With the surge in popularity of the women's movement in opposition to the "Republican War on Women," there has been a lot of talk about persuading Congress to pass a law giving feminists a chance to persuade the last three states needed to ratify the Equal Rights Amendment, first proposed in 1923.
Why is passing the Equal Rights Amendment not a good goal for feminists?
|Hannah Miyamoto, J.D., M.S., M.A.|
1. Diversion of effort. History shows that women's movements are inherently fragile. For example, after the 19th Amendment was adopted in 1920, the next generation of women used their freedom to focus on SEX!* not women's rights. Moreover, the brightest lights entered politics and sought careers. Lillian Hellman, e.g., once explained her embrace of leftist politics over women's movement work by recalling that when she was young, she thought that women's rights was "stale stuff".
Similarly, the Second Wave never had the full support of African-American women until about 1980, because "Black Power" men insisted that African-American women must fight for "their race" before worrying about their gender. By 1980, of course, the Right had poisoned millions of white women to oppose "Radical" feminism.
Passing the ERA would likely have the same effect as passing the 19th amendment: Women would quit the women's movement as soon as it passed, leaving all the other necessary reforms undone.
2. Limited value of the ERA. The ERA--and Alice Paul, Ph.D., A.B., would be the first to concur, if she were alive--will only affect what laws "say," and not what they "do." The most invasive anti-abortion bill applies equally to females and males--even though males don't have a uterus--and therefore is CONSTITUTIONAL UNDER ERA.
The answer, therefore, is to enact an amendment that actually achieves what women want, like protect their bodies from legislatures or require equal pay for equal work.
3. "Women are already Legally Equal." Since 1976, all the federal and state courts have been required--thanks to a U.S. Supreme Court decision--to rule that ALL LAWS that treat women and men differently are INVALID, unless the GOVERNMENT proves they "further an important government interest in a way that is substantially related to that interest."
Laws that explicitly discriminate on the basis of sex are already struck down, unless they protect an "important government interest." Examples include the "important government interest" in keeping men out of women's restrooms.
4. "Equal means Strictly Equal." One ERA supporter argued to me that Courts should treat differently the words and acts that create a "hostile environment" for a female worker differently from the rules for a male's sexual harassment claim. She argued, logically enough, that women are more sensitive to sexual comments than men.
The ERA--remember that most federal judges are Men--would smash that very idea. Making women LEGALLY equal to men would bar governments from adopting any law that *protects* women differently from men.
Note: Even in 1923, the U.S. Supreme Court used the 19th amendment to help support its ruling that a law guaranteeing women a minimum wage was unconstitutional, since it had previously ruled against laws protecting men from low wages and long hours!
5. "Beware of what you ask for." The principal effect of adopting the ERA would be to require the law to treat gender discrimination the way it treats race and ethnicity discrimination: Forbidden. Unfortunately, for the last 30 years, the U.S. Supreme Court has used that very rule--called "strict scrutiny"--to strike down or limit program after program to help minorities, calling them "reverse discrimination." Of course, the doctrine of "reverse discrimination" has been very useful in blocking the elimination of both racial and gender-based inequality in the U.S.
Passing the ERA would make programs to aid women just as vulnerable to "reverse discrimination" claims, and male judges would be ruling on the cases.
6. "Experience teaches." Perhaps the most significant reason to be cautious about pushing for ERA passage is that the women's movement has deliberately left the ERA aside for 30 years. The case for the ERA is different than it was in the mid-1970s because 1) there were still many discriminatory laws then, and 2) the judges were much friendlier to women's rights then.
Now, after hard-core conservative administrations have appointed dozens of conservative judges hostile to the goals of feminism to the federal court, is not the time to risk the gains we have made by passing the ERA.
Instead, let's get behind reforms that protect women's rights FROM legislatures that do not always consider the rights of women when they pass laws. One example is the Margaret Sanger Reproductive Rights Amendment, which would prevent Governments from restricting the rights of women and men to control their reproduction, get an abortion, or have access to sex education materials.
Hannah Miyamoto received a J.D. from Hamline Univ. law school in 1992, and has practiced extensively on gender-related cases. She also holds an M.S. in Women's Studies from Minnesota State Univ., Mankato (2003) and an M.A. in Sociology, focusing on social movements, from the Univ. of Hawai'i at Manoa (2008).
*birth rates rose from 1920-1930, after falling for at least three decades.
 Hellman, Lillian. "An Unfinished Woman: A Memoir." (1969), pp. 29-30, in Ware, Susan, "Beyond Suffrage: Women in the New Deal." Cambridge, Mass.: Oxford Univ. Press (1981), p. 20.