By Samantha Martin ’24
“Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
Only 24 words, strung together in a single sentence; that’s the entirety of Section 1 of the Equal Rights Amendment, or ERA, a proposed constitutional amendment that would guarantee full legal equality for all Americans regardless of their sex. Initially proposed in 1923, the ERA came close to ratification in 1972; it was passed by Congress and given seven years (later extended to 10) to be ratified by two-thirds of states, dying in 1982 just three states short of the 38-state constitutional threshold.
Since then, three additional states have voted to ratify the ERA, and the amendment is widely considered to have reached the necessary threshold for ratification, reviving conversation about the ERA in recent years. I, like many Americans, believe that if the United States is to remain a country that prides itself on the protection of fundamental human rights and is true to the principles of its founding documents, then the ERA must become the 28th Amendment to the U.S. Constitution, whether this be through the suspension of its ratification deadline or by recommencing the ratification process entirely.
Much like in the 1970s, many people oppose the ERA’s ratification, because they feel that the ERA is redundant. They believe that the 14th Amendment already adequately protects people against sex-based discrimination. This is not necessarily the case: the Supreme Court is inconsistent regarding whether the 14th Amendment prohibits sex-based discrimination; the late Supreme Court Justice Antonin Scalia, often cited as one of the most brilliant textualist constitutional scholars, explicitly said that the 14th Amendment does nothing to prevent sex- or gender-based discrimination. Adding the ERA to the Constitution would create an explicit ban on this discrimination, meaning that future courts could not waver on the issue; it would be a done deal, rather than a matter of interpretation.
Other opponents believe that the ERA would result in women losing special status in some areas of the law, including alimony and military spousal support. This argument is not based in the current reality of the legal system. Most state alimony laws are already gender-neutral, and why shouldn’t they be: if a woman is the breadwinner in a heterosexual marriage that is dissolved by divorce, it makes sense that the man, not the woman, should be the recipient of alimony payments if any are to be made. Military spousal support has also been gender neutral since 1973, as a result of the landmark Supreme Court case Frontiero v. Richardson. Once again, it is absolutely fair for male and female spouses of service people to receive the same support. The ERA would simply ensure that these laws would remain as they are regardless of any changes in state or federal government, rather than reshape family law entirely to deny women special privileges.
What the ERA would do is secure constitutional support for the progress the U.S. has made towards gender equality in recent decades. It would protect policies that have allowed women to pursue education and careers at a greater rate than ever before, such as the Equal Pay Act of 1963, the Lilly Ledbetter Fair Pay Act and Title IX. The ERA would protect the rights of those who identify as LGBTQ; since legal precedent as set by Bostock v. Clayton County says that sex “plays a necessary and undisguisable role” in discrimination against those who identify as part of the LGBTQ community, any law that forbids against sex-based oppression also protects LGBTQ people. With the overturning of Roe v. Wade making possible the reconsideration of Obergefell v. Hodges, the Supreme Court case that made same-sex marriage legal in all 50 states, due to its basis in the Substantive Due Process Clause (which establishes the right to privacy), the ERA would create a constitutional cushion for the right to marry, as well as the right to identify by gender rather than assigned sex at birth.
The ERA ensures that Americans’ rights and freedoms are protected by their government, regardless of their gender. So many of the freedoms that Americans take advantage of every day—the right to pursue an education, the right to work, the right to marry (or divorce) as one wants to, the right to decide one’s own identity—would be protected by the ERA in a way that they are not protected now. The United States claims to stand for “liberty and justice for all”; ratification of the ERA would show that our country truly does live up to the standard it set for itself.
