With all due respect to the 19th century effort to strip citizenship from Americans who accept titles of nobility from foreign countries, the Equal Rights Amendment (ERA), which would have codified the equality of men and women under the law, is undoubtedly the most well-known proposed Constitutional amendment to pass Congress but fail to gain the approval of enough states to be ratified. History would suggest that by gaining Congress’s approval, the ERA passed the single most formidable hurdle on the road to ratification. The next step, approval by two thirds of state legislatures, has been accomplished successfully by 27 of the 33 amendments passed by Congress since 1789.
The Equal Rights Amendment was one of the six that fell short of ratification. But although its deadline for ratification passed 35 years ago, the ERA has not completely faded from the political scene or the public consciousness. A group in the non-ratifying state of Illinois launched a new pro-ERA effort in July, while Gloria Steinem discussed the amendment in an appearance on Broadway with Michael Moore. Steinem also recently teamed up with Dorothy Pitman Hughes to release an ERA t-shirt. Contemporary efforts on behalf of the ERA face long odds, for reasons I will discuss, but the ongoing activism reflects recognition of the fact that, in the age of Donald Trump, accomplishments on behalf of gender equality remain incomplete and tenuous. The story of the ERA is also an illustration of the importance of state-level political activism for progressive change.
Beginning in 1923, supporters of the ERA spent nearly fifty years struggling to shepherd it through Congress. Advocates were forced to contend with reactions of the sort expressed in a 1948 article distributed by the Associated Press. “Women, bless them, are on the march,” wrote columnist Arthur Edson. “The (sic) want a new amendment to the constitution—an equal rights amendment. And since women are persistent creatures, they may get it.” But it would not be until 1972 that the Congress finally approved the ERA. In the form that passed Congress, ERA reads as follows:
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.
As future Supreme Court Justice Ruth Bader Ginsburg argued in a 1973 essay for the American Bar Association Journal, the importance of the ERA stems from the absence of guarantees of gender equality in current Constitutional law. This is not merely the perception of ERA advocates; as Ginsburg’s future colleague Antonin Scalia argued earlier this decade, “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.”
A slew of states ratified the ERA in the immediate aftermath of Congress’s approval, and the enshrinement of gender equality in the Constitution began to seem inevitable. Why, then, did it ultimately fall three states short of ratification? There were, of course, a variety of forces and circumstances involved, ranging from the efforts of conservative activists like Phyllis Schlafly to the polarizing effect of the Supreme Court’s Roe vs. Wade decision. Ultimately, however, the ERA was killed by the hostility of state legislators in the South.
Even before the amendment was sent to the states for ratification, Senator Sam Ervin, Democrat of North Carolina, set the tone for much of the opposition that was to come. Today, Ervin is best remembered for his role as Chairman of the Senate Committee that investigated the Watergate scandal, but he was also a tireless opponent of the ERA. Ervin viewed the ERA in much the same way as he viewed legislation intended to secure the civil rights of African Americans in the 1950s and 1960s. For him, such laws represented unacceptable government intrusion upon the rights of Americans to be discriminatory and unjust if they so choose. However, it seems clear that Ervin’s opposition to the ERA was motivated not simply by his views regarding the proper role of government but also by his simple discomfort with “non-traditional” understandings of the proper roles of men and women in society. At the time the ERA passed Congress, Ervin stated that it would “have a most serious impact upon the social structure of America and for that reason, in my opinion, would constitute evil.”
Of the eleven states that once made up the Confederacy, only Texas and Tennessee ratified the ERA. (Tennessee legislators later attempted to rescind their ratification.) The paucity of ratifications in the South was not due to a lack of effort on the part of pro-ERA activists. A woman named Flora Crater led the charge in Virginia. As Crater’s daughter explained to me, once her children had reached school age, Crater, who had grown up in the town of Orange, Virginia, delved into the feminist and anti-Vietnam War movements that were sweeping America in the late 1960s and early 1970s. She launched a newsletter entitled The Woman Activist, serving as its editor and principal writer from the 1970s until shortly before her death in 2009.
In 1973 Crater ran as an independent candidate for the office of Lieutenant Governor of Virginia; she won 10.5 percent of the vote in the general election. Virginia was not exactly the most likely place for such a candidate: the state’s flagship public university had gone fully coeducational only three years prior .While nowhere near enough to win office, that ten percent of voters chose an avowedly feminist and independent candidate is a testament to Crater’s dogged campaigning and her skill at communicating a progressive message to skeptical audiences.
