Equal Rights and a Constitutional Amendment

From its beginning, in the 1920's, to its final failure in 1982, the Equal Rights Amendment (ERA) had a very long and controversial history. Suffrage paved the way for women to participate more comprehensively in the political process. So with this new found power, women began to work for an amendment securing their equal rights. An intense effort to ratify the ERA occurred twice in the history of the Women's Movement: The first, in the 1920's, after the right to vote was won, and then again in the 1970's, when society once again faced a drastic change in gender roles. Both times, ratification proved elusive. When a comparison is made between the 1920's and the 1970's there are differences as to who opposed the ERA as well as how and why they opposed it. At both points in history though, the opposition to the ERA was extremely vocal, strong, determined, organized and ultimately successful.

One difference between the two time periods is that the ERA never received Congressional attention in the 1920's. In order to address this failure, however, it is important to first make a distinction between the two opposing views among feminists that emerged after the right to vote was obtained (Ford 54). Supporters of Suffrage knew what the right to vote meant, but supporters of the ERA could not agree as to what equal rights meant. "Unlike the vote, which was a well-defined, single political act, equality was a much more ambiguous concept" (Ford, 63). Two separate equal rights belief systems established themselves. One, consisting of liberal feminists, deemed the 'legal equality doctrine' as the best possible answer to securing equal rights for women. They wanted gender-neutral laws and policies to ensure their rights. The other group, social reform feminists, followed a 'fairness doctrine' where women should receive special treatment and that laws should consider the unique burdens of family and childbirth that women bore (Ford 55).

Since the ERA simply stated in 1923 that "men and women shall have equal rights throughout the United States", and special treatment was not mentioned nor addressed, a great deal of opposition emerged. In essence, the "introduction of the ERA brought to the surface the deep divide within the women's movement and society as a whole" (Ford, 55) and "provided a foil for all sides to wrangle with the competing visions of woman's role in society" (Ford, 56). This was because supporters were unable to convince society that the ERA would, one, not radically change existing social norms and that it would, two, actually empower women "to be more effective advocates of their self interests at home and in politics". (Ford 59)

Opponents did not believe that treating women like men was inherently progressive or even fair for women. They, therefore, "successfully convinced a majority of men and women that the ERA would radically change the way society was organized along gender lines" and they didn't have to invest much effort into opposing the amendment because there never really was wide ranging support for it, even among some feminists. This time period simply could not accept the shift in gender status that might take place for women, if an amendment was ratified.

Secondly, opposition mounted to economic and workplace concerns as well as to fears of radical shifts in gender lines. Women opposed to the ERA were wrestling with exactly how to combine their roles as mothers and caretakers with the possible role, defined by the ERA, as political, social, and economic equals to men. Would the ERA just add more responsibilities to all the ones that women already had? Most women were not ready for this and could not support the ERA for fear that they would become overwhelmed with responsibility. "They did not view absolute legal equality as promised by the amendment as fair to women since the law might require that women be treated the same as men. Any compensatory advantage women gained through progressive employment would be lost" and this was not the sort of equality that women wanted. (Ford 59)

In addition, women who supported the ERA did not address the needs of women of different social, economic and racial groups. Women who believed in protective legislation, accused supporters of the ERA of "elitism, charging that they had never worked a twelve-hour factory shift, so they did not and could not understand the issues of working class women." Labor unions, then, in addition to social reform feminists "mobilized their membership in opposition to the ERA", in particular, to protect legislation that "compensated women in the workplace for the additional burdens of caring for children and a family". With women being divided as to what equal rights meant and also divided as to whether or not equality with men would be beneficial or harmful to their way of life, adequate support for the ERA never materialized. These forces rallied together so successfully that there was not enough support for a formal hearing and the ERA was buried until women were ready to address the issue once again in the 1970's. (Ford 55-56)

In the 1970's, in contrast to the 1920's, the ERA did reach Congress and was eventually passed. However, with the workplace and economic issues of the 1920's legally addressed with the Civil Rights Act and the Equal Pay Act in the 1970's, opponents worried about what exactly the ERA would actually accomplish. "What makes amendments controversial is not necessarily opposition to the principles they embody but the uncertainties about the specific policy consequences that may flow from those principles" (Manfredi 132). Major players in this controversial debate were Conservative leaders, like Ronald Reagan, and fundamentalist Christians, who were mobilizing efforts to decelerate progressive reforms of all kinds that were present in the 1970's (Ford 60) throughout the United States. Their efforts were mostly in response to the Supreme Court decision from Roe v. Wade. The backlash to Roe v. Wade made a severe impact on the survivability of the ERA. If "the Court could extract a right to abortion from existing constitutional language" (Manfredi 120), ERA opponents worried what rights would be extracted from a gender equality amendment.

