Common Questions
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Below are some common questions we hear often. If you have any other questions we are happy to help you.
Email us at SandyO@PassERA.org Copyright, National Equal Rights Amendment Alliance. 2019 |
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1. What does the Equal Rights Amendment say completely?
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. Many refer only to this, Section 1, as it provides the intent of the ERA. The other two refer to its implementation.
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.
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.
2. But I thought the ERA was dead, its time limit has passed.
Substantive arguments exist against a time limit being an immutable deadline that passed in 1982 for ERA to have 38 states ratifying. Just three more states may be needed to pass the Equal Rights Amendment into the U.S. Constitution, since:
a. ERA was never declared Dead.
b. Precedent-- Madison Amendment was passed after more than 203 years.
c. ERA's time limit was added only in the Proposing Clause (introductory and non-votable).
d. ERA is "viable and contemporaneous", stated by respected constitutional scholars (citation: Congressional Research Service; Held and others, William & Mary Law School)
e. Time limit in Proposing Clause was already changed once by Congress from a seven year limit to 10 years, showing flexibility of the time limit. Congress could overlook it or eliminate it per pending Federal bill to eliminate it.
f. Any time limit itself may be unconstitutional. Perhaps should never have been imposed on such an important issue affecting so large a segment of the population, American males as well as females. Rhetorically, how long should be allowed for equality--ten minutes or fifteen...?
a. ERA was never declared Dead.
b. Precedent-- Madison Amendment was passed after more than 203 years.
c. ERA's time limit was added only in the Proposing Clause (introductory and non-votable).
d. ERA is "viable and contemporaneous", stated by respected constitutional scholars (citation: Congressional Research Service; Held and others, William & Mary Law School)
e. Time limit in Proposing Clause was already changed once by Congress from a seven year limit to 10 years, showing flexibility of the time limit. Congress could overlook it or eliminate it per pending Federal bill to eliminate it.
f. Any time limit itself may be unconstitutional. Perhaps should never have been imposed on such an important issue affecting so large a segment of the population, American males as well as females. Rhetorically, how long should be allowed for equality--ten minutes or fifteen...?
3. Why is it that the ERA is now brought up again?
The Equal Rights Amendment, when passed will make sex discrimination based on one’s gender a violation of the U.S. Constitution in many cases. Without an ERA in the Constitution sex discrimination has no reliable deterrent; neither the 14th Amendment, nor laws, nor state constitutions work reliably. Other nations, created post-WWII, have been required by the U.S.A. to codify sex-equal treatment. Some noted their Gross Domestic Product/GDP grew by 9%. America's ERA is reported by respected economists now that our GDP is predicted to grow by 15%. Similar predictions are made by the European Union, the International Monetary Fund and the OECD, Sex discrimination is now rampant world-wide and in the United States. Millennials, young women, describe it as a “rape culture”. The present “War on Women” must stop.
It began with 916 nationwide ALEC-led, [ALECexposed.org] anti-woman, anti-family bills filed over just a 3-month period, and continues with more such legislation and hate speech against women and girls. Increased economic injustices that hit women harder and men now demonstrate that the time for passing the Equal Rights Amendment has come. Respected surveys show that Americans are now in favor of doing so by 94% ! as compared to 63% when 1972 U.S. Congress first passed ERA out to the state legislatures for ratification. However, the political energy was much more positive during that time. We have to work much harder now, therefore.
It began with 916 nationwide ALEC-led, [ALECexposed.org] anti-woman, anti-family bills filed over just a 3-month period, and continues with more such legislation and hate speech against women and girls. Increased economic injustices that hit women harder and men now demonstrate that the time for passing the Equal Rights Amendment has come. Respected surveys show that Americans are now in favor of doing so by 94% ! as compared to 63% when 1972 U.S. Congress first passed ERA out to the state legislatures for ratification. However, the political energy was much more positive during that time. We have to work much harder now, therefore.