Crater made the effort to encourage Virginia’s ratification of the ERA a focal point of her activism in the 1970s. Issues of The Woman Activist chronicle this crusade, with a particular emphasis on the Virginia legislative session of 1974. That battle formally launched with a public hearing on the ERA that was held on September 18th, 1973 at the University of Richmond. Speakers offered testimonials for and against the ERA, with the ubiquitous Phyllis Schlafly declaring that “ERA will not accomplish anything constructive for the benefit of women.”
When it was Crater’s turn to speak, she introduced herself to those gathered by stating that “My background is physically and philosophically Virginian—philosophically in the sense of its history and search for justice.” She went on to say that “In all of my work and experience I have never felt more right about an issue than that women must have the constitutional guarantee of the Equal Rights Amendment as passed by the Congress of the United States. I worked for three years lobbying the Congress for its passage. Virginia women share this concern for women’s rights with me. It is growing and it is as solid as a rock.”
A Washington Post editorial reprinted in The Woman Activist details what happened when the ERA came before the Virginia General Assembly in early 1974. To receive a vote from the full House of Delegates (one of the two legislative bodies making up the General Assembly), a pro-ERA resolution first needed to pass through the House Privileges and Elections Committee. The committee was chaired at the time by Democrat James Thomson, who sank the resolution with a bit of backroom skullduggery. As the Post editorial explains, Thomson brought the panel into a private session, in which he introduced a memo alleging that the amendment would compel the male-female integration of public bathrooms and jails. The committee then voted to kill the ratification resolution.
The Post editorial went on to speculate that the duplicitous means by which the pro-ERA resolution was stopped might galvanize the amendment’s supporters and ensure its eventual passage later. Pro-ERA activists were indeed outraged; but despite the passion and effort of Crater and those like her, the ERA’s fate in Virginia would prove to be a harbinger of things to come. Indiana would become the 35th out of the 38 required states when it ratified the amendment in January 1977. As the original deadline for the amendment’s ratification approached, the ERA was still three states short of ratification. Congress passed, and President Jimmy Carter signed, a bill extending the ratification deadline three years to June 30th, 1982, but no states ratified the amendment after Indiana.
While activism on behalf of the ERA has certainly ebbed since the 1970s, it has not ceased. Pro-ERA resolutions continue to be introduced in legislatures of states that have not previously ratified the amendment, including Virginia. Despite the passage of the deadline and the fact that several states sought to rescind their ratifications, many contemporary activists continue to press a “three-state strategy,” arguing that ratification from only three additional states is all that is necessary for the amendment’s passage. The Virginia Senate finally approved the ERA in 2011, and has passed several additional ratification resolutions in the years since, but formal state ratification would require similar effort by the Republican-dominated House of Delegates, which has consistently refused to take any such action.
In the decades following the 1982 deadline, it became fashionable in some quarters to suggest that while the ERA’s opponents may have won the specific battle they fought against the amendment, they ultimately lost the war. The emancipation and empowerment of American women, in other words, had been achieved in spite of the ERA’s failure. It was pointed out that the supposed horrors that conservatives alleged would come about if ERA were ratified, such as marriage equality for gay couples and greater integration of women in the military, have arrived even without it. But the election of a President whose disrespect for women is as extensive and well-documented as Donald Trump’s ought to remind us of the tenuousness of these gains. What’s more, the fate of the ERA represents an early lesson of the sort that has been learned all too painfully in recent years in places such as North Carolina – the extent to which hostility on the part of state government can represent a significant obstacle to justice. The ERA had the support of prominent national leaders ranging from stalwart progressives to Republican president Gerald Ford, but the enthusiasm of such figures was not enough to overcome state-level opposition.
For Flora Crater, a life of political activism went on even after the defeat of the ERA. She poured her energies into the publication of multiple editions of the Almanac of Virginia Politics. In 1997, the Virginia General Assembly, the same legislative body that had stymied her efforts on behalf of the ERA a quarter century earlier, passed a resolution honoring Crater, saluting her for “her manifold efforts to inform and educate the citizens of Virginia.” A similar honor followed Crater’s passing in 2009. But these acknowledgements, while admirable, are no substitute for meaningful political action on behalf of gender equality. The most fitting tribute to the efforts of Flora Crater and other activists would be to break the Southern logjam on ERA ratification. Considering the current partisan makeup of most Southern state legislatures, this is tall order, to say nothing of the legal thicket surrounding the validity of contemporary ratification efforts. But whether efforts on behalf of equality and justice take the form of the ERA or not, the importance of activism in the South stands as an enduring lesson of the battles of the 1970s.