Frontiero was decided in May 1973; Ginsburg’s article advocating the ERA was published a few months later. It was neither her first nor last word on the subject, but it usefully lays out the history of the amendment and reasons for its ratification, and rebuts the main arguments offered by its opponents. Perhaps speaking out seemed more urgent given that three of the Justices who declined to join Justice Brennan in recognizing sex as a “suspect” classification pointed to the ERA for justification. As Justice Powell wrote for the three:
The Equal Rights Amendment, which if adopted will resolve the substance of this precise question, has been approved by the Congress and submitted for ratification by the States. If this Amendment is duly adopted, it will represent the will of the people accomplished in the manner prescribed by the Constitution. By acting prematurely and unnecessarily, as I view it, the Court has assumed a decisional responsibility at the very time when state legislatures, functioning within the traditional democratic process, are debating the proposed Amendment.
The Congress that passed the amendment set a deadline for ratification of March 22, 1979. By 1973, a countermovement led by conservative activist Phyllis Schlafly and her STOP ERA organization had emerged and was active in many states. When STOP ERA and associated groups successfully brought ratification to a halt, Congress extended the deadline to mid-1982, but to no avail. On June 21, 1982, the ERA died, three states short of the constitutionally required thirty-eight ratifying states.
Although Justice Ginsburg’s own work in the 1970s—and that of many others in the thirty-plus years since the defeat of the ERA—has made the need for a constitutional amendment less urgent than in 1973, she would still like to see the principle of gender equality spelled out in the United States Constitution. In 2014, speaking at the National Press Club in Washington, D.C., she explained why: “I would like my granddaughters, when they pick up the Constitution, to see that notion—that women and men are persons of equal stature—I’d like them to see that is a basic principle of our society.” 1
The Need for the Equal Rights Amendment
American Bar Association Journal, September 1973I
The notion that men and women stand as equals before the law was not the original understanding, nor was it the understanding of the Congress that framed the Civil War amendments. Thomas Jefferson put it this way:
Were our state a pure democracy there would still be excluded from our deliberations women, who, to prevent depravation of morals and ambiguity of issues, should not mix promiscuously in gatherings of men.2
Mid-nineteenth-century feminists, many of them diligent workers in the cause of abolition, looked to Congress after the Civil War for an express guarantee of equal rights for men and women. But the text of the Fourteenth Amendment appalled the proponents of a sex equality guarantee. Their concern centered on the abortive second section of the amendment, which placed in the Constitution for the first time the word male. Threefold use of the word male, always in conjunction with the term citizen, caused concern that the grand phrases of the first section of the Fourteenth Amendment—due process and equal protection of the laws—would have, at best, qualified application to women.3
After close to a century’s effort, the suffrage amendment was ratified, according to female citizens the right to vote. The most vigorous proponents of that amendment saw it as a beginning, not as a terminal point. Three years after the ratification of the Nineteenth Amendment, the National Woman’s Party succeeded in putting before Congress the equal rights amendment that has been reintroduced in every Congress since 1923. On the occasion of the amendment’s initial introduction, the executive secretary of the National Woman’s Party explained:
[A]s we were working for the national suffrage amendment . . . it was borne very emphatically in upon us that we were not thereby going to gain full equality for the women of this country, but that we were merely taking a step . . . toward gaining this equality.4
Persons unacquainted with the history of the amendment deplore its generality and the absence of investigation concerning its impact. The models of the Due Process and Equal Protection Clauses should suffice to indicate that the wording of the amendment is a thoroughly responsible way of embodying fundamental principle in the Constitution. Before the amendment was proposed, the National Woman’s Party, with the aid of a staff of lawyers and expert consultants, tabulated state and federal legislation and court decisions relating to the status of women. Advisory councils were formed, composed of different economic and professional groups of women—industrial workers, homemakers, teachers and students, federal employees. Each council conducted studies of the desirability of equal rights and responsibilities for men and women. Reading debates on the amendment in the law journals of the 1920s is enlightening. The objections still voiced in 1973 were solidly answered then.5
Opponents of the amendment suggest the pursuit of alternate routes: particularized statutes through the regular legislative process in Congress and in the states, and test case litigation under the Fourteenth Amendment.6 Only those who have failed to learn the lessons of the past can accept that counsel.
On the legislative side the cupboard was bare until 1963 when Congress passed the Equal Pay Act. That legislation was hardly innovative. An equal pay requirement was in force during World War II and then quietly retired when there was no longer a need to encourage women to join the labor force.7 Equal pay was the subject of a 1951 International Labor Organization convention and was mandated by the Rome Treaty that launched the European Economic Community in 1958. Most significantly, mixed motives spurred congressional action. Some congressmen were sold on the bill by this argument: equal pay protects against male unemployment; without access to female labor at bargain prices, employers will prefer to hire men.8
The next year sex was included along with race, religion, and national origin in Title VII of the Civil Rights Act of 1964. This was a significant advance, for Title VII is a most potent weapon against employment discrimination. But sex was added to Title VII via the back door. A Southern congressman, steadfast in his opposition to Title VII, introduced the amendment that added sex to the catalogue of prohibited discrimination. His motive was apparent, but his tactic backfired.9
In 1972, in Title IX of the Education Amendments of that year, Congress banned federal assistance to educational institutions that discriminate on the basis of sex. Title IX contains several exceptions, for example, admissions to all private and some public undergraduate schools are exempt, and its enforcement mechanism is weak.
