Part I: Why an equal rights amendment

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The right thing to do: equality for all

Equality of rights, regardless of sex, is a fundamental human right that belongs in the Constitution, just like other fundamental rights such as freedom of speech. When the Founding Fathers proposed and the people ratified the Bill of Rights, they could not foresee how those rights would manifest over time, yet they understood the necessity of guaranteeing these fundamental rights to sustain a democratic republic. 


Today, most Americans believe that equality of the sexes belongs in the Constitution.[1] The American Bar Association supports ratification of the Equal Rights Amendment.[2] 

Most importantly, over 80% of Arizona voters believe the legislature should ratify the Equal Rights Amendment. 


These convictions cross party lines. Although today many view the Equal Rights Amendment as a Democratic issue, it was the Republican party that first embraced the amendment in its 1940 party platform. 

    

[1] Americans – by 94% -- Overwhelmingly Support the Equal Rights Amendment (ERA),  https://www.prnewswire.com/news-releases/breaking-americansby-94---overwhelmingly-support-the-equal-rights-amendment-era-300286472.html


[2] ABA Resolution adopted by the House of Delegates, Feb. 8, 2016.

The next step in our history of correcting inequalities

The history of the United States shows that Americans have consistently valued equality, just not always understood who was entitled to equal rights. Once a significant number of Americans identified a class of people who did not enjoy civil rights, the Constitution was amended to correct this omission. 

In the eighteenth century, the Founding Fathers did not count African Americans as full human beings, and they did not view any women as citizens enjoying the same rights as landed men. The famous English jurist captured the perspective of the day among educated landed men: “The very being or legal existence of the woman is suspended during the marriage.” That is, the husband owned his wife’s body, property, and children. 


Over subsequent years that included a war that almost destroyed the Republic, Americans came to realize that a true democratic republic could not deny citizenship rights to former enslaved people and their descendants. The Civil Rights Amendments were introduced by Congress, ratified by legislatures of three-fourths of the states, and incorporated into the Constitution. 

At the same time that Americans advocated and then adopted the Civil Rights Amendments, many women and men promoted the concept that all people, not just men, should enjoy equal rights. This ideal was rejected at the time the Thirteenth, Fourteenth, and Fifteenth Amendments were adopted. 

Decades later (in between the adoption and repeal of a constitutional amendment barring the manufacture, sale, and transportation of intoxicating liquors), Congress proposed and the states ratified the right of United States citizens to vote, regardless of sex. When this suffrage amendment became valid as the Nineteenth Amendment of the Constitution.


Sooner or later, one of the unratified states will ratify the Equal Rights Amendment and become the last state necessary to meet the Constitutional threshold of ratification by the legislatures of three-fourths of the states. By becoming the 38th and last state necessary to ratify the Equal Rights Amendment, Arizona could regain her place in the sun as it once was a beacon for women’s rights. 

Protection against erosion of women’s rights

The Equal Rights Amendment is necessary to protect against erosion of women’s rights. Over the last fifty years, Congress has enacted numerous statutes protecting women’s rights, and states have, for the most part, abolished laws discriminating on the basis of sex, especially in the contexts of property and family law. The Supreme Court came to recognize that government discrimination on the basis of sex violated the Constitution unless the government could establish it had an important interest in doing so and its discriminatory action is substantially related to that interest. This judicial standard was used to strike down Virginia’s policy of admitting only males to the Virginia Military Institute.[1] 

Some would argue that these statutes and judicial standards do not go far enough. Even if they do, however, statutes can be repealed or modified, and court decisions can be repealed or retreated from. Neither statutes nor judicial rulings are as enduring as a Constitutional Amendment. Women’s enjoyment of equal citizenship rights should not depend on who sits in the legislatures and courts.


There are signs that some in power would reverse the gains made by the United States in achieving equality of rights. For example, Secretary of Defense Mattis, in speaking at VMI in September 2018, expressed some skepticism of the military’s policy of allowing women to serve in combat.[2] Women in the military continue to struggle for equal treatment, access to promotion, and justice. 


In November 2018, a district court ruled that Congress lacked the authority to ban the harmful practice of female genital mutilation even though Congress has the power to enact healthcare legislation and regulate interstate commerce.[3] 


Complacency with the status quo risks a return to a society in which women’s roles and opportunities were more limited than they are now while their family responsibilities remain the same or increase. Specifically, we risk keeping women as second-class citizens in the public and economic spheres while demanding more and more of them within the private sphere, all without adequate compensation or recognition of their critical roles. 


All citizens of the United States should enjoy equal citizenship stature unless they abuse that right. The Equal Rights Amendment is necessary to assure that equal citizenship will not be denied on account of sex. 

    

[1] See United States v. Virginia, 518 U.S. 515 (1996).