4. Does ERA have to start all over again to get the 38 states to ratify?
Our legal teams tell us that it is quite plausible that just three remaining states’ ratifications can pass the Equal Rights Amendment into the U.S. Constitution--as the "3-State Strategy. That strategy eliminates the requirement that ERA legislation be re-started. One of our sister groups, the respected ERA Coalition, prefers its own "Start-Over" ERA process.
We believe that a “start-over Amendment” could take as long as 100 years or more to pass especially in this truculent political environment. It has already taken more than 90 years just for the not-yet-passed original ERA during a period of much less antipathy toward it during the 1970-82 period in the U.S.A. Of course, we and another sister organization, ERA Action. will support any avenue that leads to ERA passage into the U.S. Constitution.
Once three additional state legislatures have ratified the ERA (two more have -- only need one more state!), we anticipate that the U.S. Congress will take up the issue of whether all 38 states have been appropriately ratified, given questions of whether some state recissions are valid and if a time limit has indeed expired. If our co-authored new Federal “time limit removal” legislation has been passed, that could facilitate ERA passage by Congressional vote once the final three states ratify. It will likely be held up to the U.S. Congress to decide, as it is deemed “a political question”, and not a “judicial” one that would instead be the purview of the U.S. Supreme Court. All evidence seems to point to approval and passage of the Equal Rights Amendment, though it is not certain at present. All objections to the contrary are likewise conjecture.
We believe that a “start-over Amendment” could take as long as 100 years or more to pass especially in this truculent political environment. It has already taken more than 90 years just for the not-yet-passed original ERA during a period of much less antipathy toward it during the 1970-82 period in the U.S.A. Of course, we and another sister organization, ERA Action. will support any avenue that leads to ERA passage into the U.S. Constitution.
Once three additional state legislatures have ratified the ERA (two more have -- only need one more state!), we anticipate that the U.S. Congress will take up the issue of whether all 38 states have been appropriately ratified, given questions of whether some state recissions are valid and if a time limit has indeed expired. If our co-authored new Federal “time limit removal” legislation has been passed, that could facilitate ERA passage by Congressional vote once the final three states ratify. It will likely be held up to the U.S. Congress to decide, as it is deemed “a political question”, and not a “judicial” one that would instead be the purview of the U.S. Supreme Court. All evidence seems to point to approval and passage of the Equal Rights Amendment, though it is not certain at present. All objections to the contrary are likewise conjecture.
5. What kind of opposition could one have to the concept of Equality for both sexes?
The Catholic Church, the Southern Baptist Church, certain evangelical churches, certain men’s groups, Phyllis Schlafly, people who do not understand that the ERA would support everyone’s share of the common good, some Conservative groups, many corporations, and today’s Republican Party, do oppose firmly. For the most part, their arguments are flawed for self-serving or “political” gain.
6. What’s the basis of the opposition?
There is a pot potpurri of bases for opposition:
Over time, we have noted that in some national regions the purported bases for legislative opposition has moved from these arguments:
Having lost those arguments, the opposition switches to arguing that ERA has “unintended consequences”. Although such vague arguments are difficult to challenge, our legal teams were able to overturn this one with bold, authenticated rationales.
Lately, arguments center on ERA being dead, having exceeded the time limit (see above) or because 5 states had voted to rescind or change their ratification votes to the negative. (Article V of the U.S. Constitution makes no provision for the possibility of recission of votes); (Congressional Research Service, Thos. H. Neale reports that on July 30, 1978 Congress voted to reject any proposals of recissions); and all official tallies still include those 5 states as ratified. The opposition will probably continue to raise objections until all of them are refuted, coming soon.
- historical,
- cultural or religious traditions and edicts;
- perceived threats to male power or fears of social change;
- or fear of financial or political losses should American females gain rights to equal treatment across society.