The ERA's final failure, then, can be attributed to opponents approaching the issue in a more widespread and persuasive way that included mobilizing themselves more successfully within the country. As a result, the ERA eventually died when it was then presented to the states to ratify. The support, slowly, but very steadily declined due to social and political reasons that were organized effectively within the states. The pro-ERA activists mostly focused there attention within Washington DC, trying to, and ultimately succeeding in, convincing Congress that the ERA would be beneficial and progressive. But even with Congress' support the ERA couldn't compete with the growing anti-ERA sentiment that was prevalent within the individual states. "Ant-ERA forces were very successful in raising fears about radical social change, the federal government's active intrusive into personal lives, and the loss of the traditional family" (Ford 63).

Specifically, opponents were interested in protecting the home and preserving traditional family values (Ford 56). In the 1970's, they argued that the ERA would force full time homemakers into the paid labor force when they wanted to maintain their "right to the role of primary caregiver and homemaker" (Ford 59). Forcing women into the workplace was inherently unfair to women, opponents argued, and would lead to unpleasant consequences like divorce and the degradation of the traditional family. Again, American society was not ready to accept a shift to women's roles that the ERA could create. How gender roles were viewed and how the ERA could and would be interpreted played a very large part in the eventual death of the ERA.

If American Society was to renew its campaign in support for the ERA, assuming that American society was socially and politically ready for it, then it would be in proponents' best interest to keep in mind certain factors that exist when attempting to modify to U.S. Constitution. These factors include institutional rigidity, interpretive flexibility, and litigation potential as described by Christopher Manfredi. Institutional rigidity is defined by the nature in which an amendment can be ratified and, then possibly altered. The U.S. Constitution has a very rigid formal amendment process and therefore creates a tough barrier to the adoption of any amendment 118- 119.This rigidity also creates difficultly in correcting or changing anything about an amendment. Interpretive flexibility and litigation potential refers to the capability of an amendment to be interpreted and legally utilized in unforeseen ways. The ERA had high interpretive flexibility and litigation potential in that the language was ambiguous and vague. It would be "difficult to predict, control, or reverse the specific policy consequences of a formal amendment." 132. Opponents capitalized on the fear that unanticipated consequences could result from the ERA. The policy impact of the ERA was uncertain and in the wake of "judicial activism epitomized by Roe [v. Wade]" 120-121 opponents had "an incentive, as well as the institutional means, to prevent ratification." 119.

If supporters were willing to attach regulations to the amendment that would allow the for the ERA to be more attractive to opponents and less exposed to interpretive flexibility, and litigation potential then the inherent institutional rigidity would be less of a barrier and the chances for ratification could be increased.

Suffrage gives us two predominant examples from which supporters of the ERA can learn. One example is that by the time Suffrage succeeded, the idea that women had a right to vote was so entrenched in American thought that it was inevitable. It took decades for American society to accept this changing role of woman as being capable of political autonomy, but it did happen. However, social attitudes in the 1920's and the 1970's had not caught up with legal change that the ERA was attempting. At both times it is apparent that the legal change the ERA proposed preceded any social change. The ERA or the idea of an equal rights amendment, in both time periods, never reached as wide of and acceptance as Suffrage had, even among women. It might take another fifty years for society to accept legal equality between men and women, without addressing the burden of family and childbirth that the ERA ignores. Society as a whole was and is not ready to alter their attitudes towards women's roles in the way that the ERA proposes. The ERA simply came before any wide ranging change in social attitudes. "ERA supporters were unsuccessful in convincing the American public that the ERA would simply affirm the country's commitment to women's rights in ways that were consistent with current values" (Ford 63).

Another example where supporters of the ERA can learn is in strategy. Support for Suffrage was wide; however, different women's organizations approached the cause with diverse perspectives as to how to attain victory. One group, the National American Woman Suffrage Association (NAWSA), wanted to work in a conservative manner. They felt it was important to work within the existing system and slowly convince Congress of their views. Another group, the National Woman's Party (NWP), was more radical in their attempts. They demanded the vote. They picketed, went on hunger strikes, and traveled the nation in automobiles. It is obvious that it was the combination of both approaches that aided in the final victory of the vote. With this in mind, supporters of the ERA could participate in similar strategies.

The early history of the Women's Movement included the pursuit of voting privileges and of equal rights. The right to vote, granted by Constitutional Amendment in 1920, paved the way for women to participate more thoroughly in the political process and to pursue an Equal Rights Amendment (ERA). However, the equal rights effort proved even more difficult than Suffrage. Women simply could not agree with each other on what equal rights meant. With these opposing views in addition to how an amendment would be interpreted and enforced created an environment that made it impossible to an ERA victory. From the early feminists struggles of middle and late 1800's and the 1920's to the reinvigorated efforts of the Women's Movement in the 1970's, the ERA created a division among women and society so wide that it had no hope of ratification.

Bibliography

Ford, Lynne E. 2002. Women and Politics: The Pursuit of Equality. Boston: Houghton Mifflin Company.

Manfredi, Christopher P. 1997. "Institutional Design and the Politics of Constitutional Modification: Understanding Amendment Failure in the United States and Canada." Law and Society Review 31:136.