[2] See Remarks by Secretary Mattis at the Virginia Military Institute, Lexington, Virginia, https://dod.defense.gov/News/Transcripts/Transcript-View/Article/1645050/remarks-by-secretary-mattis-at-the-virginia-military-institute-lexington-virgin/


[3] See United States v. Nagarwala, ___ F. Supp. 3d ___, No. 17-CR-20274, 2018 WL 6064968 (E.D. Mich. Nov 20, 2018).

Consistency of judicial standards

Government discrimination on the basis of race, national origin, and sex should be required to meet the same standard to pass constitutional muster. But they do not. With respect to race, discrimination is prohibited unless the government proves its discriminatory classification was narrowly tailored to serve a compelling government interest. Governments must meet this same standard for its classifications on the basis of national origin as well as race. Government action that violates individual fundamental rights, such as freedom of religion, must also meet this standard. With this high standard, it is very difficult for the government to discriminate on the basis of race, national origin, or religion. 


Unlike race and national origin, sex, is not a proscribed classification. The state and federal governments may discriminate on the basis of sex so long as they can demonstrate an “exceedingly persuasive justification.” Classification on the basis of sex does not violate the Constitution so long as the government has an important interest in doing so and its discriminatory action is substantially related to that interest.[1] 


Why do courts impose one standard to test the constitutionality of government classification on the basis of race or national origin and a different one to sex? We do so because the Constitution does not prohibit sex discrimination. If the Equal Rights Amendment is added to the Constitution, then the Constitution will prohibit sex discrimination. With that addition, sex becomes, like race and national origin, a proscribed classification, and courts will test the constitutionality of government classifications on all of these bases by applying the same high “strict scrutiny” standard. 


Court decisions that likely would have come out differently had the Equal Rights Amended been part of the Constitution at the time include Nguyen v. INS, which upheld a law that made it more difficult for a child born abroad to a male U.S. citizen than a child so born to a female U.S. citizen.[2] 

    

[1] See United States v. Virginia, 518 U.S. 515 (1996).


[2] See Nguyen v. INS, 533 U.S. 53 (2001).

Increased efficiency

Enshrining Equal Rights in the Constitution will enhance government and industry efficiency. Efficiency is the good use of resources in a way that does not waste any. Our current system is not fully harnessing the strengths that women have to offer. As a result, we are wasting valuable resources that could otherwise be used to advance our nation and its economy. 


The Equal Rights Amendment will not effect immediate changes in the status of women, nor will it reach directly into the private sector. But ratification will be an important statement about equality as a principle that the private sector cannot ignore. 


More significantly, the Equal Rights Amendment will affect federal and state governments, which collectively comprise our country’s largest employer, and employ a significant portion of Arizonans. In turn, how federal and state governments treat women will directly impact the overall employee marketplace. 


Both the principle of equality and government action supporting equality will coalesce toward the eradication of sex discrimination in government and the private sector. Valuable resources will not be discounted solely because of sex.

II. The ERA Will Not Erase Differences Between the Sexes

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“The Equal Rights Amendment is not a unisex amendment.”[1] Ratification will not eradicate the differences between the sexes.  Moreover, the Equal Rights Amendment will assure that government actions are based on compelling reasons instead of sweeping generalizations about the sexes. 


Just like other constitutional rights, rights established by the Equal Rights Amendment are not absolute. For example, we see that the First Amendment protects freedom of expression, but it does not bar the government from outlawing yelling “FIRE” in a crowded theater. Likewise, the Equal Rights Amendment will not completely bar the government from making sex-based classifications. 

We must also realize, however, that there are spheres of our lives where segregation by sex may disappear, and rightly so. As discussed below, the Equal Rights Amendment may end segregation of the sexes where the government is simply using sex as a proxy for other attributes. 

    

[1] Ruth Bader Ginsburg, The Equal Rights Amendment is the Way, 1 Harv. Women’s L. J. 19, 21 (1978). Ginsburg continued: The Equal Rights Amendment “does not require similarity in result, parity, or proportional representation. It simply prohibits government from allocating rights, responsibilities or opportunities among individuals solely on the basis of sex.”

Sex-segregated facilities

Hospitals, schools, prisons, jails, and other government agencies can continue to maintain or operate sex-segregated facilities as long as the government can show that the segregation is narrowly tailored to achieve a compelling government interest, such as safety or security, or otherwise survive Constitutional scrutiny by the courts. Sex segregation in such facilities may also be protected by privacy rights. 

Sex-segregated activities, including sports

Ratification of the Equal Rights Amendment may have an impact on sex-segregated activities such as interscholastic and intercollegiate sports. Many states already allow girls to try out for boys’ teams, and at least one state, Massachusetts, allows boys to try out for girls’ teams where there is no male-team equivalent.[1]


In Massachusetts, the state’s Supreme Judicial Court applied strict scrutiny and concluded that barring a boy from playing on a girls’ field hockey team violated the state’s Equal Rights Amendment. Presumably, strict scrutiny would apply to challenges based on the federal Equal Rights Amendment, and programs that segregate the sexes would be prohibited unless the government established that the discriminatory action was narrowly tailored to achieve a compelling government purpose. 

