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STATEMENT ON THE EQUAL RIGHTS AMENDMENT United States Commission on Civil Rights Clearinghouse Publication 56 December 1978 U.S. COMMISSION ON CIVIL RIGHTS The U.S. Commission on Civil Rights is a temporary, independent, bipartisan agency established by Congress in 1957 and directed to * Investigate complaints alleging that citizens are being deprived of their right to vote by reason of their race, color, religion, sex, age, handicap, or national origin, or by reason of fraudulent practices; * Study and collect information concerning legal developments constituting discrimination or a denial of equal protection of the laws under the Constitution because of race, color, religion, sex, age, handicap, or national origin, or in the administration of justice; * Appraise Federal laws and policies with respect to discrimination or denial of equal protection of the laws because of race, color, religion, sex, age, handicap, or national origin, or in the administration of justice; * Serve as a national clearinghouse for information in respect to discrimination or denial of equal protection of the laws because of race, color, religion, sex, age, handicap, or national origin; * Submit reports, findings, and recommendations to the President and Congress. MEMBERS OF THE COMMISSION Arthur S. Flemming, Chairman Stephen Horn, Vice Chairman Frankie M. Freeman Manuel Ruiz, Jr. Murray Saltzman Louis Nunez, Acting Staff Director Acknowledgment The Commission extends its thanks to Phyllis Nichamoff Segal, legal director of the NOW Legal Defense and Education Fund, for her advice and assistance in the preparation of this statement, and to Alice Price of the Women's Law Project for her assistance in the preparation of Chapter 3. The statement was prepared under the overall direction of Carol A. Bonosaro, Director of the Women's Rights Program Unit. Contents 1. Introduction 2. The Need for the Equal Rights Amendment Current Status of Women Family Law Women in the Labor Force Criminal Law Education Existing Constitutional Guarantees 3. Effect of the Equal Rights Amendment ERA Implementation: Overview Statutory Reform through the Legislative Process Judicial Application and Interpretation Substantive Reforms under State ERAs Domestic Relations Employment Criminal Law Education 4. Summary and Conclusion Introduction On March 22, 1972, the United States Congress approved the Equal Rights Amendment (ERA) to the Federal Constitution and sent it to the States for ratification. The proposed amendment states: Sec. 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. Sec. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Sec. 3. This amendment shall take effect two years after the date of ratification. -1 Ratification of the ERA would for the first time extend to women a clear and full status of equal citizenship under the Constitution. Of course, the text of the ERA makes no mention of either sex, and the principle of equality it expresses is as much for men as it is for women. lt is, as Rep. Barbara Jordan has testified, "about human values." The Equal Rights Amendment is a mandate for change. It is a standard by which to measure our future legal and social constructs. It is about equality and freedom and the pursuit of happiness. -2 Equal rights amendments, substantially identical to the one currently proposed, have been introduced in nearly every Congress since 1923. The process has been a natural outgrowth of the ratification of the 19th amendment, which extended the right to vote to women. -3 It gained impetus from the recognition that, in the face of extensive evidence of gender-based discrimination, the courts have not interpreted the equal protection guarantees of the 5th and 14th amendments to the Constitution to require strict judicial scrutiny of classifications based upon sex. -4 Throughout its long history in Congress, the proposed ERA was acted upon favorably by several congressional subcommittees and committees and was subject to many hearings and intensive debate. -5 However, it never passed both Houses unamended until the 92d Congress, when the House of Representatives voted overwhelmingly for the ERA by 3524 on October 12, 1971, and the Senate followed suit by a vote of 88 on March 22, 1972 -6 Finally, 49 years after it was first introduced and with the benefit of extensive committee hearings, reports, and congressional debate, the proposed ERA was sent to the State legislatures for ratification. The objectives of the Equal Rights Amendment were made clear by its congressional proponents and expressed in the majority report of the Senate Judiciary Committee: The basic principle on which the Amendment rests may be stated shortly: sex should not be a factor in determining the legal rights of men or of women. The Amendment thus recognizes the fundamental dignity and individuality of each human being. The Amendment will affect only governmental action; the private actions and the private relationships of men and women are unaffected. -7 The basic principle of the ERA, in short, is not that men and women are the same, but that the law cannot treat them differently solely because of their sex. This principle of equal justice before the law has led to lengthy and often emotional debate since Congress sent the ERA to the State legislatures for ratification. Much of this debate has departed totally from the subject of sex equality and the legal status of women, with some opponents of the