Today, Nevada became the 36th state to ratify the Equal Rights Amendment (ERA), a federal Constitutional amendment that would prohibit sex discrimination and guarantee equal rights for women and girls.
Nevada is the first state since 1982 to ratify the ERA. The formalities of the Nevada ratification procedure will successfully conclude on Wednesday, March 22nd, the 45th anniversary of when the U.S. Senate approved the ERA and forwarded it to the states for ratification in 1972. As Senator Pat Spearman, the chief sponsor in the ERA in the Nevada Senate, said, “It is never too late to bring equality to all. Never.”
“The dream of women’s Constitutional equality lives. At last the ERA is moving forward again,” said Eleanor Smeal, president of the Feminist Majority Foundation who has worked for the passage of the ERA for over 45 years. “We congratulate the feminists of Nevada who worked so hard to pass the ERA, especially the coordinator of the campaign, Janette Dean.”
Some Republican members of the Nevada State Senate argued that the amendment to the Constitution would be merely symbolic, given that, they say, there have been other amendments, like the 14th amendment, to ensure equal rights for women. But before he died, Justice Scalia, who believed in an originalist interpretation of the Constitution, made clear that he did not believe women had any protections under the 14th amendment.
In reality, the ERA is far from symbolic; it will help women in cases of discrimination in education, employment, wages, insurance benefits, scholarships, military service, social security, violence against women, and so much more. Without the passage of the ERA, women have been forced to try to gain equality law by law. If the ERA was ratified by 38 states and became the law of the land, there would be a Constitutional provision against the Supreme Court, Congress or state legislatures gutting equality on the basis of sex.
For an originalist like Neil Gorsuch, whose hearing to become a Supreme Court Justice began on Monday, the ERA would mean he could no longer deny that banning sex discrimination is part of the Constitution. Women and girls would at last have a bedrock principle of equality in the highest law of the land that no one could deny, and that would benefit all people and families.
For example, Title IX, which prohibits sex discrimination in federally funded educational programs, could not be gutted as it was by the Supreme Court in 1984, requiring the feminist movement to restore it through subsequent legislation. The ERA would give far more weight in court to claims of sex discrimination in employment under Title VII, which was gutted by the Roberts Court and had to be restored by President Obama’s signing of the Lilly Ledbetter Fair Pay Act. In other words, because of the lack of an ERA, the women’s movement has frequently had to go two steps forward and one step back.
The ERA passed both houses of Congress in 1972 and, like every proposed amendment to the U.S. Constitution, was sent to the states for ratification. Thirty-eight states must ratify an amendment before it can take effect. When it passed the ERA, however, Congress imposed a seven-year deadline on the ratification process. Soon after, women’s rights activists demanded more time to win ratification from the states.
Many Constitutional scholars believe that because the time-limit is in the pre-amble of the amendment, and therefore not voted on by the states, it is subject to extension by a vote in Congress. Thousands demonstrated in Washington in 1978, and Congress granted an extension until June 30, 1982. Ultimately, however, the ERA was ratified by 35 states, 3 states short of 38. Nevada was one of the states not to pass it.
The efforts to ratify the ERA are part of a grassroots three-state campaign strategy that rejects the time-limit on the fight for equality. Recently, there has been a revived movement to continue the fight for the ERA. In October, the Durham City Council unanimously passed a resolution calling on the North Carolina state legislature to ratify the ERA. In addition to Nevada and North Carolina, the 13 other states that failed to ratify the ERA are Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, Oklahoma, South Carolina, Utah and Virginia.
Media Resources: Las Vegas Review Journal 3/20/17; Feminist Majority Foundation 2/1/17; 3/3/17