Schools and colleges can and should develop programs that segregate on the basis of ability, not sex. Segregating simply on the basis of sex may be administratively easy, but there are ways that programs can meet the goals of competitiveness, safety, and opportunity such as tiered programs based on abilities and other non-gendered classifications, with outlets to assure opportunities for all. Ultimately, programs based on abilities, strength, size, and other characteristics will often result in single-sex teams, but this segregation will not be the result of sex discrimination. 


We know that not all boys and men are bigger, stronger, and faster than their female counterparts. We know that not all boys and men perform better than all females. We know that some males need more protection than some females. 


Using sex as a proxy for other characteristics is not fair to members of any sex. 

    

[1] See Commonwealth by Packel v. Pennsylvania Interscholastic Athletic Ass’n¸ 334 A.2d 839 (Pa. Commw. Ct. 1975) (holding unconstitutional a rule excluding girls from boys’ teams); Darrin v. Gould, 540 P.2d 883 (Wash. 1975) (same); Attorney Gen. v. Mass Interscholastic Athletic Ass’n, 398 N.E. 2d 284 (Mass. 1979) (declaring rule providing strict segregation of sports teams invalid under state Equal Rights Amendment).

Set-asides and preference programs

The Equal Rights Amendment should not eliminate government programs such as set-asides and preference programs for women-owned businesses as long as the preference programs are not solely based on gender classifications. Courts have upheld preference programs against racial challenges where eligibility was not solely dependent on race.   


For example, in Rothe Development, Inc. v. Dep’t of Defense, the D.C. Circuit upheld the constitutionality of the Small Business Administration’s (“SBA’s”) 8(a) program against a challenge that it discriminated on the basis of race.[1] The Supreme Court declined to hear the case.


Under the SBA’s 8(a) program, “socially and economically disadvantaged” small businesses are eligible to compete in sheltered markets for government contracts. This arrangement expands opportunities for small businesses to be awarded government contracts. The statute establishing this program defines “socially disadvantaged individuals” as those “who have been subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities.” 


Rothe challenged Section 8(a) on the grounds that it contained an unconstitutional race-based classification that hindered its ability to compete with minority-owned businesses for government contracts. 

The D.C. Circuit disagreed. It concluded that strict scrutiny was not applicable because Section 8(a) “uses facially race-neutral terms of eligibility to identify individual victims of discrimination, prejudice, or bias, without presuming that members of certain racial, ethnic, or cultural groups qualify as such.”

By analogy, statutes using facially sex-neutral terms of eligibility may not be subjected to strict scrutiny and will, therefore, be more likely to survive constitutional challenges.


Eligibility for programs that benefit women-owned businesses solely on the basis of sex, such as the Disadvantaged Business Enterprise Program, will have to be amended to include other criteria such as economic disadvantage or historical discrimination. Alternatively, statutes that discriminate on the basis of sex must be supported by a compelling government interest and be narrowly tailored to serve that interest.

    

[1]  See Rothe Development, Inc. v. Dep’t of Defense, 836 F.3d 57 (D.C. Cir. 2016).

Insurance

Insurance rates are regulated by the states. So long as rates are determined by facts other than sex, no problems will ensue. 

Public nudity

The Equal Rights Amendment will not necessarily render public nudity statutes unconstitutional. The Supreme Court has upheld enforcement of public nudity (or indecency) statutes against First Amendment challenges.[1] Courts may, by analogy, apply the reasoning in these decisions to uphold nudity statutes against challenges brought under the Equal Rights Amendment. 


To test whether a government action violates First Amendment rights, courts apply what is called “strict scrutiny.” Under this test, the government must show it had a compelling government purpose for its action and that the action was narrowly tailored to serve that purpose. The Supreme Court has developed less stringent tests to apply to commercial, symbolic, and other types of speech. 


At issue in Barnes was enforcement of Indiana’s public indecency statute against nude dancers. The Supreme Court viewed nude dancing as expressive conduct. But it treated this expressive conduct as symbolic speech. Instead of applying strict scrutiny, the Court applied an intermediate scrutiny and asked whether the enforcement of the statute furthered a substantial government interest, whether that interest was unrelated to suppressing speech, and whether the restriction was no greater than necessary to further the government interest. Under this test, Indiana’s enforcement of its public indecency statute was upheld.


