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Why We Lost the ERA
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.
2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
3. This amendment shall take effect two years after the date of ratification.
— Complete text of the Equal Rights Amendment
In March 1972 the Equal Rights Amendment to the United States Constitution — the ERA — passed the Senate of the United States with a vote of 84 to 8, seventeen votes more than the two-thirds required for constitutional amendments. In the ensuing ten years — from 1972 to 1982 — a majority of Americans consistently told interviewers that they favored this amendment to the Constitution. Yet on June 30, 1982, the deadline for ratifying the amendment passed with only thirty-five of the required thirty-eight states having ratified.
How did this happen?
This book will argue that if the ERA had been ratified, the Supreme Court would have been unlikely to use it to bring about major changes in the relations between American men and women, at least in the foreseeable future. Nor did the American public want any significant change in gender roles, whether at work, at home, or in society at large. The groups that fought for the ERA and the groups that fought against it, however, had a stake in believing that the ERA would produce these kinds of changes. With both the proponents and the opponents exaggerating the likely effects of the ERA, legislators in wavering states became convinced that the ERA might, in fact, produce important substantive changes — and the necessary votes were lost. Considering the large number of legislative votes required to amend the Constitution, the puzzle is not why the ERA died but why it came so close to passing.
Contrary to widespread belief, public support for the ERA did not increase in the course of the ten-year struggle. In key wavering states where the ERA was most debated, public support actually declined. Much of the support for the Amendment was superficial, because it was based on a support for abstract rights, not for real changes. Many nominal supporters took strong antifeminist positions on other issues, and their support evaporated when the ERA became linked in their minds to feminist positions they rejected.
The irony in all this is that the ERA would have had much less substantive effect than either proponents or opponents claimed. Because the ERA applied only to the government and not to private businesses and corporations, it would have had no noticeable effect, at least in the short run, on the gap between men's and women's wages. Furthermore, during the 1970s, the Supreme Court began to use the Fourteenth Amendment to the Constitution to declare unconstitutional almost all the laws and practices that Congress had intended to make unconstitutional when it passed the ERA in 1972. The exceptions were laws and practices that most Americans approved. Thus, by the late 1970s it was hard to show that the ERA would have made any of the substantive changes that most Americans favored.
While the ERA would have had few immediate, tangible effects, I nonetheless believe that its defeat was a major setback for equality between men and women. Its direct effects would have been slight, but its indirect effects on both judges and legislators would probably have led in the long run to interpretations of existing laws and enactment of new laws that would have benefited women. The lack of immediate benefits did, however, deeply influence the course of the public debate. Because ERA activists had little of an immediate, practical nature to lose if the ERA was defeated, they had little reason to describe it in a way that would make it acceptable to middle-of-the-road legislators. As a consequence, the most influential leaders in the pro-ERA organizations and many of the activists in those organizations chose to interpret the ERA as delivering radical results.
Most proponents contended, for example, that the ERA would require the military to send women draftees into combat on the same basis as men. ERA proponents adopted this position even though it reduced their chances of achieving the short-run goal of passing the ERA and despite the fact that the Court was not likely to interpret the ERA as having this effect. They did so in part because their ideology called for full equality with men, not for equality with exceptions. In a somewhat similar manner, certain feminist lawyers argued in state courts that state ERAs required states to fund medically necessary abortions if they were funding all medically necessary services for men. Such arguments also reduced the chances that legislators in the key unratified states would vote for the federal ERA.
The struggle reveals how impossible it is, even in the most favorable circumstances, to dispense with "ideology" in favor of practical political reasoning when the actors in the drama give their energies voluntarily, without pay or other material incentives. Volunteers always have mixed motives, but most are trying to do good and promote justice. As a result, most would rather lose fighting for a cause they believe in than win fighting for a cause they feel is morally compromised.
Because the ERA offered its supporters no tangible benefits, activists worked hard for it only if they believed strongly in equality for women. They had no reason to "betray" that principle by compromise for compromise offered no concrete benefits, either to them personally or to women generally. ERA opponents took relatively extreme positions for similar reasons. But their "radicalism" cost them less, because they had only to disrupt an emerging consensus, not to produce one.
