Why Doesn’t America Have An Equal Rights Amendment?

Former Massachusetts Lieutenant Governor Evelyn Murphy remembers the first time she discovered the gender pay gap. She was a college student working for the federal government during the summer, when in casual conversation, she discovered her male coworker’s pay grade was higher than hers.

“My boss explained to me that [my male coworker] had ‘management potential.’ Evidently, I did not,” she recalls. “We were both in college. I was, in fact, doing a more technical job as a mathematician working on a manuscript involving Boolean algebra. He moved around from one office to another week after week learning what different offices did.”

Perhaps it’s not surprising, then, that Murphy has made equal pay the main focus of her professional and political agenda. She is the author of Getting Even: Why Women Don’t Get Paid Like Men and What To Do About It, a member of professional women’s community The Boston Club, and the founder of the WAGE (Women Are Getting Even) Project, a nonprofit organization aimed at ending workplace discrimination against American women.

In 2014, Murphy was also appointed by Boston Mayor Martin J. Walsh to co-chair the Boston Women’s Workforce Council, which works with companies in the city on ending wage inequality. So far, 110 companies have signed a pledge to release payroll information by this summer. Murphy is excited about the initiative and says Walsh’s efforts have been “brilliant.”

Massachusetts women’s fight for wage equality is just a small part of a longstanding national conflict, namely the battle over the Equal Rights Amendment, which has never been ratified despite being drafted by suffragist Alice Paul in 1923.

Paul’s 24 words — “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex” — were met with strong opposition. The closest the amendment ever came to making it into the Constitution was in 1972. That year, it was passed in both the House and the Senate and was subsequently sent along to the states, 38 of which were required to ratify it within seven years. That deadline was extended by three years, but it was not enough. By 1982, the ERA had been ratified by only 35 states, just three shy of the necessary number.

Feminists and pro-ERA activists largely credit its failure to the dogged efforts of Phyllis Schlafly, a lawyer, author, and president of conservative activist group Eagle Forum. Schlafly and her STOP ERA (STOP standing for “stop taking our privileges”) movement railed vehemently against the passage of the amendment. It claimed that under an ERA, women would be forced out of their homes and away from their families. Furthermore, STOP ERA supporters asserted, an ERA would require women to register for the draft and serve in combat, a feat Schlafly still believes women are incapable of performing. Men were the traditional protectors, and STOP ERA’s supporters rejected passing an amendment they believed would deny women the “privilege” of such protection.

Today, Schlafly is 92 and holds as tightly to her convictions as ever. In conversation, she continues to strongly oppose women in the draft and expresses great pride in having achieved a victory over the “unhappy” feminists.

“Everybody was against us and we beat them all,” she told me. “It was the biggest challenge and a very successful ending.”

Schlafly elaborated on her STOP ERA stance, explaining that she believes much of feminism’s problem is not society itself, but self-created dissatisfaction:

“The premise of the feminists is to act like men and women are the same and to treat them the same in all cases. I think that’s ridiculous. We have the issue now of putting women in military combat. Women are not suitable for that and not able to do the same job as men. It’s very unfair of the women to even volunteer in the military. I have a lot of friends who did volunteer and join the military, but they were in women’s jobs. They were not in combat jobs . . .
“[Feminists] don’t believe women can be successful. They have a mental block where they think women are held back. And I think that’s ridiculous. Look at all I’ve been able to accomplish . . . The feminists have created their own misery. They wake up in the morning mad at the world and unhappy. If you’re unhappy, you’re going to make all the people around you unhappy and you’re not going to have a happy life.”

While she is right about her success, she is wrong about the end of the ERA. Supporters of the amendment have refused to accept defeat. Today, the effort to make it a part of the Constitution lives on through a number of liberal-leaning feminist groups. Their fight, they say, is belittling and shows how the United States is woefully far behind in promoting gender equality.

In its recent “Global Gender Gap Report,” the World Economic Forum — which examined education, economic empowerment, health, and political empowerment — named the United States as 20th out of 142 countries in the world. In regards to wage equality, we drop to 65th in the world, with women tackling the majority of childcare and housework — 248 minutes per day compared with 161 minutes for men.

