What a failed Equal Rights Amendment reveals about US politics

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In 1848, the Seneca Falls Convention launched a national campaign for women’s rights in the United States of America. Sadly, two prominent abolitionists and women’s rights activists of that era, Lucretia Mott and Elizabeth Cady Stanton, would not live to see the ratification of the 19th Amendment in 1920, which in practice gave the vote to white women and some Black women (full suffrage only arriving decades later). But even if they had been resurrected, say, today? Mott and Stanton would still be waiting to see a broader entrenchment of women’s rights in US law.

On the surface, this failure is in latest part due to Senate Republicans, who on Thursday, April 27 blocked a measure that would have allowed the Equal Rights Amendment (ERA) to be added to the Constitution as its 28th Amendment. The Senate needed 60 votes to remove a seven-year deadline on ratification for the ERA, which received its 38th state legislature endorsement from Virginia in 2020. It had 51 votes, including from two Republicans: Lisa Murkowski of Alaska and Susan Collins of Maine. All other Republicans voted against it.

The United States Conference of Catholic Bishops was also openly opposed to the ERA. On February 27, they distributed a letter, signed by two bishops and two archbishops, asking senators to vote against its passage. In it, they explained that the ERA would lead to federal funding requirements for abortion, limit federal and state efforts to ban abortion, deny “conscience-related exemptions”, and preclude faith-based denials of sexual orientation and gender identity, such that religious institutions refusing to so much as refer people to services they objected to out of belief would be unable to compete equally for state funding.

This blocking of the ERA emerges within another altogether grim week for US democracy. Texas Senate advanced a bill calling for the prominent display of the Ten Commandments in state classrooms, and is pursuing other bills to deepen religion’s presence in public education. Montana Republicans barred openly transgender representative Zooey Zephyr from the House for opposing an anti-trans bill with the words “I hope the next time there’s an invocation, when you bow your heads in prayer, you see the blood on your hands”. Kansas Republicans overrode a veto to reinstate an extreme anti-trans bathroom bill.

But the ERA’s latest failure also stands apart from these other crises, because its complex history shows just how far the US has shifted from traditional sites of political debate, into a discourse shaped centrally by Christian nationalism. It did not have to be this way.

This is a sharp turn from the complex intersection of labor and gender politics that informed almost a century of congressional argument around the ERA.

A foundation in labor rights

After the passage of the 19th Amendment, members of the National Women’s Party, the Women’s Peace Party, and the American Civil Liberties Union set to work trying to pass a constitutional amendment that would entrench women’s equality beyond the sphere of voting rights. In 1920, the National Women’s Party announced a draft that would become the first version of a possible Equal Rights Amendment, ostensibly to be presented to Congress on October 1, 1921. This didn’t happen. Instead, it would take until 1923 for a form revised by Alice Paul, and named in honor of the late Lucretia Mott, to be presented to Congress by Republican Senator Charles Curtis of Kansas and Republican Representative Daniel Read Anthony Jr. (nephew of Susan B. Anthony). It read:

Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.

Congress shall have power to enforce this article by appropriate legislation.

But at the time, opposition to this amendment was fierce, and came from many sources. Some of the strongest opponents of the ERA were other women, due to the complexity of preceding legislative protections. After all, many women worked, and had fought as a distinct working demographic for their own labor rights. This meant they already had some protections in place that would be lost if the ERA were passed in its current form.

Was there an opportunity here for intersectional solidarity? Yes and no.

In the most ideal circumstance, women’s rights advocates would have fought to extend their labor wins to men, so that they weren’t at risk of losing any pre-existing protections while gaining broader equality under the law. And some women’s labor advocates attempted just that, by arguing that women wouldn’t need a sex-based amendment if labor conditions across the board were improved for everyone instead.

Ultimately, though, there was deep concern that labor rights would dilute the broader matter of sex-based rights, and open the amendment to far more backlash from industry, which would not take kindly to a measure that reduced its ability to exploit its workforce.

Many women’s rights advocates were also firmly of the opinion that the more important struggle was for the broader statement of equality, to protect against oppression outside the workplace, too. Even if such an amendment cost women some of their existing labor wins, the argument went that it would also pave the way for more and better wins later on.

And so, amid such heated early debate, the ERA floundered. In the 1940s, Alice Paul revised the language again, in keeping with holistic ideas about the amendment in relation to the rest of the Constitution. These changes didn’t fix the protests from labor, though, so in the 1950s a version was proposed that tried to protect pre-existing labor rights and related legislative wins. The “Hayden rider” didn’t make it out of the House either.

Still, the ERA retained strong advocates. Up until 1980, the Republican Party included the ERA in its platform and talking points, while pro-labor advocates, often Democratic, routinely opposed it. Opposition to the ERA included the American Labor Union, other Democratic pro-labor movements, and Eleanor Roosevelt—and all for reasons related to the protection of workers’ rights: sometimes the women’s, and sometimes the men’s. Roosevelt in particular was opposed to legislation that seemed to serve just one class of women, and only tempered her position after the rise of more robust unions, which she hoped would mitigate any damage done by the ERA to more marginalized demographics.