constitutional amendment charging that it would endanger our form of government, threaten major religious institutions, or require women to leave the home and find jobs, men and women to share "coed bathrooms," and the States to recognize homosexual marriages. -8 Such changes will not result from the Federal Equal Rights Amendment, which courts will interpret with the benefit of a lengthy legislative history that clearly refutes these arguments. Indeed, such changes have not resulted from the equal rights provisions patterned after the Federal ERA that have been added to State constitutions. -9 These arguments have persisted, however, although they are clearly refuted by the facts. Despite the delay in final ratification, public opinion polls have shown that the ERA has strong national support. A recent Gallup poll reported that 58 percent of the American public supports ratification and only 31 percent are opposed. -10 Even in Missouri, one of the States that has not as yet ratified the amendment, a St. Louis Globe-Democrat poll in 1977 showed that 60 percent of the voters favored ratification and only 27 percent were opposed. -11 As of this date, 35 States (representing 72 percent of the U.S. population) have ratified the Equal Rights Amendment, 3 short of the number required to make it part of the Federal Constitution. The joint resolution with which Congress submitted the ERA to the State legislatures set 7 years as the period within which ratification should be completed. -12 On August 15, 1978, however, the House of Representatives approved a 39-month extension of the March 22, 1979, deadline.13 The Senate approved the extension on October 6, 1978. -14 Testifying in support of the then proposed extension, Civil Rights Commission Chairman Arthur Flemming and Commissioner Frankie Freeman stated that the ERA is as relevant and important today as it was in 1973 when the Commission first supported its ratification. At that time, the Commission concluded: the Equal Rights Amendment will provide a needed constitutional guarantee of full citizenship for women, and will assure the rights of both women and men to equal treatment under the laws. Ratification of the ERA is an important appropriate means of alleviating sex discrimination--just as the adoption of the 13th and 14th Amendments was vital to the cause of racial equality. . .[and] is an essential step toward meeting this nation's stated goal of equal opportunity for every citizen. -15 The purpose of this statement on the Equal Rights Amendment is to reaffirm the Commission's belief that attainment of full, equal rights for women and men requires ratification of the proposed amendment. The need for the ERA is at least as great today as it was when Congress proposed the amendment to the States in 1972. Measured by any standard, gender lines have not been erased, and the history of unequal treatment of men and women has not been adequately redressed under existing law. -16 Moreover, as a result of experiences under State constitutional amendments virtually identical to the proposed Federal amendment, it is even clearer now than it was in 1972 that the ERA is the appropriate remedial action to address this inequality and assure women and men equal justice before the law. -17 In the light of this knowledge, and pursuant to its jurisdiction to study discrimination on the basis of sex, the Commission firmly endorses the addition of the Equal Rights Amendment to our Federal Constitution. NOTES 1. H.R.J. Res. 208. 92d Cong.. 1st sess. 86 Stat. 1523 (1971). 2. Written statement submitted by Rep. Barbara Jordan to the Subcommittee on Civil and Constitutional Rights. House Committee. on the Judiciary. May 18, 1978. 3. National Commission on the Observance of International Women's Year. "...To form a More Perfect Union..." 374 (1976) (hereinafter cited as More Perfect Union); see J. Hole and E. Levine, Rebirth of Feminism 54 (1971). 4. See discussion infra. ch. 2. See also Minor v Haspersett 88 U.S. (21 Wall) 162, 168 (1874). 5. S. Rep. No. 92-689, Senate Committee on the Judiciary, 92d Cong., 2d sess., 45 (1972) (hereinafter cited as Senate Report). 6. 117 Cong. Rec. 35815 (1971); 118 Cong. Rec. 9598 (1972). 7. Senate Report, supra, at 2. 8. See J. Herbers, "Equal Rights Amendment is Mired in Confused and Emotional Debate," New York Times, May 28. 1978, at 1. 9. See discussion infra, ch. 3. Fourteen States have added equal rights provisions to their constitutions since 1970: Alaska, Colorado, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Montana, New Hampshire, New Mexico, Pennsylvania, Texas, Virginia, and Washington. Nine of these closely resemble the Federal amendment: Colorado, Hawaii, Maryland, Massachusetts, New Hampshire, New Mexico, Pennsylvania, Texas, and Washington. Utah and Wyoming adopted constitutional provlsions regarding sex equality near the end of the 19th century. 10. "Poll Finds 58% Favor Rights Proposal...," New York Times, July 16, 1978. 11. See St. Louis Globe-Democrat, Dec 28. 1976, at A-4 12. The amendment was proposed by joint resolution: Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress.... H.R.J. Res. 208, 92d. Cong., 1st sess., 86 Stat. 1523 (1971). 13. 124 Cong. Rec. H 8665 (daily ed. Aug. 15, 1978). 14. 124 Cong. Rec. S 17318 (daily ed. Oct. 6, 1978). 15. U.S. Commission on Civil Rights, Statement of the U.S. Commission on Civil Rights on the Equal Righls Amendment (1973). 16. See discussion infra, ch. 2. 17. See discussion infra, ch. 3.