“I’ve had people from other countries literally laugh at me when they find out the United States doesn’t have an Equal Rights Amendment,” says Bettina Hager, the DC Director of the ERA Coalition. “But it’s really not funny,” she adds with a pained laugh of her own.

Indeed, gender disparity manifests itself in more sinister ways as well. Despite the existence of the Violence Against Women Act, women are often disproportionately subject to become victims of abuse. A U.S. Department of Justice report found that while more men than women reported being physically assaulted, women reported more incidents of rape, stalking, and intimate partner violence. A staggering 64% of women surveyed reported being victimized by a “current or former husband, cohabiting partner, boyfriend, or date,” since the age of 18. That number for men was 16.2%. Things get even scarier for transgender women and women of color. In the first two months of 2015 alone, seven murders of trans women were committed. And it’s not often that abusers pay consequences for their crimes.

When women’s lives — both physically and metaphysically — are valued less than men’s, there is little recourse to pursue; this is what makes the ERA so essential.

Hager spends her days in Washington, D.C., as an educator and an advocate, meeting with other women’s groups, authoring Senate briefings, and otherwise persuading lawmakers on the Hill. In short? She and her counterparts spend long days trying to convince the nation that an ERA is needed, and making sure support survives.

Although the opposition is no longer as vocal or vitriolic as STOP ERA, it too persists. Some of it rests within philosophical and ideological opinions of female empowerment, with conservative-leaning feminists — like the Independent Women’s Forum (IWF) — saying they don’t need a Constitutional amendment to ensure women are just as good as men. Others oppose it from policy standpoints, claiming there are flaws in gender pay gap statistics. Pro-life advocates fear a women’s equality amendment would make irrelevant the Hyde Amendment, enshrining legalized abortion and the public funding thereof into the Constitution.

The last concern is one Hager says has little legal precedence, but it’s still the largest issue for Anne Fox, President of Massachusetts Citizens for Life (MCFL).

“If you have an Equal Rights Amendment, you cannot have any laws against abortion or abortion funding because they’re discriminatory [toward women],” she says.

“The practical results would be to constitutionalize abortion and make it impossible to restore protection for unborn babies and make it impossible to outlaw using my tax money to pay for abortions. Maybe that’s an unintended consequence, but whether it is or not, the fact is that would happen.”

National Right to Life (NRLC), of which MCFL is a local chapter, has authored numerous memos to Congress detailing the “abortion-ERA connection,” alluding to the ERA’s historic support from pro-choice organizations like NARAL, Planned Parenthood, and Emily’s List.

As abortion is a women-specific issue and because the amendment has received endorsements from abortion rights activists, NRLC and MCFL assert the ERA has everything to do with abortion regardless of whether it was designed as such. However, NRLC writes in one memo that it would rescind its opposition to the ERA if an addition is made to make it “abortion neutral.” NRLC’s proposed language reads, “Nothing in this Article [the ERA] shall be construed to grant, secure, or deny any right relating to abortion or the funding thereof.”

Bridget Fay, an attorney, board member at MCFL, and member of the Pro Life Legal Defense Fund, agrees the change would make the ERA a bit more appealing to the pro-life community. However, she still has legal reservations about putting a gender equality amendment into the Constitution. She fears that though it’s intended to protect women, varied interpretations from courts could end up hurting them as much as it should have helped them.

“Some of it is just the general idea of putting something into the Constitution that we’re then stuck with whatever interpretation the Supreme Court comes up with,” she says.

Fay also wonders why, with the existence of the numerous laws aimed at the protection and equality of women — like the Equal Pay Act, the Lilly Ledbetter Fair Pay Act, and the Violence Against Women Act — a Constitutional amendment proposing to ensure the same things would even be needed. She also cites the Equal Protection Clause in the 14th Amendment, saying that perhaps the Constitution already ensures equal rights for all.

