True or false: The U.S. Constitution explicitly guarantees the rights of all it protects regardless of sex. The correct answer would be false. Other than the 19th Amendment giving women the right to vote, the Constitution does not specifically prohibit discrimination by gender. It is only relatively contemporary interpretations of the 14 Amendment’s equal protection clause — as well as various statutes and regulations — that have essentially banned sex discrimination at the federal level — but such provisions can be overturned by lawmakers or reinterpreted by future courts. They are not the same as an explicit guarantee written into the Constitution.
That’s a major reason why the Equal Rights Amendment approved by Congress in 1972 has re-emerged in the Trump and #MeToo era. Women’s rights are under assault from a variety of quarters. What better antidote than the ERA revival, which was made possible, in part, by Maryland’s own Sen. Ben Cardin, who last year introduced legislation in Congress to remove the 10-year ratification deadline from the ERA. There is certainly precedent for the move — the 27th Amendment (the one prohibiting members of Congress from giving themselves a raise without an intervening election) was belatedly ratified in 1992, which was 190 years after the first states supported it.
On Wednesday, Illinois became the 37th state to ratify the Equal Rights Amendment, which means only one more state is required to hit the three-quarters mark. Maryland is one of the 37 — lawmakers having signed off within weeks of its overwhelming passage in Congress. But our neighbor to the south, Virginia, would seem to be a strong candidate for the magic 38th. While the state legislature is Republican-controlled, Virginia is not the Red State it once was. The measure essentially died in committee in February, but next year may be different — the Virginia Senate has passed it five times over the past seven years.
The failure of the ERA to be ratified many years ago is one of the more shameful episodes of what might best be described as the feminist backlash. Opponents falsely made the argument that the ERA would have all sorts of negative repercussions from forcing women to be drafted to legalizing same-sex marriage and increasing abortions. What it actually does is guarantee that the equality of rights under the law shall not be “denied or abridged” by the United States or any state on account of sex. Most states have some form of ERA written into law now. And while women’s rights have made considerable progress despite the lack of a federal ERA, ratification would protect women from seeing those rights rolled back in the future.
But there’s another reason to ratify the measure that goes beyond legal protection. We live in a time when sexual harassment has come to the fore, when society is reexamining how women are treated in the workplace, when victims of sexual assault are just now emerging to tell their stories. What a powerful statement ratification of the ERA would make at this time and place. It would be the ideal counterpoint to the election of Donald Trump who has his own history of sexual harassment and assault allegations against him (not to mention an Access Hollywood tape in which he describes grabbing women by their genitals).
Is the U.S. committed to equal rights for women in the 21st century? It’s past time to make an affirmative declaration. There simply isn’t a decent argument against equality. It doesn’t have to be Virginia, of course. There’s also Alabama, Arizona, Arkansas, Florida, Georgia, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina and Utah. But how fitting that it might happen in the Mid-Atlantic, home to so many American presidents as well as Alice Paul, the women’s rights activist from New Jersey who wrote the first draft of the ERA decades before it was passed but died in 1977 at the age of 92 without seeing the amendment ratified.
This is one political bandwagon that even President Trump would be wise to jump on board — as many in the GOP have. Polls show Americans support equal rights overwhelmingly. Supreme Court Justice Ruth Bader Ginsburg has said that if she could see any amendment added to the Constitution, it would be the ERA so that her granddaughters could see in the Constitution “that notion that women and men are persons of equal stature.” That is a sentiment that does not seem especially partisan but does seem truly American.