In 1972 the proposed Equal Rights Amendment, originally drafted in 1923, and sponsored by Martha Griffiths in the house and Birch Bayh in the Senate, passed both houses of Congress. The amendment sought to guarantee Constitutional equality of the sexes in such a way as to extend to all areas of law. In simple language the text read:
Section 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.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.
Though the amendment garnered what would today be considered mind boggling bipartisan support in Congress – achieving at least a 2/3 majority in both chambers, the amendment was just three states short of garnering ratification by three-fourths of the States within the seven year period authorized by Congress. As a result, the ERA failed to meet the Constitution’s stringent amendment requirements. Nevertheless, the near success of the ERA has engendered consistent and long-standing support for a second attempt at ratification.
On Saturday, as Harvard Law celebrated the 60th anniversary of the first women graduates of HLS, the Women’s Law Association and the Harvard Journal of Law and Gender hosted Professor Catharine MacKinnon and former Congresswoman Elizabeth Holtzman for a conversation and brainstorming session on the ERA moderated by Jessica Neuwirth of Equality Now. The event was attended by students, alumni, and other practitioners and began with an overview of the ERA’s legislative history, the rationale behind the ERA, and then finally an open forum discussion on approaches to a successful renewal of the campaign.
Professor MacKinnon began the discussion addressing a prevalent concern about why the ERA is needed now. Gender discrimination is litigated using guarantees in the Constitution’s Equal Protection Clause and Title VII of the Civil Rights Act of 1964. These provisions together were intended to ensure equal treatment under the law between the sexes and counteract gender discrimination in the work place respectively. Use of these provisions in discrimination cases has had success but in spite of this, Professor McKinnon argues that either through litigation or legislation the Equal Protection clause has not closed the gap to where its needed.
In suggesting that structural aspects of the law have led to stagnation in positive legal development around Title VII and the Equal Protection Clause, Professor MacKinnon pointed specifically to the court’s preservation of an intent requirement on the part of a discriminating employer. Discriminatory intent is inherently an extremely difficult thing to prove especially given the variety of ways employers can act to thwart career women’s advancement. Additionally, the law’s inability to redress structural inequality in which women are locked into lower paying jobs also indicates the vitality of current provisions is in question. If women are stuck doing lesser work its nearly impossible to find discrimination under the current framework because different work can justify different pay. At the end of the day, while “rational review” under the Equal Protection Act and “motive and purpose” under Title VII are perhaps sensible features of the legal scheme, the primary benefactors have mainly been men and elite women.
Professor MacKinnon also touched on the inability of the current legal framework to provide adequate redress for women victimized by rape and domestic violence. She pointed to the extremely low rate of prosecutions and lack of deterrence nationwide for such crimes.
Former Congresswomen Elizabeth Holtzman provided valuable insight for those interested in reviving the Equal Rights Amendment. Taking from lessons learned after the failure to pass the ERA in the 70’s Holtzman balanced two competing strategies. The first, would be to deal with the amendment as it stands passed by Congress. The failure to garner the three-fourth’s majority remains a technical issue because no time-period in which states must ratify an amendment is Constitutionally mandated (consider passage of the 27th amendment). It is unclear whether states can rescind their ratification and if more importantly, a resolution could be passed to essentially lift the already passed deadline on the amendment – as paradoxical as that may sound.
At the same time activists and politicians could attempt to start from scratch with a new and updated Equal Rights Amendment. This approach would give lawmakers the ability to craft new language opening the door to incorporation of wider notions of gender. Many of the participants agreed that this indeed would lead to a better amendment. However, starting the whole process anew would require considerable political effort not to mention the enormous bipartisanship needed to gain two-thirds of both branches of Congress given the current political climate.
Both options need to be weighed carefully and it appears consensus on this issue would be a benchmark in assessing the vitality of any new effort to get the ERA passed.