and the baby, that way there is equal burden. The ERA would take away the man’s burden by eradicating alimony and any responsibility towards his wife and child. But nothing can take away the woman’s burden, making the ERA in actuality discriminatory towards the woman.
Now you may say that although she killed the ERA, Schlafly by no means was able to stop same-sex marriages, legal abortions, and no-fault divorce. This is true, but because the ERA was not ratified, none of these things are permanent.
By ratifying the ERA, we would make sex classification a suspect class, thereby opening it to the level of strict scrutiny. Sex classification is currently at the level of intermediate scrutiny, meaning that discrimination in favor of women can be allowed. But catapulting sex classification to the category of strict scrutiny means that it would be no longer possible for any discrimination.
For example, sex-separated bathrooms, sex-separated sports, and single-sex schools, would ultimately become illegal under the ERA. What else could be barred? Things like women’s shelters, being able to request a same-sex health provider during an intimate exam, or single-sex prison-housing.
The Women’s Liberation Front (WoLF), a radical feminist group that is a bold advocate against the implementation of the ERA, writes, “Supported by massive resources from special interest groups, lawmakers and judges have been—for several years now—gutting women’s rights. They are not doing this by reversing or overturning laws that guarantee equality between men and women, but by changing the very definition of sex so that the law no longer recognizes the differences between men and women.”
Transgender state legislator Danica Roem helped to pass the ERA in Virginia and wrote in an article, “The word ‘women’ is conspicuously absent from the ERA, which instead forbids discrimination on the basis of ‘sex’… And yes, ERA advocates do want the amendment to apply to everyone: trans women and non-binary people included…Equal means equal. Period.”
Where true sex discrimination exists is a domain that no governmental amendment can touch. Frieda Miller said in 1944 after she was named director for the United States Women’s Bureau,
“I am against the Amendment and have always worked against it. There are discriminations that are based upon custom and tradition and not upon laws. The Equal Rights Amendment will not have the slightest effect upon them. No amendment can make an employer hire a woman for a job if he wants a man. Neither will it bring to a woman lawyer a single client who is convinced that only a male attorney is competent. When the people of America realize that this most important of all discriminations against women is not even touched by the proposed Amendment, they will be more disposed to lend their energies to the job of educating the employers of America that women are as capable as men in holding down most jobs in industry and the profession.”
Is it really dead?
Because Nevada in 2017, Illinois in 2018, and finally Virginia in 2020 decided to ratify the ERA, old proponents have surged back with a deadly optimism that the ERA can and will be revived. This and our former president’s tendency to vocalize his fantasies publicly has brought back the debate of whether or not the ERA can still be ratified and become the 28th amendment of the constitution.
To satisfy the question of its validity, one must answer three questions: First, can Congress impose a deadline on proposed amendments if permission was never given in the constitution? Second, can the lapsed deadline be waived after 42 years? And third, would the five states who attempted to rescind their ratification be considered valid?
The Justice Department’s Office of Legal Counsel (OLC) released an opinion in 2020 wherein they answered these questions.
As to the first question: yes, Congress can place deadlines on potential amendments. The first time this was done was with the Prohibitionist amendment wherein Congress voted to impose a deadline. The seven amendments preceding the ERA’s proposal all had a time limit placed on them of seven years. In the supreme court case Dillon V. Goss it was ruled, “Of the power of Congress, keeping within reasonable limits, to fix a definite period for the ratification we entertain no doubt.”
At the time the ERA was being discussed, the leading sponsor for it, Representative Griffiths said that the deadline was a good way to make sure that the resolution, “should not be hanging over our head forever.”
As to the second question: the OLC ruled a resounding “no” to this question. Proponents try to point to the Madison Amendment (the 27th amendment) that was picked up in 1992 after being proposed 203 years earlier. The difference here is that the ERA had a deadline (a deadline that was even extended unprecedentedly) and the Madison Amendment never did. What is the purpose of a deadline if no one is going to heed it?
And finally, for the third question: the OLC ruled that since the ERA died in 1982, there would be no point in discussing the validity of a withdrawn ratification.
So, in conclusion, yes, the 1972 ERA is truly dead.
The Phyllis Schlafly Effect
Ruth Bader Ginsburg, a strong and devoted proponent of the Equal Rights Amendment while she was alive, said after its defeat, “[T]he ERA fell three States short of ratification. I hope someday it will be put back in the political hopper, starting over again, collecting the necessary number of States to ratify it.”
There are rumblings of starting the ERA from scratch. Representative Schroeder who was attempting this very thing stated that the new proposal would be like, “the phoenix rising from the ashes”.
So what can we do?
The life of Phyllis Schlafly is incredible, and her work in the pro-life and pro-family movement is unparalleled. It was her movement that stopped the ERA from happening, and by learning from her strategies we can do so once again. Even left-leaning news outlets are forced to acknowledge her prowess and Vox released an article wherein they said, “Whatever one thinks of the issues for which she fought, her 70 years of activism are an essential model for political activists of every stripe.”
The Washington Times released an entire tribute to her after her death with admirer after admirer singing her praises. One in particular wrote, regarding her bout with the ERA:
“The feminists and their supporters were ready to celebrate their approaching victory when Phyllis rose to the challenge. She was up against truly formidable opposition in two U.S. Presidents and their First Ladies, sizable majorities in both the House and the Senate, the federal judiciary, the liberal news media, the entertainment industry and the rest of the governing elite. It was no contest.”
Phyllis Schlafly’s strategies included:
- Organized grassroots of women in various states to be proactive regarding their distaste for ERA, including forming her own organization (Eagle Forum)
- Utilized the already formed groups of women in any churches of any religion
- Wrote news articles, books, and pamphlets
- Started her own newsletter to discredit the ERA
- Utilized the media to its full potential. Every week she was doing radio commentary and interviews and she engaged in dozens of TV appearances
- Her followers would deliver baked goods to state congressmen, along with a humorous note (see page 2).
It appears the ERA might be coming around for another run at ratification and we must unite in our efforts to stop it. Educate yourself about the ERA, find out what’s going on in your state involving “women’s rights,” and/or get involved in a national effort. (Time or money are both helpful.)
Because Phyllis Schafley says it best:
“American women are the most fortunate class of people who ever lived on the face of the earth. We should rejoice in the great, wonderful country we have. Women have always been in the Constitution. There is no sexist word in the Constitution. It is written for We, the people and every word in it is sex-neutral, like person, citizen, elector, and Senator. I don’t know what they’re complaining about. You can do whatever you want.”
The post The ERA Debate Reignited: Fact, Fiction, and the Fight to Stop It – Again first appeared on Meridian Magazine.
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