These three measures, the Equal Pay Act, Title VII, and Title IX, are the principal congressional contributions. Not an impressive record in view of the job that remains to be done. A recent government computer search, the solicitor general told the Supreme Court this Term, revealed that 876 sections in the United States Code contain sex-based references.10 Similar searches in some of the states have turned up hundreds of state statutes in need of revision.11
Will major legislative revision occur without the impetus of the Equal Rights Amendment? Probably not if past experience is an accurate barometer. Scant state or federal legislative attention focused on the discriminatory statutes identified by the National Woman’s Party in the 1920s. After Congress passed the Equal Rights Amendment, it remained unwilling to ban sex discrimination in admissions to undergraduate schools, although the 1971 Newman report informed it that “discrimination against women, in contrast to that against minorities, is still overt and socially acceptable within the academic community.” As a graphic illustration, the 1969 profile of the freshman class at a well-known state university cautions: “Admission of women on the freshman level will be restricted to those who are especially qualified.”12 A candid response came from the Air Force Academy this year: We will enroll women in 1975 if the amendment is ratified, the superintendent said. If the amendment is not ratified, women will have to wait a long time before they can expect to enroll.13
• • •
; A preview of the kind of revision that can be expected under the stimulus of the amendment has been provided by legislative analyses in some of the states. These analyses should reassure those who fear intolerable change in the wake of the amendment. They propose extension of desirable protection to both sexes; for example, state minimum wage laws would be extended to men; in no case do they propose depriving either sex of a genuine benefit now enjoyed.14
As a sample of laws destined for the scrap heap if the amendment is ratified, consider these: Arizona law stipulates that the governor, secretary of state, and treasurer must be male.15 In Ohio only men may serve as arbitrators in county court proceedings.16 In Wisconsin barbers are licensed to cut men’s hair and women’s hair, but cosmeticians may attend to women only.17 Georgia law, still faithful to Blackstone, provides:
The husband is head of the family and the wife is subject to him; her legal civil existence is merged in the husband’s, except so far as the law recognizes her separately, either for her own protection, or for her benefit, or for the preservation of public order.18
Another embarrassment from the same state reads: “Any charge or intimation against a white female of having sexual intercourse with a person of color is slanderous without proof of special damages.”19 Legislative inertia keeps laws of this kind on the books. Professor Thomas Emerson summarized the situation this way: “It is not a weakness but a strength of the amendment that it will force prompt consideration of changes that are long overdue.”20
If one turns to the contribution of the judiciary and litigation under the Fourteenth Amendment, Supreme Court decisions that span 1873 to 1961 tell us this. Until the Nineteenth Amendment, women could be denied the right to vote. Of course, they are “persons” within the meaning of the Fourteenth Amendment, but so are children, the Court observed in 1874.21 The right to serve on juries could be reserved to men,22 a proposition the Court declined to reexamine in 1971, although Justice Douglas urged his brethren to do so.23 Women, regardless of individual talent, could be excluded from occupations thought more suitable to men—lawyering and bartending, for example.24
Typical of the attitude that prevailed well into the twentieth century is the response of one of our nation’s greatest jurists, Harlan Fiske Stone, author of the celebrated Carolene Products footnote that supplied the rationale for the suspect classification doctrine. In 1922, when Chief Justice Stone was dean of Columbia Law School, he was asked by a Barnard graduate who wanted to study law, “Why doesn’t Columbia admit women?” The venerable scholar replied in a manner most uncharacteristic of him: “We don’t because we don’t.”25
• • •
A number of “horribles” have been raised in opposition to the amendment. Four of them dominate the literature of amendment opponents.
First horrible. Women will lose the benefit of protective labor laws. Today, challenges to these laws rarely emanate from male employers who wish to overwork women. Since the passage of Title VII, they have come overwhelmingly from blue-collar working women to overcome what they regard as a system that protects them against higher-paying jobs and promotions. In the vast majority of Title VII employment discrimination cases, courts have understood these challenges.26 Legislatures are beginning to abandon disingenuous protection for women and to extend genuine protection to all workers. Models are ample. In Norway, for example, where opposition to “special protection for women only” came predominantly from women’s organizations, a 1956 workers’ protective act assures safe and healthy conditions for employees of both sexes. Moreover, extension rather than invalidation of laws that benefit only one sex is a route recently traveled by the Supreme Court. In Frontiero v. Richardson, fringe benefits for married male members of the military were extended to married female members. The National Woman’s Party put it this way decades ago in 1926:
[P]rotective legislation that is desirable should be enacted for all workers. . . . Legislation that includes women but exempts men . . . limits the woman worker’s scope of activity . . . by barring her from economic opportunity. Moreover, restrictive conditions [for women but not for men] fortif[y] the harmful assumption that labor for pay is primarily the prerogative of the male.27
Second horrible. Wives will lose the right to support. Only if our legislatures or courts act capriciously, spitefully, without regard for public welfare, and in flagrant disregard of the intent of the amendment’s proponents.28 In a growing number of states the Equal Rights Amendment will occasion no change whatever in current support law. In these states, and under the amendment in all states, either husband or wife can be awarded support depending on the couple’s circumstances. Who pays in any particular family will depend upon the division of responsibilities within that family unit. If one spouse is the breadwinner and the other performs uncompensated services at home, the breadwinning spouse will be required to support the spouse who works at home.