Similarly, statutes and ordinances barring public nudity may survive constitutional scrutiny. Under the rationale of Barnes, these acts could be deemed constitutional under an intermediate level of scrutiny. The test could require, for example, that the government show that its enforcement furthered a substantial government interest; the government’s justification did not rest on overbroad generalizations about the different talents, capacities, or preferences of males and females;[2] and the restriction was no greater than necessary to further the government interest.


It should be noted that the Supreme Court Justice William Rehnquist, writing the plurality opinion in Barnes, approved public indecency statutes as “reflect[ing] moral disapproval of people appearing in the nude among strangers in public places.” In Barnes, Justice Rehnquist stated: 


"Public indecency statutes of this sort are of ancient origin, and presently exist in at least 47 States. Public indecency, including nudity, was a criminal offense at common law, and this Court recognized the common law roots of the offense of "gross and open indecency" in Winters v. New York, 333 U.S. 507, 515 (1948). Public nudity was considered an act malum in se. Le Roy v. Sidley, 1 Sid. 168, 82 Eng. Rep. 1036 (K.B.1664)."


Although we cannot say for sure how the courts will rule, the Supreme Court’s upholding enforcement of nudity statutes against First Amendment challenges may provide a road map for states and localities to enforce public nudity ordinances.

  
   

[1] See Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (upholding enforcement of Indiana statute requiring nude dances to wear “pasties” and a “G-string” when they dance); City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) (same).


[2] See United States v. Virginia, 518 U.S. 515 (1996) (applying intermediate scrutiny to test the constitutionality of Virginia’s banning women from VMI). 

Part III. Equality Advancements Since the 1970s

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Prior to the women’s movement of the 1970s, many more statutes and government practices discriminated on the basis of sex than do today. Advances against sex discrimination were made through courts and state and federal legislatures.


In the waning days of 1971, the Supreme Court held that an Idaho law that automatically chose men over women to administer estates was based solely on a discrimination prohibited by the Equal Protection Clause of the Fourteenth Amendment.[1]  In 1973, a married female Air Force Officer sought increased benefits for her husband and successfully challenged a statute that presumed military wives were dependent on husbands but husbands were not dependent on their wives.[2] In 1975, ruling in favor of a man, the Court held that the Social Security Administration could not differentiate among covered employees solely on the basis of sex.[3] In 1979, the Court held that a sex-based alimony statute violated the Equal Protection Clause of the Fourteenth Amendment.[4]


On the legislative side, Congress had passed the Employment Protection Act in 1964 and the Civil Rights Act of 1964, but it was not until 1972 that Congress gave teeth to Title VII of the Civil Rights Act by empowering the Equal Employment Opportunity Commission (EEOC) to initiate litigation and define “discrimination.” 


During the 1970s and 1980s statehouses also took up amending statutes that discriminated on the basis of sex. Property, alimony, and child custody laws were changed. 


Resistance to eliminating sex discrimination in the public sphere continued, however, and it was not until 1996 that Virginia was forced by a Supreme Court decision to allow women to attend its state-funded military college, the Virginia Military Institute.[5] 


Today, some resisting the Equal Rights Amendment have claimed, anachronistically, that ratification of the Equal Rights Amendment will hurt women by diminishing their social security benefits, weakening their position in divorce and child custody disputes, and requiring them to register for the draft. These arguments are unfounded.

    

[1] See Reed v. Reed, 404 U.S. 71 (1971).


[2] See Frontiero v. Richardson, 411 U.S. 677 (1973).


[3] See Weinberger v. Wiesenfield, 420 U.S. 636 (1975). 


[4] See Orr v. Orr, 440 U.S. 268 (1979).


[5] See United States v. Virginia, 518 U.S. 515 (1996).

Social Security

As mentioned above, the Social Security Administration may no longer differentiate among covered employees solely on the basis of sex.[1]

    

[1] See Weinberger, 420 U.S. 636. 

B. Marital Property, Alimony, Child Support, & Child Custody

Arizona’s domestic relations statutes no longer differentiate on the basis of sex. In determining both equitable distribution of property and spousal support, Arizona courts must consider a number of statutory factors, none of which is sex. Similarly, courts must apply statutory child support guidelines or, if the court deviates from the guidelines, it musts make written findings considering specified statutory factors, none of which includes sex. In determining custody and visitation of a minor child, the court must give primary consideration to the best interest of the child. To determine the best interests of the child for custody or visitation purposes, the court must consider a number of statutory factors, and, as between parents, there is no presumption or inference of law in favor of either. 

The Draft

Women are already eligible to be drafted. In the last few days of World War II and were nearly drafted in the last couple of days of WWII, as nurses.[1] 


Requiring both men and women to register for the draft is not dependent on passage of the Equal Rights Amendment.  Already, in October 2017, the Pentagon recommended that women should register with the selective service.[2]


Regardless of ratification of the Equal Rights Amendment, a reinstated draft likely will include everyone, not just men.  Conscripting only men into our military force, currently comprised of both male and female volunteers, would be unreasonable and antithetical to defense needs and morale.  Women have proven their worth in our modern military and in a time of war, if a draft were necessary, our military would want the very best our country has to offer, which would include wom

  
   

[1] Joseph Connor, Drafting Women? HistoryNet (Aug. 6, 2016), http://www.historynet.com/drafting-women.htm.


