Equal rights - unfinished business Feature: Legislators are trying to finally ratify the Equal Rights Amendment - proposed to Congress since 1923
Gail Kulick, left, and Betty Folliard. Courtesy photo.
"Americans now have an increased appreciation of the importance of Constitutional rights. In fact, 96 percent of Americans agree that we should all have equal rights. Yet 72 percent of citizens think that the ERA passed sometime last century. "
by Gail Kulick & Betty Folliard
The Equal Rights Amendment (ERA) is a proposed amendment to the United States Constitution that would prohibit discrimination on the basis of sex. It was originally written by Alice Paul and Crystal Eastman, and in 1923 it was introduced in Congress for the first time.
The text of the ERA is simple and straightforward: "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex."
Didn't that pass in the 1970s? No. The ERA did not get included in the U.S. Constitution. While it passed both houses of Congress in 1972, it needed to be ratified by 38 states, and it achieved ratification in only 35 states (Minnesota being one) before an arbitrary deadline was imposed upon it, causing the ERA to expire in 1982. There have been many amendments to the constitution over our 240-year history, and very few received a fixed deadline for ratification. Somehow, when it came to women's rights, Congress found it necessary to impose a 10-year timeframe.
The only guaranteed right for women in the Constitution is the right to vote, and even that came 132 years after the Constitution was fully ratified, and only after decades of struggle. The good news, though, is that Congress had the power to impose a deadline and they also have the power to remove that deadline - by a simple majority vote.
Do women have equal rights under the law? No. What we have are piecemeal laws addressing inequality. Courts apply the highest standard of review, called strict scrutiny, to laws that affect fundamental rights named in the Constitution, such as the prohibition of discrimination on the basis of religion, race, country of origin and freedom of speech. However, gender discrimination is not defined or prohibited in our Constitution. When courts are dealing with gender discrimination laws, they apply a lower standard of review, known as intermediate scrutiny.
Why now? All of the negative arguments that the fear-mongers of the 1970s predicted the ERA would bring - that an equal rights amendment would cause women in the military, unisex bathrooms, same-sex marriage - have already come to pass without an ERA. Americans now have an increased appreciation of the importance of Constitutional rights. In fact, 96 percent of Americans agree that we should all have equal rights. Yet 72 percent of citizens think that the ERA passed sometime last century.
Younger generations have a heightened sense of equality. We as a society need to acknowledge that our piecemeal approach to gender fairness laws hasn't corrected the problems we face. Women still make 78 cents for every dollar men make doing the same job, with much greater inequities for women of color: 64 cents for African American women and 56 cents for Hispanic women. Sexual violence is still a norm in America. Women in the military can fight and die for our country, but still don't have equal rights and are effectively shut out of the opportunity for serving on the Joint Chiefs of Staff.
People all across the U.S. continue to work toward passage of the ERA. State organizations partner with the national groups and are working at the state legislature level. This year Nevada and Florida are states to watch because of major efforts there to finally ratify the ERA.
There are new efforts in 2017 to effect legislative action at the federal and state levels. A bill in the U.S. Senate to remove the deadline on passage of the amendment is supported by Senators Amy Klobuchar and Al Franken. At the local level, bills that would enable Minnesota to become the 24th state to embed an equal rights amendment into the state constitution has been re-introduced by chief authors Sen. Richard Cohen, Sen. Scott Dibble, Rep. Ilhan Omar, and Rep. Frank Hornstein. Bills to remove the ERA deadline at a state level were introduced by Sen. Sandy Pappas and Rep. Rena Moran.
Constitutional rights are considered the foundation of our society. U.S. Supreme Court Justice Ruth Bader Ginsberg noted in an interview that every constitution in the world written since 1950 provides for equal citizenship stature for women and men. We owe it to our mothers, aunts, sisters and daughters to allow for equal access to justice and for full citizenship to be set forth in our Constitution on par with all of the other fundamental rights that define this great country.
Gail Kulick lives in Milaca. She serves as a district court judge for Mille Lacs County and is a former state legislator.
Betty Folliard is president of ERA Minnesota, executive producer of A Woman's Place radio show on AM950, and a former state legislator.