Underlying the amendment is the premise that a person who works at home should do so because she, or he, wants to, not because of an unarticulated belief that there is no choice. The essential point, sadly ignored by the amendment’s detractors, is this: the Equal Rights Amendment does not force anyone happy as a housewife to relinquish that role. On the contrary, it enhances that role by making it plain that it was chosen, not thrust on her without regard to her preference.
Third horrible. Women will be forced to serve in the military. Only if men are, and assignments would be made on the basis of individual capacity rather than sex. With the draft terminated, it is high time for consideration of the other side of that coin. Women who wish to enlist must meet considerably higher standards than men; women in the service are denied fringe benefits granted men and do not receive equal vocational training opportunities. The reason for higher standards for women was given by an Air Force colonel in a deposition taken in December 1972.29 He explained: “We have had and we continue to have roughly twice as many women apply[ing] as we are able to . . . take. . . . We don’t have an excess of men over what we can take.”
Young women’s groups uniformly testified during congressional hearings on the amendment that they did not wish exemption from responsibility for service. Conspicuous among these groups was the 200,000-member Intercollegiate Association of Women Students, a group appropriately characterized as “middle American.”30
In 1948, long before women and the military became an emotion-charged issue in connection with the Equal Rights Amendment, General Dwight D. Eisenhower observed:
Like most old soldiers I was violently against women soldiers. I thought a tremendous number of difficulties would occur, not only of an administrative nature . . . but others of a more personal type that would get us into trouble. None of that occurred. . . . In the disciplinary field, they were . . . a model for the Army. More than this their influence throughout the whole command was good. I am convinced that in another war they have got to be drafted just like the men.31
Final horrible. Restrooms in public places could not be sex separated. Emphatically not so, according to the amendment’s proponents in Congress,32 who were amused at the focus on the “potty problem.” Apart from referring to the constitutional regard for personal privacy, they expressed curiosity about the quarter from which objection to current arrangements would come. Did the people who voiced concern suppose that men would want to use women’s restrooms or that women would want to use men’s? In any event, the clever solution devised by the airlines suggests one way out of the problem.
Some persons have expressed fear of a “flood of litigation” in the wake of the Equal Rights Amendment. But the dramatic increase in sex discrimination litigation under the Fifth and Fourteenth Amendments in the 1970s is indicative that, if anything, ratification of the amendment will stem the tide. The amendment will impel the comprehensive legislative revision that neither Congress nor the states have undertaken to date. The absence of long-overdue statutory revision is generating cases by the hundreds across the country.33 Legislatures remain
quiescent despite the mounting judicial challenges, challenges given further impetus by the Supreme Court’s decision in Frontiero v. Richardson. Ratification of the amendment, however, would plainly mark as irresponsible any legislature that did not undertake the necessary repairs during the two-year period between ratification and effective date.
To date, three-fifths of the states have ratified the amendment; these thirty states represent a clear majority of the country’s population. One state, Nebraska, has attempted to withdraw its ratification. But New Jersey and Ohio took the same action with respect to the Fourteenth Amendment, and New York ratified and then withdrew its ratification of the Fifteenth Amendment. Congress at that time evidently concluded that ratification once accomplished, could not be undone. New Jersey and Ohio were counted to constitute the requisite three-fourths for promulgation of the Fourteenth Amendment. New York was counted among the states that ratified the Fifteenth Amendment.34
The Equal Rights Amendment, in sum, would dedicate the nation to a new view of the rights and responsibilities of men and women. It firmly rejects sharp legislative lines between the sexes as constitutionally tolerable. Instead, it looks toward a legal system in which each person will be judged on the basis of individual merit and not on the basis of an unalterable trait of birth that bears no necessary relationship to need or ability. As the Federal Legislation Committee of the Association of the Bar of the City of New York explained:
[T]he Amendment would eliminate patent discrimination, including all laws which prohibit or discourage women from making full use of their political and economic capabilities on the strength of notions about the proper “role” for women in society. Any special exceptions or other favorable treatment required by some women because of their physical stature or family roles could be preserved by statutes which utilize those factors—rather than sex—as the basis for distinction.35
My Own Words Page 14