ERA: Once More Unto the Breach?

ERA: Once More Unto the Breach?

Now that women will be on the front lines in combat, maybe the country is finally ready to put gender equality in the Constitution.


Women hold up signs on Capitol Hill in Washington, Wednesday, June 22, 2011, during a news conference in support of the re-introduction of the Equal Rights Amendment. (AP Photo/Jacquelyn Martin)

Now that women will be allowed in combat, can we please have the ERA? One of the biggest arguments against the Equal Rights Amendment was that women would be drafted and sent to the front. Of course, we haven’t had the draft since 1973, although men still have to register for it at age 18. But in the unlikely event that the draft is reinstated tomorrow, it’s not hard to imagine women being included. Since 1982, when the ERA was defeated three states short of ratification, opposition to women in the military has faded. In the wake of the combat announcement, only dinosaurs like George Will still argue that women are too weak and incompetent to kill their fair share of Muslims. Three decades have transformed attitudes: we are way past seeing women as delicate maidens in need of male protection.

Indeed, the fears exploited by ERA opponents to such great effect have mostly come to pass. Stay-home mothers will lose their right to alimony? Check—unless she has a very special lawyer, a wife who stays home with her children will be lucky to get a few years of “rehabilitative maintenance” to retool herself for paid employment. Women will have to pay child support to men? Check again—that also happens these days, when the woman is the breadwinner—just ask Britney Spears. Unisex public toilets? I’m not keen on them myself, but generations of college students have grown up in coed dorms with less privacy than you’d find at the dog run in Central Park. I’m sure we can all work something out.

“The arguments against the ERA are melting away,” Feminist Majority head Ellie Smeal told me by phone. “Insurance pricing by gender? The Affordable Care Act takes care of that. Marriage equality? We’re getting that too.” By the end of the struggle for ratification, courts had used the Fourteenth Amendment and Title VII to dismantle the legal structure of sex discrimination. So would the ERA really change anything? Smeal thinks it would strengthen anti-discrimination law, and also promote the case for equal pay for work of equivalent value. “Right now the burden in these cases is on us. The ERA would change that.”

Not so fast, says Phyllis Schlafly, the ERA’s archnemesis, who argues that supporters could never show what good the amendment would do—and, moreover, that what it would accomplish would be unpopular. Americans still oppose drafting women, she claims (but there is no draft! Why are we even talking about it?), as well as gay marriage (actually, not so much), taxpayer-funded abortion and other outcomes that chill conservative hearts. “We don’t believe that every factory and office should be 50 percent men and women,” Schlafly told me in her brisk fashion. “Should Congress have to be half women?” I must say that sounds like a great idea, especially when you consider that at the present rate it will take about 5,000 years for the United States to achieve it. 

And that’s the thing. Of course the ERA won’t mandate equal representation in Congress or anywhere else, but the very fact that it evokes the possibility is what’s exciting about it. The ERA would switch the paradigm from how much equality you can wring from a Constitution that does not specifically grant women any rights except the vote to a Constitution that says equality is the basic understanding, for sex as well as for race. Why shouldn’t the onus be on those who enjoy and profit from the subordination of women, instead of on women who want to be treated as equals? Why did it take until last year, for example, to ban charging women more for health insurance just because they are women?

A lot of women just roll their eyes when the ERA comes up, I know. It looks like a bit of a relic—“as retro as men wearing bell-bottom trousers,” Schlafly quipped, quoting Jeb Bush. Today it’s treasured by a small number of older activists, some of whom argue that there’s a legal path by which it’s potentially alive and only in need of three more states to pass (Google “Madison Amendment”). Stout-hearted Carolyn Maloney reintroduces it every session in Congress, to no effect. It’s not only anti-feminists who feel its time has passed. But maybe we need to think again.

The great thing about the ERA is that it isn’t a piecemeal, derivative thing. It’s a grand statement about the dignity of women—and, yes, gays and transgendered people and men—as bearers of rights and citizenship, about our right to full participation in life. We could use that now, in this era of flourishing backlash in virtually every area—politicians setting up as medieval gynecologists, religious pizza manufacturers seeking to deprive their workers of contraception coverage, churches fighting for the right to fire unmarried pregnant women, public schools that push out pregnant students. We’ve just seen a Congress that couldn’t even renew the Violence Against Women Act, an all-male Iowa Supreme Court that upheld a male dentist’s right to fire a female assistant he found too attractive, and an Alabama judge who declared fertilized eggs to be persons. Misogyny is rampant on the Internet, where revenge porn is the latest fad, and women who speak up about anything related to gender are threatened with rape and murder by anonymous creeps. Maybe the Fourteenth Amendment can’t do everything. At one point, Justice Scalia suggested that it didn’t even apply to women. “It’s extremely important to have women’s rights explicitly recognized in the Constitution,” says Jane Mansbridge, author of the indispensable Why We Lost the ERA. “Like the First Amendment, which was originally understood very narrowly, it would have important good effects over time.”

Reproductive rights, pay equity, marriage equality, no more discrimination against mothers, basic social respect: maybe it’s time to get those old ERA banners out of mothballs and fight for all of our rights, once and for all.

The prospects for progress in the struggle for women’s rights in the next four years are surveyed by Laura Flanders in this issue.

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