ERA Redux, 2023 Style

Mary E. Hunt

February 28, 2023


            The Senate Judiciary Committee  held a hearing on Tuesday, February 28, 2023 on “The Equal Rights Amendment: How Congress Can Recognize Ratification and Enshrine Equality in Our Constitution” in the Dirksen Senate Office Building.

Democratic Senator Dick Durbin from Illinois presided; Republican Senator Lindsey Graham from Georgia is the ranking member. Graham quoted Ruth Bader Ginsberg out of context when she said that it would be important for the process of ratification to start anew rather than, as is now favored by pro ERA people, the ratification being accepted as law. Graham’s analysis was far from the spirit of what RBG was saying, and it was repeated in the same disingenuous way by several other speakers. Graham made clear over the course of the hearing that there is no way to get 60 votes in the Senate for the ERA to pass again. So he was happy to offer the RBG option, knowing full well that it would not work in the foreseeable forever. Disingenuous indeed.

The Senators took testimony from two panels: Panel 1 was comprised of Senators Ben Cardin (D-MD) and Lisa Murkowsi (R-AK) who reintroduced the Amendment, and Cindy Hyde-Smith (R-MS) who opposed it. At issue is really whether the Amendment is now already ratified because both houses and 38 states have agreed to it, or whether the fact that several states only agreed after the seven year deadline (and subsequent extension) had passed. Several states have rescinded their votes, but it is not clear what that means given dueling interpretations of the Preamble and of the Amendment itself.

Panel 2 included among others Julian Stratton, Lt. Gov of Illinois; Kathleen Sullivan, a constitutional lawyer from Los Angeles; Thursday Williams, a student at Trinity College in CT and former Broadway cast member of “What the Constitution Means to Me”; and Jennifer Braceras, a constitutional lawyer from the Independent Women’s Law Center. Lt. Gov. Stratton was impassioned in her support while Sullivan emphasized the need to nationalize laws so rights are not state-specific, a cautionary tale post-Dobbs. Williams spoke to the concerns of young women, especially women of color, who are less worried about the men on women’s sports teams that had Jennifer Braceras’ hair on fire, and more concerned about the bread-and-butter issues of jobs and salaries.

Just as drinking fountains were never the real issue in civil rights, same-gender rest rooms are not the real issue with the ERA. Equality, not sameness, is in the balance. The courts will litigate exactly what that means, but to enshrine the principle in the Constitution like most civilized countries do is crucial to 21st century American democracy.

Other Senators who raised questions and offered ideas included Amy Klobuchar (D-MN), Richard Blumenthal (D-CT), Alex Padilla (D-CT), Peter Welch (D-VT), Charles Grassley (R-IA), Ted Cruz (R-TX), and Mike Lee (R-UT).

It is clear that the context in which the ERA is being debated has changed materially. In the 1970’s and early 1980’s approval was won through bi-partisan efforts. Little of that collegiality exists today. Definitions of women and men were simpler then. Trans and non-binary people bring important new realities to the conversation.

Opposition to the ERA now includes young people, especially young women, who turned out in numbers wearing “Stop ERAsing Us” tee shirts. It isn’t quite clear what notion of womanhood they seek to hold onto, but Phyllis Schlafly’s spirit hovers where Koch Brothers money spends.

Several supporters in the audience rose to express their views that the hearings were a sham, that the ERA had already passed, that President Biden should simply publish it since it has been ratified by 38 states. They were escorted, read: dragged, out by police. ERA proponents see many ways to get this job done.

A number of the issues that were pending in the 1970s are now part of the social fabric including women in combat and same-sex marriage. But the reversal of Roe in Dobbs and subsequent laws that further diminish women’s reproductive agency show the need for more protections, and even those may not be enough. The ERA’s symbolic value is more important than ever, and its potential to provide real protections is critical if young women and those who follow them are to be full citizens of a constitutional democracy.

A Senate vote is promised by Senator Chuck Schumer (D-NY). This hearing made clear that the struggle is still very much uphill.