The rise of intersectional civil rights

With the Civil Rights Act of 1964, though, momentum was starting to grow again for anti-discrimination legislation. Coretta Scott King and Alice Paul were among the lobbyists responsible for ensuring that workplace discrimination on the basis of sex was named explicitly in the CRA, and from there the movement snowballed. Betty Friedan, Pauli Murray, and dozens of fellow activists formed the National Organization for Women (NOW), which still drove Democrats away by pushing for the passage of an ERA.

Nevertheless, the first Black woman elected to Congress, New York Representative Shirley Chisholm, made her famous “Equal Rights for Women” speech on May 21, 1969.

As in the field of equal rights for Blacks, Spanish-Americans, the Indians, and other groups, laws will not change such deep-seated problems overnight. But they can be used to provide protection for those who are most abused, and to begin the process of evolutionary change by compelling the insensitive majority to reexamine its unconscious attitudes.

It is for this reason that I wish to introduce today a proposal that has been before every Congress for the last 40 years and that sooner or later must become part of the basic law of the land—the equal rights amendment.

Let me note and try to refute two of the commonest arguments that are offered against this amendment. One is that women are already protected under the law and do not need legislation. Existing laws are not adequate to secure equal rights for women. Sufficient proof of this is the concentration of women in lower paying, menial, unrewarding jobs and their incredible scarcity in the upper level jobs. If women are already equal, why is it such an event whenever one happens to be elected to Congress?

… Regarding special protection for working women, I cannot understand why it should be needed. Women need no protection that men do not need. What we need are laws to protect working people, to guarantee them fair pay, safe working conditions, protection against sickness and layoffs, and provision for dignified, comfortable retirement. Men and women need these things equally. That one sex needs protection more than the other is a male supremacist myth as ridiculous and unworthy of respect as the white supremacist myths that society is trying to cure itself of at this time.

In May of the following year, opposition from labor was still as strong as ever. As Andrew J. Biemiller, of the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), argued before a congressional subcommittee:

The Equal Rights Amendment, on the other hand, permits of no negotiation or compromise, no matter what the circumstances. It would simply become unconstitutional for any law to distinguish in its application between men and women. It makes no guarantee of extension of labor law protections to men. Enemies of labor legislation, powered by a combination of middle-class feminists and employers, could speedily wipe out all forms of protections afforded specifically to women, whether “restrictive” or not – minimum wage laws, rest periods, meal periods, seating requirements, transportation at night, and other provisions.

AFL-CIO Artifacts Collection, University of Maryland Libraries

But labor would come to support the ERA amid national protests involving tens of thousands of women, and on August 10, 1970 a Democrat, Michigan Representative Martha Griffiths, successfully brought a joint resolution to the House floor, after which it passed to Senate and… died, mainly over an attempt to include military draft exemptions. The next year, though, it passed the House in October 1971, and Senate on March 22, 1972, before receiving President Richard Nixon’s endorsement ahead of his re-election campaign.

Then the race for three-quarters ratification across state legislatures began. The ERA had seven years to pass in 38 states. By March 22, 1979, amendment politics had become really weird in the US: at best, 35 states had ratified the ERA, but five had also passed legislation that seemed to un-ratify the ERA, raising the question of whether or not a constitutional ratification could be rescinded, and whether its rescinding mattered to the original test.

What followed was a decades-long legal fight to extend the ratification deadline, and to contest the rescinding of state ratifications. The judicial components of this scramble intensified in the last few years, with a flurry of legal maneuvers to keep the ERA alive and to count Virginia’s ratification as the final hurdle before full acceptance of this amendment.

To be clear, though: this was always a bit of a stretch. Even the late Supreme Court Justice Ruth Bader Ginsberg was of the opinion that the ERA’s ratification period had plainly expired, and that the struggle would have to begin anew. Though she was in favor of a more equitable constitution, she saw no coherent legal pathway to respecting the rights of states now in favor of the amendment without also honoring the rights of states now opposed to it.

The hard swing to far right politics

Which brings us back to the latest political circus: a Republican voting block strongly opposed to the ERA for reasons related to religiously informed fears about its potential impact on abortion, sexual orientation, and gender identity discourse.

This is a sharp turn from the complex intersection of labor and gender politics that informed almost a century of congressional argument around the ERA.

One can argue that, in the past, many were only ever for the ERA for cynical reasons: some, to strip female workers of pre-existing labor exceptions. Others, out of a self-serving feminism only interested in protecting certain classes and colors of womens’ rights.

Likewise, arguments against the ERA varied from fears that men would lose power in the workforce as in their marriages, to fears that any ERA absent robust labor rights protections would never actually help the most marginalized in society.

These are intricate issues, which attest to a longstanding US struggle to create a tide of change that would truly lift all boats along the way.

What this latest killing of the ERA suggests, though, is that there is less room than ever for such vital conversation in US politics. Rather, the needle has been moved so much by religiously informed trans panic, queer panic, and the push to undo over 50 years of secularized women’s healthcare, that even amid massive workforce shortages, labor rights rollbacks, looming recession, and environmental crises… the ERA, a gender rights document that since its founding has been tied up in workers’ rights issues too, has been reduced to yet another staging ground for an escalating Christian-nationalist culture war.

What will it take to return this constitutional debate, at bare minimum, to the socioeconomic terrain on which it was waged before?