Over time, we have noted that in some national regions the purported bases for legislative opposition has moved from these arguments:
- that ERA encourages more pregnancy terminations (actually, states that have codified ERA language in their constitutions have statistically lower numbers of such procedures);
- objections to “uni-sex” restrooms (already commonly in use in homes, airplanes, elsewhere);
- women as members of the military or drafted (U.S. Congress could vote at any time to draft women or men into military service);
- ERA would open the gates to same-sex marriage, etc. (Recent Supreme Court decision favoring that proves that ERA does not regulate such matters.)
Having lost those arguments, the opposition switches to arguing that ERA has “unintended consequences”. Although such vague arguments are difficult to challenge, our legal teams were able to overturn this one with bold, authenticated rationales.
Lately, arguments center on ERA being dead, having exceeded the time limit (see above) or because 5 states had voted to rescind or change their ratification votes to the negative. (Article V of the U.S. Constitution makes no provision for the possibility of recission of votes); (Congressional Research Service, Thos. H. Neale reports that on July 30, 1978 Congress voted to reject any proposals of recissions); and all official tallies still include those 5 states as ratified. The opposition will probably continue to raise objections until all of them are refuted, coming soon.
7. Who are our supporters in Florida, elsewhere?
Many major organizations have signed our generic ERA Resolution on this site; 300,000 individual members have joined our National Equal Rights Amendment Alliance and ERA Education, both non-profit corporations. We partner in solidarity for ERA passage with 3 other nationwide ERA organizations: Equal Means Equal; ERA Coalition; and ERA Action. The last two listed also hold nationwide teleconferences to stay updated with the huge numbers of Actions taken by others.
Seven newspapers, seven Florida counties and a legendary Board headed by former U.S. Congresswoman Pat Schroeder all champion the Cause of the ERA in our Action-oriented, grassroots, non-profit, nonpartisan, non-sexist, single-issue organization, open to all who endorse sex–equal treatment.
Seven newspapers, seven Florida counties and a legendary Board headed by former U.S. Congresswoman Pat Schroeder all champion the Cause of the ERA in our Action-oriented, grassroots, non-profit, nonpartisan, non-sexist, single-issue organization, open to all who endorse sex–equal treatment.
8. What’s happening in Florida’s legislature regarding ERA ratification?
For many years, since the National ERA Alliance was formed, ERA ratification legislation has been filed in both the Florida House and Senate every year and in several other states. Two Florida Senate committees have passed it overwhelmingly via bi-partisan votes. Every year since, the Republican chairs of the committees to which ERA has been assigned in the Florida House has refused to hold a vote on ERA ratification. So it stalls in Florida until the next Legislative session next year.
2019 session was the 19th year we’ve gotten ERA filed in both houses, so we are redoubling efforts in the Florida House and Senate committees. WE PERSIST... and THAT does Work.
2019 session was the 19th year we’ve gotten ERA filed in both houses, so we are redoubling efforts in the Florida House and Senate committees. WE PERSIST... and THAT does Work.
9. What’s happening with the ERA movement in the 6 other states in play right now?
The other states besides Florida that file ratification legislation are often
The other named state legislatures have not just let ERA ratification die in committee they have killed the bills by raising false issues that seem neo-medieval to some. We hope anyone from any of these states reads this and is drawn to connect or is just plain curious, she or he can communicate with their state ERA leaders via Googling State of XX Legislators . It’s most effective to phone for a local office appointment with your state House /Assembly member when your state legislators are NOT in Session at their state capitol, which is very busy. Email us for handouts to leave there and our Hot Tips to say, claimed to be “brilliant”.
- Arkansas,
- Arizona,
- Georgia,
- Louisiana,
- Missouri,
- Utah, and
- Virginia -- which has come closest to ratification as the Senate bill passes, yet the Assembly (similar to any state’s House) refuses to address the issue.