Such a question is also posed by the IWF, a nonprofit, non-partisan women’s organization that offers an alternative to progressive feminism. IWF believes strongly in personal liberties, rejecting any measures that might unnecessarily extend the reach of the federal government further into the everyday lives of citizens. Members say a “special” amendment like the ERA fits the bill of a personal-liberty-hindering measure and that the law already ensures gender equality.

Advocates of the ERA, however, argue that such legal protection is an illusion. Hager says the ERA Coalition’s research has found that 90% of the U.S. population support equal rights amongst genders, but that 80% believe those rights are already fully protected under the law. That’s a problem, says National Women’s Political Caucus (NWPC) President Donna Lent, because measures currently in place, including the 14th Amendment, do not go far enough to ensure equal rights.

“People claim that the 14th Amendment protects all people. In that case, why would we need to ensure black suffrage with the 15th Amendment or women’s suffrage with the 19th Amendment?” she says. “It’s because the 14th Amendment doesn’t provide enough protection for true equality. If it did, we wouldn’t have had to have the 1964 Civil Rights Act, the Pregnancy Discrimination Act, or the Equal Pay Act.”

Lent also cites the late Supreme Court Justice Antonin Scalia, who once said, “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.” If even the notoriously conservative Scalia says the Constitution does not protect individuals from gender discrimination, Lent says, the ERA absolutely must be passed so that equality is a guaranteed Constitutional right.

The wage gap is perhaps the most hotly debated issue related to the ERA, and the state of Massachusetts is seeking to be a pioneer in promoting equal pay. On April 13, 150 people bustled around the Grand Staircase at the Massachusetts Statehouse for a post-Equal Pay Day event; the mostly female crowd was decked out in “Close the Gap” stickers. The atmosphere was friendly, but the event’s speakers made it clear that this was a day for awareness, not celebration. In their remarks, they cited common pay gap statistics that indicate women in general earn 79% of what men earn, the gap being even wider for women of color.

“Somebody doesn’t want us to make money. Somebody doesn’t want us to survive,” Massachusetts state Representative Gloria Fox said during her speech, her tone serious.

Massachusetts Attorney General Maura Healy and Treasurer Deborah Goldberg were also there to show their support, but opted for comedic buoyancy instead. Healy joked that women could buy “a million cups of coffee” with money they would have earned without a pay disparity, and Goldberg said she hopes wage equality can be earned “before my hair turns grey. And I hope I don’t need a colorist to do that!”

Not everyone, though, sees a need for equal pay advocacy. IWF maintains that the subject of equal pay is bolstered largely by misleading numbers and “myths.” IWF’s health policy director Hadley Heath Manning says the organization “obviously” believes in equal pay for equal work and does not deny the existence of a gender pay gap. It simply argues that not enough variables are taken into account when oft-quoted studies on the issue are conducted. The IWF claims that factors like average incomes per specific career choice, vacation time, and maternity leave are not considered in these studies but rather, sweeping data is collected and misrepresents why women end up making less than men. Manning points to studies that take into account these factors and also examine how “converging” roles of working parents impact wages. She says she learned of this discrepancy at a young age.

“I remember I was very young the first time I read about the wage gap. I was probably in grade school. I was reading a magazine that said women make 70% of what men make and . . . I remember taking it to my parents and saying, ‘What is going on here?’ It just seemed so unfair as a child in the ’90s that the world could still be that way,” she says, highlighting her understanding of where pay gap arguments originate.

“My parents explained to me that this was not an apples-to-apples comparison. It doesn’t compare a man who’s been a teacher for five years to a woman who’s been a teacher for five years, but it compares all the men who are working full-time in our economy and all the women who are working full-time in our economy . . .
“It’s not so much a story of sexist employers taking advantage of women, but it’s about the different ways women are structuring their family lives and the decisions they’re making very early in their careers about what to study and what professions to enter. So that gave me a lot of comfort as a young woman because I thought maybe the world’s not as dark and sexist as I thought it was.”