[2] Julia Manchester, Pentagon recommends requiring women to register for the draft, The Hill (Oct. 25, 2017), http://thehill.com/policy/defense/357055-pentagon-recommends-requiring-women-to-register-for-the-draft.

Part IV. The ERA Is Not a STEALTH Vehicle for Abortion

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Abortion access is legal in the United States, and the Equal Rights Amendment would not alter that. The amendment will not change the existing Constitutional framework under Roe v. Wade[1] and Planned Parenthood v. Casey.[2] Under current law, the right to access abortion procedures is grounded in constitutional privacy rights, not equality rights.[3]  


Some have argued that the Equal Rights Amendment will serve as a basis for challenging restrictions on abortion procedures, but that basis already exists. In the words of Justice Ginsburg, legal challenges to undue restrictions on abortion procedures “center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”[4] As recently as 2016, in Whole Woman's Health v. Hellerstedt, the Supreme Court ruled that Texas could not place restrictions on the delivery of abortion services that create an undue burden for women seeking an abortion.[5]


Some have argued that the Equal Rights Amendment is a Trojan Horse encapsulating abortion rights. But, with or without an Equal Rights Amendment the Supreme Court continues to rule that restricting abortion access is unconstitutional. Proponents of this argument refer to cases where courts required states to pay for “medically necessary” abortion procedures if the states paid for all other “medically necessary” procedures.[6] In other words, under these decisions, a state cannot have a policy of covering all medically necessary procedures and then single out for exclusion medically necessary procedures that pertain only to women. These decisions do not rule on the legality or illegality of abortion procedures.


The Equal Rights Amendment will not operate in a vacuum. As is so often the case, courts and legislatures will have to balance competing rights, much as the Supreme Court in Roe balanced the right to privacy against states’ obligations to protect the health of its citizens. There are 24 states that have equal rights amendments. In none of those states is abortion-on-demand without restrictions the law of the land. That scenario will not play out on the national stage, either. 


The Equal Rights Amendment will provide a basis for curbing pregnancy discrimination and the incidence of miscarriages caused by failure to accommodate pregnant women’s health needs.


In contemplating abortion, we should not forget about the miscarriages caused by women’s having to work without their employers’ accommodating their health needs as instructed by their physicians.


Women who need to keep their jobs are sometimes forced to choose between performing their usual functions and complying with their physicians’ care instructions. The results can be devastating, with women miscarrying while at work.[7] 


Under the current legal framework, without the Equal Rights Amendment, judicial relief for women who seek work accommodations on account of pregnancies require that women prove they were being treated differently than men who were similarly situated. This standard is virtually impossible for women to meet. To illustrate, a workplace policy that limits the employer’s obligation to accommodate an employee’s injury only if the injury originated at work will not give rise to an equal protection claim for failure to accommodate limitations due to pregnancies. 


The Equal Rights Amendment will prohibit the federal and state governments from discriminating on the basis of sex. With this mandate, government agencies should provide a new legal framework in which women who require accommodation because of pregnancy no longer have to choose between work and bearing children. 

Although the Equal Rights Amendment relates only to government – as opposed to private sector – action, we believe the solutions the amendment provides in the public sector will translate to voluntary changes in the private sector. The state and federal governments are outsized employers, and, as such, how they act will have a great impact on the employment market. With the largest employers protecting pregnancies, it will be easier for private employers to follow suit. 


Protecting working women and their pregnancies will help families too because most households in America depend, wholly or in part, on women’s income.

  
   

[1] See Roe v. Wade, 410 U.S. 113 (1973). 


[2] Planned Parenthood v. Casey, 505 U.S. 833 (1992). The decision in Casey prohibits states from enacting laws that place an undue burden on women seeking an abortion within the first trimester.


[3] See Roe, 410 U.S. 113. In Roe, the Supreme Court attempted to balance privacy rights against states’ rights and duties to protect the health of their citizens.


[4] Gonzales v. Carhart, 550 U.S. 124, 172 (2007) (Ginsburg, J., dissenting).


[5] Whole Woman's Health v. Hellerstedt, 579 U.S. ___ (2016).


[6] See, e.g., State v. Planned Parenthood of Alaska, 28 P.3d 904 (Alaska 2001); New Mexico Right to Choose/NARAL v. Johnson, 975 P.2d 841 (N.M. 1998); Doe v. Maher, 515 A.2d 134 (CT Super. Ct. 1986).


