by Anne Schlafly Cori, Chairman, Eagle Forum
I have a ticket to the 1979 World Series; can I use it for this year’s World Series? That is essentially the ridiculous argument being used today to try to shoehorn the Equal Rights Amendment into our U.S. Constitution.
Amending our U.S. Constitution is a big deal and should not be done lightly. The amending process requires a super-majority — not a simple majority — of both houses of Congress, plus a super-majority of the individual states to agree on the same language. Amending is a multi-stage process with multiple votes so that the American people can be fully engaged in the process. Any change to our Constitution should have a contemporaneous consensus of Americans.
The amending process is designed as a contract between the states and the federal government. As in any contract, one side cannot change the rules without consent from the other side. To monkey with the amending process undermines the rule of law. The consent of the governed is crucial to our system of government.
In 1972, Congress passed the Equal Rights Amendment with a super-majority and the resolution included a preamble with a time limit of seven years for the states to ratify. Many of the states that did ratify ERA included that same seven-year time limit in their ratification documents. Congress cannot unilaterally change that contract. For 24 of the states, their votes to ratify ERA explicitly expired on March 22, 1979.
The Supreme Court has ruled unanimously, in Dillon v. Gloss (1921), that Congress has the power to choose a reasonable time frame for the states to consider amendments because amendments should have a “contemporaneous consensus”. Other amendments have been proposed by Congress but never garnered the required number of states to be adopted. The Supreme Court ruled in NOW v. Idaho (1982) that ERA had failed ratification.
Most of our Constitutional amendments were ratified by the states very quickly, in one or two years. Only one amendment took longer than four years to ratify: the “Madison Amendment”, which requires an election before a Congressional pay raise can go into effect. That forgotten amendment took 202 years to achieve ratification, but that time frame has never been adjudicated because the Madison Amendment is not controversial. The same cannot be said of ERA.
To amend the Constitution, two-thirds of both the U.S. House and U.S. Senate must pass the amendment and then three-quarters (38) of the state legislatures must ratify the same language.
In 1978, Congress attempted to extend the ERA deadline, but the extension was only passed by a simple majority and not the necessary two-thirds vote required by Article V. Now Congress is trying to pass similar legislation in order to revive ERA. In the U.S. House, H.J.Res. 38, with 205 co-sponsors, seeks to eliminate the 1979 deadline. The same action in the Senate is S.J.Res. 6.
If Congress really wants ERA in the Constitution, then the proponents should start from the beginning.
Anytime we amend our Constitution, it should be done legally and not under a cloud. To shoehorn ERA into the Constitution at this time would guarantee litigation on two fronts: the amendment process and the plain language of the amendment.
Constitutional amendments are not for an emotional feeling. They have a bigger force than statutes and a new amendment will supersede all previous Constitutional language. Does anyone know what the effect of ERA will be on our First Amendment rights of religion, speech, and assembly if “sex” must be equal? “On the basis of sex” will mean new rights for the transgenders and homosexuals.
Of the states that ratified ERA, 35 did between 1972 and 1977. Can we hang new ratifications on votes that were made 47 years ago? The general understanding of the words in the document has dramatically changed in those 47 years. ERA does not define “sex”. In the 1970s, Americans understood the definition of “sex” to be the biological determination at birth of a male or a female. But today “sex” has a host of new “definitions” beyond even a physical act, including sexual orientation and gender identity. Facebook is constantly expanding their number of gender options, thus redefining what “gender” means.
The world has moved on from this vague language in ERA. Amendments to the Constitution should be in clear language that is easily understood — not in language that both sides anticipate will be litigated. Even the ERA proponents expect that the Supreme Court will have to determine if the language in ERA includes abortion and reproductive rights. Why would Americans willingly adopt confusing and vague language into our Constitution? Why should we give away so much power to the courts by putting language into the Constitution that only the courts can parse?
American voters through their elected representatives should decide the meaning of legislation, not nine justices.
ERA has lots of implications on lots of issues that have been legislated and adjudicated at the state and local level. Under ERA, all of these family laws will be decided by the federal government — either Congress or the Supreme Court. Proponents of ERA openly advocate for the expansion of power to the federal government; all conservatives should oppose such a power grab. Under ERA, the states would dramatically lose power and influence.
If ERA is so popular and so desired, then the 35 states should want to reaffirm their support. Instead, ERA is just as controversial and debated today as it was in the 1970s. These 35 states are being used by proponents because the supporters know that there is not deep support for this controversial amendment.
Does ERA have anything to do with women? Women are not mentioned in ERA. Some troubling developments indicate that ERA would harm women, not help women. Because ERA sees no distinction on the basis of “sex”, then ERA would actually force us into a completely sex-neutral society.
Some of the many areas that would be sex-neutral under ERA include school athletics, prisons, women’s shelters and transitional housing, sororities, WIC nutrition programs, financial incentives for women in education and business, and workplace accommodations for pregnant and breast-feeding women. Plus, the U.S. military will be required to be sex neutral in all areas, including combat and selective service.
Women — and all Americans — would lose if the misnamed “equal rights” amendment were put into our Constitution.