The other named state legislatures have not just let ERA ratification die in committee they have killed the bills by raising false issues that seem neo-medieval to some. We hope anyone from any of these states reads this and is drawn to connect or is just plain curious, she or he can communicate with their state ERA leaders via Googling State of XX Legislators . It’s most effective to phone for a local office appointment with your state House /Assembly member when your state legislators are NOT in Session at their state capitol, which is very busy. Email us for handouts to leave there and our Hot Tips to say, claimed to be “brilliant”.
10. What’s happening in Washington with the ERA?
In 2009, ERA leaders in 4 states including Florida became aware that the original ERA time limit for ratifying the required 38 states that is located in the introductory or Proposing Clause was being used as a last-ditch stand against ratification by the political opposition. Substantive arguments against that do exist, so four of us co-authored legislation before the U.S. House and Senate that proposes removal of the time-limit phrase from that non-votable Clause. IT HAS NOW BEEN HEARD ON APRIL 30, 2019 BEFORE THE U.S. HOUSE JUDICIARY AND WARMLY RECEIVED AFTER 36 YEARS OF NO ERA HEARINGS THERE WHATSOEVER
11. What can people do who want to help move the ERA?…right now….and later…
Warmly welcome them to this site—we ask that you, too, familiarize yourself with the information there. Please publicize the Equal Rights Amendment in any and all ways, please. Use your own ideas or refer to our ACT Tab, above, to launch your own ACTIONS. Let us know how we can assist your initiative.
More Questions (2/2021)
1.What is the ERA and what is its status today? The Equal Rights Amendment would add a provision to our Constitution saying that:
“Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex.”
Congress passed the ERA in 1972 with broad, bipartisan support, including from the Republican Party and President Nixon. The amendment then went to the states for ratification/legislative votes. By the late 1970s, the legislatures of 35 states had ratified/voted for it—three short of the 38 required for a constitutional amendment. Now, decades later, the ERA has surged forward again. In 2017, Nevada became the 36th State to ratify. In 2018, Illinois became the 37th. With the final state legislature of Virginia ratifying the ERA on January 27, 2020, the ERA will reached the threshold set by Article V of the Constitution, which provides that an amendment is effective when ratified by three-quarters of the states, 38.
2. Why is the ERA before Congress again? The joint resolution that introduced the ERA included a deadline/time limit for full ratification. It said the ERA would become part of the Constitution only if it were ratified by three-quarters of the states by 1979. (It wasn’t, but it met that criterion of full states’ ratifications on January 27, 2020, with Virginia State legislature’s final vote to ratify/vote for ERA.)
Congress later passed another resolution, extending the deadline to 1982. When 1982 came and went, the movement stalled, though broad support for the ERA has continued. Every year since 1982, a bill has been introduced in Congress that would start the process all over again.
Today, there are also bills pending that would do something different: they would eliminate the deadline/ time limit [given for achievement of 38 ratifications] ,thus allowing the original ratification process to continue uninterrupted. (currently, S.J. Res. 1; H.J. Res. 17, originally created and launched in 2009 by our own Nat’l Equal Rights Amendment Alliance, Inc.) This is legally enabled because the original deadline/time limit appeared in a separate joint resolution, rather than in the text of the amendment itself. A joint resolution can be changed, under the basic principle that one Congress cannot bind subsequent Congresses. If the deadline/time limit remains in place, the courts may ultimately be asked to decide whether a deadline in a joint resolution can really be effective to stop an amendment from becoming part of the Constitution once it has been ratified by the required three-quarters of the states. But to avoid that issue altogether—and to express Congress’s intent that the amendment be effective as soon as the 38th state ratifies, as the framers of the Constitution intended—Congress can vote now to eliminate the deadline/time limit.