[7] See Jessica Silver-Greenberg & Natalie Kitroeff, Miscarrying at Work: The Physical Toll of Pregnancy Discrimination, NY Times (Oct. 22, 2018) (reporting on women who lost their pregnancies after denied requests for light duty accommodation

Part V. ERA: Deadline and Next Steps

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Deadline

There is no time limit set for ratification of amendments in Article V of the U.S. Constitution. Deadlines were only later introduced with the 18th Amendment (Prohibition), by Congress. At the time, since it was politically expedient, politicians wanted to pass the 18th Amendment. But, they did not want it to actually get ratified. Congress attached a seven-year deadline to prohibition as an attempted “poison pill.” However, they underestimated its wild popularity and just over two years later it was ratified and became part of the Constitution.  


Seven year deadlines then became a congressional trend, of sorts, and were imposed for all subsequent amendments after the 18th Amendment, with the exception of the 19th (suffrage). Thus, the original ERA ratification followed suit and the seven-year deadline was put in the preamble to the ERA, set originally to expire in 1979. Before that original deadline Congress put in passed, Congress chose to extend it to 1982, giving a total of ten years for the ratification process. The amendment fell just three states short of ratification in 1982. 


Arguably, since Congress itself imposed the original ERA deadline and only included it in the preamble to the amendment (not the actual text that the states voted to ratify), Congress can simply vote to eliminate or extend the deadline again. It already did so once in 1978, and thus eliminating the deadline could incorporate the final states’ ratifications and make the ERA part of our Constitution. 


There are two bills currently pending in the U.S. Congress to eliminate the ERA deadline, sponsored by Representative Jackie Speier of California in the House, and Senator Cardin of Maryland in the Senate. These ERA deadline elimination bills could pass quickly, given the right conditions in Congress. The deadline elimination issue could also appear before the courts.


In the case Dillon v. Gloss,[1] the U.S. Supreme Court ruled that setting a time limit for the ratification process, is up to Congress. In a later case, Coleman v. Miller,[2] the Supreme Court left it to Congress to decide the reasonableness of the length of the ratification period. In fact, in Miller, four justices signed a concurring opinion stating that Congress has “sole and complete control over the amending process, subject to no judicial review.”[3] 


Before Nevada ratified the ERA, a white paper was produced by the Congressional Research Service exploring whether the deadline precluded the ERA from being added to the Constitution, among other issues.[4] This paper was updated after Illinois ratified in 2018. Both concluded that the issues are complex, but the existence of the original deadline does not per se invalidate contemporary ERA ratifications.[5]  


On May 11, 2018 Virginia Attorney General Mark Herring weighed in on the deadline issue with a formal opinion. He said that regardless of what is going on in Congress, “…the lapse of the ERA’s original and extended ratification periods has not disempowered the General Assembly from passing a ratifying resolution.” His argument is bolstered by the fact that both Nevada (March 22, 2017) and Illinois (May 30, 2018) have ratified the ERA, exercising their state’s right to ratify under Article V of the Constitution. Given that these two states have ratified well beyond the 1982 deadline, it is clear that Arizona can follow suit. 

    

[1] 256 U.S. 368 (1921). 


[2] 307 U.S. 433 (1939).


[3] 307 U.S. 433 (1939) at 459 (Black J., concurring, joined by Roberts, Frankfurter, and Douglas, JJ.). 


[4] Thomas H. Neale. “The Proposed Equal Rights Amendment: Contemporary Ratification Issues,” Congressional Research Service, May 9, 2013.


[5] Thomas H. Neale. “The Proposed Equal Rights Amendment: Contemporary Ratification Issues,” Congressional Research Service, July 18, 2018.

Next Steps

The process for what happens after an amendment is ratified by the requisite number of states is laid out in U.S. law. 1 U.S.C. § 106(b) that states as follows:


Whenever official notice is received at the National Archives and Records Administration that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Archivist of the United States shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States. Thus, pursuant to 1 U.S.C § 106(b), the National Archives and Records Administration (“NARA”) is responsible for implementing the state ratification process for amending the Constitution. 

The Archivist has delegated many of the administrative aspects of this process to the Office of the Federal Register (“OFR”), who verifies and acknowledges the receipt of ratification documents and maintains custody of the documents until the amendment process is over (i.e., when it is adopted or fails).[1] As soon as the OFR verifies that it has received the requisite number of authenticated ratification documents (i.e., from 38 out of 50 states), the Archivist issues a formal proclamation certifying that the amendment, here the ERA, is valid and has become part of the Constitution.[2] The certification is then published in the Federal Register and U.S. Statutes at Large, and serves as official notice to the public that the amendment process has been completed.[3]