Refusing to compromise is, of course, often better than winning. It is not the focus on principle rather than practice that should give the reader of this story pause. It is the difficulty both sides had assimilating information about the struggle in which they were engaged. This institutionalized deafness meant that neither the activists nor the general public could make even an informed guess about what passage of the ERA would accomplish. As a result, there was no serious national debate about whether the Amendment was the best way of accomplishing what the proponents sought or whether it really threatened the values that opponents sought to defend. Nor did the proponents, who ran the gamut from feminist lawyers to grass-roots activists, ever engage one another in a wide-ranging discussion of strategy.
The only possible way to have persuaded three more state legislatures to ratify the ERA would have been to insist — correctly — that it would do relatively little in the short run, and to insist equally strongly — and correctly — on the importance of placing the principle in the Constitution to guide the Supreme Court in its long-run evolution of constitutional law. In addition, the pro-ERA movement would have had to develop an ongoing, district-based political network capable of turning generalized public sympathy for reforms that benefit women into political pressure on specific legislators in the marginal unratified states. But even this strategy might not have worked. Comparatively few state legislators were open to persuasion on this issue, and the troops for district-based organizing were often hard to mobilize — or keep mobilized.
The movement away from principle and the increasing focus on substantive effects was probably an inevitable result of the ten-year struggle for the ERA. Inevitable or not, the shift did occur. In the near future, therefore, the only way to convince legislators that the ERA would not have undesirable substantive effects would be to add explicit amendments limiting its application to the military, abortion, and so on. No principled feminist, including myself, favors an ERA that includes such "crippling" amendments. In the present political climate, therefore, the future of the ERA looks even dimmer than its past.
The death of the ERA was, of course, also related to broader changes in American political attitudes. Two of these changes were especially relevant: growing legislative skepticism about the consequences of giving the U.S. Supreme Court authority to review legislation, and the growing organizational power of the new Right.
Suspicion of the Supreme Court, and of the role of lawyers and judges generally, certainly played a significant role in the ERA's demise. For its advocates, the ERA was a device for allowing the Supreme Court to impose the principle of equality between the sexes on recalcitrant state legislators. For legislators, that was precisely the problem. They did not want their actions reviewed, much less reversed, by federal judges whom they did not even appoint. There was a larger problem as well. The ERA embodied a principle, which was supposed to apply, without exception, to specific pieces of legislation. But most people — including most legislators — do not derive their preferences from principles. Instead, they derive their principles from their preferences, endorsing principles they associate with outcomes they like. Because the justices of the Supreme Court of the United States put somewhat more weight than ordinary citizens do on the principles they have evolved from the Constitution, they often find themselves taking controversial or even unpopular stands. As a result, much of the public has come to view the Court as "out of control." Although the Court's unpopular decisions have not yet reduced its power, they took their toll on the ERA. If the primary cause of the ERA's defeat was the fear that it would lead to major changes in the roles of men and women, a major subsidiary cause was legislative backlash against "progressive" Court decisions, starting with the 1954 school desegregation decision. Many state legislators were unwilling to give the Court "new words to play with," rightly fearing that this could eventually have all sorts of unforeseeable consequences they might not like and would not be able to reverse.
The same sense of impotence in the face of national changes that fueled the reaction against the Court also fed the conservative backlash against feminism and the growth of the "new" Right. For many conservative Americans, the personal became political for the first time when questions of family, children, sexual behavior, and women's roles became subjects of political debate. Leaders of the "old" Radical Right, who had traditionally focused on national defense and the Communist menace, became aware of the organizing potential of these "women's" issues only slowly. Once assimilated, however, the "new" issues turned out to have two great organizational virtues. First, they provided a link with fundamentalist churches. The evangelizing culture and the stable geographic base of the fundamentalist churches made them powerful actors in state legislatures once they ventured into the political process. Second, "women's issues" not only gave a focus to the reaction against the changes in child rearing, sexual behavior, divorce, and the use of drugs that had taken place in the 1960s and 1970s, they also mobilized a group, traditional homemakers, that had lost status over the two previous decades and was feeling the psychological effects of the loss. The new women's issues, combined with improvements in computer technology that reduced the cost of processing large numbers of names, made it feasible for the first time to contact by direct mail and thus bring into concerted political activities many who had previously been concerned only with a single issue or not been involved in politics at all.
State legislators were predisposed to oppose a constitutional amendment that gave the federal government power in one of the few areas that was still primarily in the province of the states, namely, family law. The entry of new conservative activists into the political process enhanced this "natural" resistance. As fundamentalist women became more prominent in the opposition, the ERA came to be seen as an issue that pitted women against women and, moreover, women of the Right against women of the Left. Once the ERA lost its aura of benefiting all women and became a partisan issue, it lost its chance of gaining the supermajority required for a constitutional amendment.