3. Why is the ERA necessary, in light of the Constitution’s Equal Protection Clause? The 14th Amendment says that the government may not “deny to any person within its jurisdiction the equal protection of the laws.” The Supreme Court has held that this provision gives some protection against sex discrimination, but it doesn’t apply to sex in the same way it applies to race or national origin. And some justices believe that the decisions that extended the 14th Amendment to sex discrimination are wrong, because the framers of the 14thAmendment did not have sex equality in mind. According to the late Justice Scalia, “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.” As a result, if the Court moves to the right, the decisions that say the 14th Amendment provides some protection against sex discrimination could be rolled back. Ratification of the ERA enshrines equal rights as a core value in our Constitution, finally providing an explicit guarantee of protection against discrimination on the basis of sex.
4. How would the ERA differ from the protections already provided under the law? Many federal, state, and local laws prohibit discrimination. For example, Title VII is a federal law that prohibits corporate and government employers from discriminating based on sex, race, color, national origin, or religion. Title IX is a federal law that (with certain exceptions) requires schools that receive federal funds to give students equal opportunities regardless of sex. The ERA addresses discrimination from a different perspective: it prohibits sex discrimination under the law, including in statutes, regulations, government employment, and law enforcement. And it will enshrine those protections in the Constitution, which can’t be changed as easily as other laws can.
5. What could Congress do under the ERA that it currently cannot do? The second clause of the ERA says that “Congress shall have the power to enforce, by appropriate legislation, ”the equal rights guarantee reflected in the first clause.”
This would give Congress power to enact laws protecting against sex discrimination at the state level—for example, in law enforcement and criminal law. In 2018 a federal court in Michigan struck down a federal criminal law relating to female genital mutilation, on the ground that Congress lacked the power under the Constitution’s Commerce Clause to pass that kind of law. (That decision is currently on appeal.) The second clause of the ERA would give Congress an independent source of power to enact laws like that one, to ensure that girls are adequately protected against this harmful procedure.
Passage of the ERA would also give Congress the power to enact laws that ensure adequate prosecution of and protection against sexual assault and domestic violence.
6. Didn’t some states try to “undo” their ratifications? In the 1970s, five of the states that ratified the ERA later passed resolutions attempting to limit or rescind their prior ratifications. But historically, resolutions like these have not prevented the original ratifications from counting toward the threshold. When the 14th Amendment was ratified in 1868, for example, it became part of the Constitution even though two states had passed resolutions attempting to rescind their prior ratifications—and those two states were included on the list of states that ratified. Although one court held in 1981 that a state does have the power to rescind its ratification of the ERA, the Supreme Court vacated that decision after the ERA deadline had passed, so it is no longer on the books.
7. Opponents of the ERA have said that it would prohibit any distinctions based on sex, so it would harm women rather than helping them. Is that true? NO. The government would still be able to draw distinctions based on sex if they pass “strict scrutiny.” So, if a state has a compelling interest in maintaining a specific sex-based distinction—for example, limiting a battered women’s shelter to women, to protect them from continued trauma—the ERA would not affect it. Indeed, many states have had ERAs in their own constitutions for many years, and those ERAs have not led to the elimination of all sex distinctions—for example, in single-sex prisons, locker rooms, and bathrooms.
In any event, most of the laws that people think of as benefitting women—like social security regulations, WICbenefits, laws requiring child or spousal support, and so on—are actually already sex-neutral.
8.Wouldn’t the ERA require a major change in military service and the draft? NO. There is currently nothing that prevents the draft from being extended to women. In fact, the Senate passed a bill in 2016 that would have required women to register. The bill had the support of the late Senator John McCain, who noted that women already serve with great distinction in our armed forces. And a federal court in Texas recently held that a male-only draft would be unconstitutional even under the 14thAmendment.
9. Isn’t this all about changing the law on abortion? NO. In fact, when Nevada and Illinois recently ratified the ERA, the votes in favor of ratification included a number of state legislators who are firmly pro-life. As these legislators explained, a vote for the ERA is a vote for equal TREATMENT. The Supreme Court has already held that the Constitution protects the right to abortion, even without the ERA.
The ERA would enhance equality across a variety of areas, including by protecting women from discrimination based on pregnancy, childbirth, and motherhood!