Congress may participate in a ceremonial signing of the certification or other ceremony as it has in the past, but the plain language of 1 U.S.C. § 106(b) indicates no further action by Congress is needed to affirm ratification of an amendment for it to be effective. Some argue the ERA will be effective and in full force as soon as the OFR verifies that it has received the 38th ratification, and is not contingent upon final certification by the National Archivist or any other federal official.[4] 


NARA has not made any statement to date regarding its position on the validity of the continued state ratification process of the ERA. However, the agency has taken the position that ratification by three-fourths of the states is all that is required for an amendment to become a part of the Constitution, and no further acts are necessary on the part of Congress or otherwise. [5] For example, in response to an October 25, 2012 letter from Congressman Carolyn Maloney (NY), David Ferriero, who is still the current Archivist of the United States, wrote the following:


"NARA’s [National Archives and Records Administration’s] website page “The Constitutional Amendment Process” (www.archives.gov/federal-register/constitution) . . . states that a proposed Amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the states, indicating that Congressional action is not needed to certify that the Amendment has been added to the Constitution. It also states that [the U.S. Archivist’s] certification of the legal sufficiency of ratification documents is final and conclusive, and that a later rescission of a state’s ratification is not accepted as valid."


These statements are derived from 1 U.S.C. 106b . . . Under the authority granted by this state, once NARA receives at least 38 state ratifications of a proposed Constitutional Amendment, NARA published the amendment along with a certification of the ratifications and it becomes part of the Constitution without further action by Congress. Once the process in 1 U.S.C. 106b is completed the Amendment becomes part of the Constitution and cannot be rescinded. Another Constitutional Amendment would be needed to abolish the new Amendment.[6]


The most recent amendment (27th) was ratified in the early 1990s, 203 years after it was proposed, though it never had any deadline attached to it. While Congressional action is not required to certify an amendment in the constitutional process, the issue of deadline remains a relevant one in the case of the ERA.  The Archivist may immediately certify the ERA, and if he does not the issue of deadline will then be resolved in likely a combination of the courts and/ or Congress. The imposition of a deadline by Congress in the preamble to the original ERA does not preclude its integration into the U.S. Constitution.

  
   

[1] “Constitutional Amendment Process,” www.archives.gov/federal-register/constitution (last accessed November 5, 2018); see also Research Department, Minnesota House of Representatives, “United States Constitutional Amendment Process,” p. 3 (April 2016).


[2] Id.


[3] Id.


[4] See 1 U.S.C. § 106(b); see also Dillon v. Gloss, 256 U.S. 268, 376 (1921) (That the Secretary of State did not proclaim [the Eighteenth Amendment’s] ratification until January 29, 1919, is not material, for the date of its consummation, and not that on which it is proclaimed, controls.”); United States ex rel. Widenmann v. Colby, 49 App. D.C. 358, 360 (D.C. 1920) (“Moreover, even if the proclamation was canceled by order of this court, it would not affect the validity of the [Eighteenth] amendment. Its validity does not depend in any wise upon the proclamation. It is the approval of the requisite number of states, not the proclamation, that gives vitality to the amendment and makes it a part of the supreme law of the land.”); Research Department, Minnesota House of Representatives, “United States Constitutional Amendment Process,” p. 13 (April 2016); Modern Constitutional Law § 37:25 (3rd ed.).


[5] See “The National Archives’ Role in Amending the Constitution,” www.archives.gov/publications/prologue/2017/spring/historian-27-amendment” (last accessed November 5, 2018); see also “Constitutional Amendment Process,” www.archives.gov/federal-register/constitution (last accessed November 5, 2018); www.equalrightsamendment.org/faq/ (last accessed November 5, 2018).


[6] www.equalrightsamendment.org/faq/ (last accessed November 5, 2018).

VI. WHY MEN SHOULD SUPPORT GENDER EQUITY

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Michael S. Kimmel, Ph.D. Department of Sociology State University of New York at Stony Brook

  

Just two months ago, people around the world celebrated International Women’s Day. Ninety-three years ago, the first official International Women’s Day was celebrated in Austria, Denmark, Germany and Switzerland, organized by the great German feminist Clara Zetkin, who wanted a single day to remember the 1857 strike of garment workers in the U.S. that led to the formation of the International Ladies Garment Workers Union. On March 19, 1911— the anniversary has changed since then—more than a million women and men rallied to demand the right to work, to hold public office and to vote.

Think of how much has changed in those 93 years! Throughout most, if not all of the industrial world, women have: gained the right to vote, to own property in their own name, to divorce, to work in every profession, to join the military, to control their own bodies, to challenge men’s presumed “right” to sexual access once married, or on a date, or in the workplace.


Indeed, the women’s movement is one of the great success stories of the twentieth century, perhaps of any century. It is the story of a monumental, revolutionary transformation of the lives of more than half the population. But what about the other half? Today, this movement for women’s equality remains stymied, stalled. Women continue to experience discrimination in the public sphere. They bump their heads on glass ceilings in the workplace, experience harassment and less-than fully welcoming environments in every institution the public sphere, still must fight to control their own bodies, and to end their victimization through rape, domestic violence, and trafficking in women.