Career paths and familial choices certainly play a role in determining how much women earn. But despite Manning’s claims, Murphy argues that these “subset” factors do get taken into consideration in statistics and give only a limited understanding of why the pay gap exists. What’s really missing, she says, is information on workplace gender biases and employer conduct toward women. Such biases are implicated in other studies which show that wages in male-dominated fields actually decrease when more women join them. Furthermore, comparisons by the Bureau of Labor Statistics from 2015 indicated that even in fields dominated by women, men earned more. Per the assertions of Murphy and these studies, the world really is just “dark and sexist.”

Getting the Equal Rights Amendment ratified today will be challenging, but not impossible. In Congress, the attempt at ratification is currently on a two-track system. The first method, proposed by Senator Bob Menendez (D-NY), would give states “a fresh opportunity to voice their support for women’s equality” by beginning the ratification process anew. The other, proposed by Senator Ben Cardin (D-MD), seeks to remove the deadline for ratification. Both Menendez’s and Cardin’s resolutions are cosponsored by the likes of Senators Barbara Boxer (D-CA), Richard Blumenthal (D-CT), Kirsten Gillibrand (D-NY), and Elizabeth Warren (D-MA).

The resolutions are not competing against one another, as ERA supporters will be pleased with whichever one is successful in getting the amendment ratified. But both have their potential pitfalls. Some are fearful that starting over as Menendez proposes would further prolong the ratification process. The resolution would need to pass both the House and Senate, and then be passed on to hopefully be ratified by 38 states all over again. Cardin’s deadline removal resolution would allow for the original 35 state passages to stand, requiring only three more states to ratify. However, removing the deadline to do so is potentially unconstitutional, which would make the resolution impossible to carry out.

(Incidentally, the Cardin resolution doesn’t take into account the fact that five states actually rescinded passage of the version of the ERA passed in the ’70s, so it would be more of an eight-state solution than a three-state solution.)

Considering the ERA has historically floundered, how prioritized its passage would be under a new presidential administration in 2017 remains in question. No candidates currently in the presidential race responded to requests for comment about their respective stances, but the ERA Coalition’s records indicate Senator Bernie Sanders (D-VT) as a supporter and former candidate Senator Ted Cruz (R-TX) as an opponent.

Sanders’ campaign website is the only one explicitly mentioning the ERA, claiming that under his potential administration, “not only are we going to expand policies that advance gender equality, we are going to fight to pass the long-overdue Equal Rights Amendment and vigorously defend the critical laws and programs which protect all working people in our country.”

Hager recognizes the absence of the ERA from conversations in the Presidential race, but admits activists have not yet been successful in refreshing the conversation about the ERA on a national scale.

“As much as I care about the ERA, as I’m watching the debates I think this would not make much sense for [moderators] to ask. Not because it doesn’t matter, but because it’s not in the political or national conversation,” she says.

“I really wanted them to ask, but I think it would be a little confusing to people. That’s because we haven’t brought it up to a national level of conversation where it needs to be for it to pass. That’s something we have to work on as advocates.”

Continued advocacy and education, Lent says, are necessary for the ERA to reach the desired national levels of conversation. Those who want it to pass can help by simply “talking about it at the dinner table and supporting organizations that work for passage of the ERA.” Many of these organizations, including ones featured in this story, are nonprofits and largely rely on supporter donations.

On a positive note, while still acknowledging the strength of the current opposition, Lent says she thinks it will be easier this time around to get the ERA passed because the fears STOP ERA used to put forth “don’t hold water anymore.”

Another positive for the ERA is that it has received entertainment industry support in the past years. Patricia Arquette’s famous demands for equal pay in her Oscars acceptance speech gave the issue a new level of recognition. The U.S. women’s national soccer team’s very public fight for equal pay draws further large-scale attention to ERA-related issues. And the influence of public figures seems to be beneficial. Currently, the ERA-supporting petition Arquette started with Equal Rights Advocates currently has over 111,000 signatures.

The ERA Coalition, the NWPC, and other fellow supporters are fully aware of how much they have to “work on.” They must deal with the legal ramifications of continuing their fight, convincing the public of the need for an ERA, and getting the conversation surrounding it reignited at a national level. Despite evident barriers, the goal stands to get the ERA in the Constitution by 2020.

Hager’s thoughts? “I’m optimistic.”

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