This month, the one that comes in like a lion and goes out like a lamb, Americans celebrate women’s history. The theme in 2021 — “Valiant Women Refusing to be Silenced” — is a continuation of last year’s COVID-postponed centennial celebrations of the 1920 ratification of the women’s suffrage amendment. Throughout the month we can expect talking heads to ask their guests, as they did about Black heroes last month, what woman has influenced their lives. (No fair naming mothers, whose moment comes in May on Mother’s Day Sunday.)
Promoted by Maryland’s own Congresswoman Barbara Mikulski, Women’s History Month was officially designated as such by President Jimmy Carter in 1980. Ever since, it has brought welcomed attention to both women’s issues and the often forgotten women who fought for equality and refused to be silenced. Still, if you need a promotional month, you aren’t equal.
There awaits in Congress an opportunity to truly celebrate a major step on the long and tortuous path to women’s equality by certifying the Equal Rights Amendment (ERA) as the 28th amendment to the U.S. Constitution. Like the suffrage amendment, the ERA was buried in congressional committees for years after its first presentation to Congress in 1921. Written by the indomitable suffragist-turned-equal-rights advocate Alice Paul, its main article reads “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” In 1972, after a burst of interest in civil rights and the work of many valiant women refusing to be silenced, the ERA received the necessary two-thirds vote in Congress. Campaigning then began for the required approval of 38 (three-quarters) of the states. Thirty states had ratified within two years and another five by the deadline imposed by Congress of seven years. And then the movement stalled, three states short of the requirement.
Right-wing forces led by Phyllis Schlafly, along with economic interests such as insurance companies, had initiated an anti-ERA campaign based on contradictory lines of thinking.
The first claimed that the ERA would lead to unisex bathrooms, require women to serve in combat, eliminate protections for women in the workplace and at home, and lead to more abortions. In effect, it would overturn American civilization.
The second set of arguments claimed that the ERA was not needed because women were already protected by the equal protection clause of the 14th Amendment and Title 7 of the Civil Rights Act (women were famously included in the latter piece of legislation in an unsuccessful effort to torpedo the act overall). Over 20 states, including Maryland, already have equal rights provisions in their state constitutions, this thinking goes. So why clutter up the U.S. Constitution with an unneeded amendment?
For various reasons these supposed protections have had only a limited effect on the stubborn discriminations against women, however. A case in point: As late as last year Baltimore’s Enoch Pratt Library was paying lower wages for similar work to female library supervisors than a male supervisor. The ERA would provide tangible changes in the relationship of women to the law. Presently sex is not subject to judicial strict scrutiny nor is it an inherently suspect legal category like race or ethnicity. The ERA would create a proper federal foundation to end various forms of discrimination. Additionally, it would serve as a powerful symbol of our national commitment to sex equality.
There is now an opportunity to certify the ERA. Thirty-eight states have now approved the amendment; the last, Virginia, did so in January 2020. But the amendment still faces two hurdles.
One, Congress had established deadlines for the ratification of the ERA that have expired, and much of the opposition to the ERA focuses on procedural grounds. As several senators, including Maryland’s Ben Cardin, have pointed out, what Congress has established, it can remove.
Secondly, four state legislatures have rescinded their vote for the ERA, a clearly unconstitutional effort that would open the serious amendment process to continual partisan pandering. By a simple majority, Congress can support the Cardin-Murkowski-Speier resolution rescinding the time deadlines and certifying the ERA as the 28th Amendment to the Constitution.
As Justice Ruth Bader Ginsburg once explained, “I would like my granddaughters when they pick up the U.S. Constitution to see that … women and men are persons of equal stature. I’d like them to see that that is a basic principle of our society.”
Jean H. Baker (email@example.com) is professor emerita at Goucher College.