UPDATE 2021: Now that the 38th state legislature has ratified/voted for the language of the Equal Rights Amendment, our U.S. Constitution requires that new Amendment #28 be directly codified/added officially to our Constitution. But partisan lawsuits against this have been filed. Our fine attorneys have counter-sued, and we wait. Our bills, they DON'T!
Prepared by Linda Coberly of Winston & Strawn LLP for the ERA Coalition Legal Task Force. For more information, please visit http://www.eracoalition.org/ or https://www.winston.com/en/resource/equal-rights-amendment.html.2(updated for timeliness by Sandy Oestreich, 2/20/2021, founder-pres.,Nat’l Equal Rights Amendment Alliance, Inc.)
“Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex.”
Congress passed the ERA in 1972 with broad, bipartisan support, including from the Republican Party and President Nixon. The amendment then went to the states for ratification/legislative votes. By the late 1970s, the legislatures of 35 states had ratified/voted for it—three short of the 38 required for a constitutional amendment. Now, decades later, the ERA has surged forward again. In 2017, Nevada became the 36th State to ratify. In 2018, Illinois became the 37th. With the final state legislature of Virginia ratifying the ERA on January 27, 2020, the ERA will reached the threshold set by Article V of the Constitution, which provides that an amendment is effective when ratified by three-quarters of the states, 38.
2. Why is the ERA before Congress again? The joint resolution that introduced the ERA included a deadline/time limit for full ratification. It said the ERA would become part of the Constitution only if it were ratified by three-quarters of the states by 1979. (It wasn’t, but it met that criterion of full states’ ratifications on January 27, 2020, with Virginia State legislature’s final vote to ratify/vote for ERA.)
Congress later passed another resolution, extending the deadline to 1982. When 1982 came and went, the movement stalled, though broad support for the ERA has continued. Every year since 1982, a bill has been introduced in Congress that would start the process all over again.
Today, there are also bills pending that would do something different: they would eliminate the deadline/ time limit [given for achievement of 38 ratifications] ,thus allowing the original ratification process to continue uninterrupted. (currently, S.J. Res. 1; H.J. Res. 17, originally created and launched in 2009 by our own Nat’l Equal Rights Amendment Alliance, Inc.) This is legally enabled because the original deadline/time limit appeared in a separate joint resolution, rather than in the text of the amendment itself. A joint resolution can be changed, under the basic principle that one Congress cannot bind subsequent Congresses. If the deadline/time limit remains in place, the courts may ultimately be asked to decide whether a deadline in a joint resolution can really be effective to stop an amendment from becoming part of the Constitution once it has been ratified by the required three-quarters of the states. But to avoid that issue altogether—and to express Congress’s intent that the amendment be effective as soon as the 38th state ratifies, as the framers of the Constitution intended—Congress can vote now to eliminate the deadline/time limit.
3. Why is the ERA necessary, in light of the Constitution’s Equal Protection Clause? The 14th Amendment says that the government may not “deny to any person within its jurisdiction the equal protection of the laws.” The Supreme Court has held that this provision gives some protection against sex discrimination, but it doesn’t apply to sex in the same way it applies to race or national origin. And some justices believe that the decisions that extended the 14th Amendment to sex discrimination are wrong, because the framers of the 14thAmendment did not have sex equality in mind. According to the late Justice Scalia, “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.” As a result, if the Court moves to the right, the decisions that say the 14th Amendment provides some protection against sex discrimination could be rolled back. Ratification of the ERA enshrines equal rights as a core value in our Constitution, finally providing an explicit guarantee of protection against discrimination on the basis of sex.
4. How would the ERA differ from the protections already provided under the law? Many federal, state, and local laws prohibit discrimination. For example, Title VII is a federal law that prohibits corporate and government employers from discriminating based on sex, race, color, national origin, or religion. Title IX is a federal law that (with certain exceptions) requires schools that receive federal funds to give students equal opportunities regardless of sex. The ERA addresses discrimination from a different perspective: it prohibits sex discrimination under the law, including in statutes, regulations, government employment, and law enforcement. And it will enshrine those protections in the Constitution, which can’t be changed as easily as other laws can.