There are two lessons to be learned from the story told here. The first is a lesson about the politics of promoting "the common good." We have known for a long time of the extraordinary inequities built into the way different groups can influence legislators in a pluralist democratic system. We have also known that because it is harder to organize for the general interest than for particular interests, the general interest will — all other things being equal — count less in the political process than most people want it to. The story of the ERA struggle reveals a third, less widely recognized, obstacle to promoting the common good. Organizing on behalf of the general interest usually requires volunteers, and mobilizing volunteers often requires an exaggerated, black or white vision of events to justify spending time and money on the cause. Ironically, the greatest cost in organizing for the public interest may be the distortion, in the course of organizing, of that interest itself.
A second, practical lesson follows from the first. While organizations that depend on volunteers to promote the common good seem to have an inherent tendency toward ideological purity and polarized perceptions, they can develop institutions that help correct these tendencies, ranging from small-group techniques through formal systems of representation. Although ongoing organizations are susceptible to the temptations of speaking only to themselves, they are also our main repositories of past experience and our main mechanism for avoiding the endless repetition of past errors. Effectively promoting the common good thus requires that we keep such organizations strong and consistently funded, while at the same time trying to ensure internal dialogue on substantive issues.
A Very Brief History
The major women's organizations were able to persuade two-thirds of the states to approve women's suffrage in 1920. In the same year these organizations began to discuss an Equal Rights Amendment. Alice Paul and her militant National Woman's Party had gained national notoriety by picketing the White House and staging hunger strikes for women's suffrage. Now the same group proposed a constitutional amendment, introduced in Congress in 1923, that read: "Men and women shall have equal rights throughout the United States and in every place subject to its jurisdiction. Congress shall have power to enforce this article by appropriate legislation."
From the beginning, "equal rights" meant "ending special benefits." An ERA would have made unconstitutional the protective legislation that socialists and social reformers like Florence Kelley, frustrated by the lack of a strong working-class movement in America, had struggled to erect in order to protect at least women and children from the worst ravages of capitalism. Against Kelley and women like her, the National Woman's Party leaders, primarily professional and upper- or upper-middle-class women, argued that "a maximum hour law or a minimum wage law which applied to women but not to men was bound to hurt women more than it could possibly help them." Kelley in turn dubbed the ERA "topsy-turvy feminism," and declared that "women cannot achieve true equality with men by securing identity of treatment under the law."
After a 1921 meeting between Alice Paul, Florence Kelley, and others, the board of directors of the National Consumers' League voted to oppose the Equal Rights Amendment. The League, a powerful Progressive organization of which Kelley was general secretary, thereafter made opposition to the ERA a consistent plank in its program. The strong opposition of Progressive and union feminists meant that when the Equal Rights Amendment was introduced in Congress in 1923 it was immediately opposed by a coalition of Progressive organizations and labor unions. And although the Amendment was introduced in every subsequent Congress for the next twenty years, opposition from this coalition and from most conservatives ensured its repeated defeat.
During the 1930s, the National Association of Women Lawyers and the National Federation of Business and Professional Women's Clubs (BPW) decided to sponsor the ERA, and in 1940 the Republican party revitalized the ERA by placing it in the party's platform. In 1944, despite strong opposition from labor, the Democratic party followed suit. Nonetheless, the ERA never came close to passing until 1950 and 1953, when the U.S. Senate passed it, but with the "Hayden rider," which provided that the Amendment "shall not be construed to impair any rights, benefits, or exemptions now or hereinafter conferred by law upon persons of the female sex." In both years the House of Representatives recessed without a vote. Because the women's organizations supporting the ERA knew that special benefits were incompatible with equal rights, they had tried to block the amended ERA in the House and were relieved when their efforts succeeded.
Excerpted from "Why We Lost the ERA"
Copyright © 1986 The University of Chicago.
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Table of ContentsContents List of Tables and Figures Preface 1. Why We Lost the ERA 2. A Very Brief History 3. Rights versus Substance 4. The Amendment Process 5. 59 Cents 6. The Court Catches Up 7. The ERA and the War Powers Clauses 8. A Decision by Accretion 9. Of Husbands and Toilets 10. Ideology and Activism 11. Reaction in the Legislature 12. Organizing in Illinois: A Case Study 13. A Movement or a Sect? 14. Requiescat in Pace Appendix: Support for the ERA, 1970–1982 Notes Index