5. What could Congress do under the ERA that it currently cannot do? The second clause of the ERA says that “Congress shall have the power to enforce, by appropriate legislation, ”the equal rights guarantee reflected in the first clause.”
This would give Congress power to enact laws protecting against sex discrimination at the state level—for example, in law enforcement and criminal law. In 2018 a federal court in Michigan struck down a federal criminal law relating to female genital mutilation, on the ground that Congress lacked the power under the Constitution’s Commerce Clause to pass that kind of law. (That decision is currently on appeal.) The second clause of the ERA would give Congress an independent source of power to enact laws like that one, to ensure that girls are adequately protected against this harmful procedure.
Passage of the ERA would also give Congress the power to enact laws that ensure adequate prosecution of and protection against sexual assault and domestic violence.
6. Didn’t some states try to “undo” their ratifications? In the 1970s, five of the states that ratified the ERA later passed resolutions attempting to limit or rescind their prior ratifications. But historically, resolutions like these have not prevented the original ratifications from counting toward the threshold. When the 14th Amendment was ratified in 1868, for example, it became part of the Constitution even though two states had passed resolutions attempting to rescind their prior ratifications—and those two states were included on the list of states that ratified. Although one court held in 1981 that a state does have the power to rescind its ratification of the ERA, the Supreme Court vacated that decision after the ERA deadline had passed, so it is no longer on the books.
7. Opponents of the ERA have said that it would prohibit any distinctions based on sex, so it would harm women rather than helping them. Is that true? NO. The government would still be able to draw distinctions based on sex if they pass “strict scrutiny.” So, if a state has a compelling interest in maintaining a specific sex-based distinction—for example, limiting a battered women’s shelter to women, to protect them from continued trauma—the ERA would not affect it. Indeed, many states have had ERAs in their own constitutions for many years, and those ERAs have not led to the elimination of all sex distinctions—for example, in single-sex prisons, locker rooms, and bathrooms.
In any event, most of the laws that people think of as benefitting women—like social security regulations, WICbenefits, laws requiring child or spousal support, and so on—are actually already sex-neutral.
8.Wouldn’t the ERA require a major change in military service and the draft? NO. There is currently nothing that prevents the draft from being extended to women. In fact, the Senate passed a bill in 2016 that would have required women to register. The bill had the support of the late Senator John McCain, who noted that women already serve with great distinction in our armed forces. And a federal court in Texas recently held that a male-only draft would be unconstitutional even under the 14thAmendment.
9. Isn’t this all about changing the law on abortion? NO. In fact, when Nevada and Illinois recently ratified the ERA, the votes in favor of ratification included a number of state legislators who are firmly pro-life. As these legislators explained, a vote for the ERA is a vote for equal TREATMENT. The Supreme Court has already held that the Constitution protects the right to abortion, even without the ERA.
The ERA would enhance equality across a variety of areas, including by protecting women from discrimination based on pregnancy, childbirth, and motherhood!
UPDATE 2021: Now that the 38th state legislature has ratified/voted for the language of the Equal Rights Amendment, our U.S. Constitution requires that new Amendment #28 be directly codified/added officially to our Constitution. But partisan lawsuits against this have been filed. Our fine attorneys have counter-sued, and we wait. Our bills, they DON'T!
Prepared by Linda Coberly of Winston & Strawn LLP for the ERA Coalition Legal Task Force. For more information, please visit http://www.eracoalition.org/ or https://www.winston.com/en/resource/equal-rights-amendment.html.2(updated for timeliness by Sandy Oestreich, 2/20/2021, founder-pres.,Nat’l Equal Rights Amendment Alliance, Inc.)
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