I believe the reason the movement for women’s equality remains only a partial victory has to do with men. In every arena—in politics, the military, the workplace, professions and education—the single greatest obstacle to women’s equality is the behaviors and attitudes of men. I believe that changes among men represent the next phase of the movement for women’s equality—that changes among men are vital if women are to achieve full equality. Men must come to see that gender equality is in their interest—as men.


This great movement for gender equality has already begun to pay attention to the fact that men must be involved in the transformation.  The Platform for Action adopted at the Fourth World Congress on Women, in Beijing in 1995 said: “The advancement of women and the achievement of equality between women and men are a matter of human rights and a condition for social justice and should not be

seen in isolation as a women’s issue.” 


But why should men participate in the movement for gender equality? Simply put, I believe that these changes among men will actually benefit men, and that gender equality is not a loss for men,

 but an enormously positive thing that will enable us to live the kinds of lives we say we want to live. Indeed, gender mainstreaming is an idea whose time has come—for men.


In order to make this case, I will begin by pointing to several arenas in which women have changed so drastically in the past half-century, and suggest some of the issues I believe we men are currently facing as a result. First, women made gender visible. Women have demonstrated the centrality of gender in social life; in the past two decades, gender has joined race and class as the three primordial axes around which social life is organized, one of the primary building blocks of identity.


This is, today, so obvious that it hardly needs mentioning. Parliaments have Gender committees, and the Nordic countries even have Ministers for Gender Equality. Every university in the U.S. has a Women’s Studies Program. Yet we forget just how recent this all is. The first Women’s Studies program in the world was founded in 1972.


Second, women have transformed the workplace. Women are in the workplace to stay. Almost half the labor force is female. I often demonstrate this point to my university classes by asking the women who intend to have careers to raise their hands. All do. Then I ask them to keep their hands raised if their mothers have had a career outside the home for more than ten years without an interruption. Half put their hands down. Then I ask them to keep their hands raised if their grandmothers had a career for ten years. Virtually no hands remain raised. In three generations, they can visibly see the difference in women’s working lives.


Just 40 years ago, in 1960, only about 40% of European adult women of working age were in the labor force; only Austria and Sweden had a majority of working-age women in the labor force. By 1994, only Italy, Greece, Ireland, Luxembourg and Spain did not have a majority of working-age women in the labor force, and the European average had nearly doubled.


This has led to the third area of change in women’s lives: the efforts to balance work and family life. Once upon a time, not so long ago, women were forced to choose between career and family. But beginning in the 1970s, women became increasingly unwilling to choose one or the other. They wanted both. Could a woman “have it all?” was a pressing question in the past two decades. Could she have

a glamorous rewarding career and a great loving family?


The answer, of course, was “no.” Women couldn’t have it all because... men did. It is men who have the rewarding careers outside the home and the loving family to come home to. So if women are going to have it all, they are going to need men to share housework and childcare. Women have begun to question the “second shift,” the household shift that has traditionally been their task, after the workplace shift is over.


Finally, women have changed the sexual landscape. As the dust is settling from the sexual revolution, what emerges in unmistakably finer detail is that it’s been women, not men, who are our era’s real sexual pioneers. Women now feel empowered to claim sexual desire. Women can like sex, want sex, seek sex. Women feel entitled to pleasure. They have claimed their own sexual agency.  And men; what’s been happening with men while women’s lives have so completely transformed? Not very much. While some men have changed in some ways, most men have not undergone a comparable

revolution. This is, I think, the reason that so many men seem so confused about the meaning of masculinity these days.


In a sense, of course, our lives have changed dramatically. I think back to the world of my father’s generation. Now in his mid-70s, my father could go to an all-male college, serve in an all-male military and spend his entire working life in a virtually all-male working environment. That world has completely disappeared.


So, our lives have changed. But men have done very little to prepare for this completely different world. What has not changed are the ideas we have about what it means to be a man. The ideology of masculinity has remained relatively intact for the past three generations. That’s where men are these days: our lives have changed dramatically, but the notions we have about what it means to be a man remain locked in a pattern set decades ago, when the world looked very different.


What is that traditional ideology of masculinity? In the mid-1970s, an American psychologist offered what he called the four basic rules of masculinity:

1) “No Sissy Stuff.” Masculinity is based on the relentless repudiation of the feminine. Masculinity is never being a sissy.

2) “Be a Big Wheel.” We measure masculinity by the size of your paycheck. Wealth, power, status are all markers of masculinity. As a U.S. bumper sticker put it: “He who has the most toys when he dies, wins.”

3) “Be a Sturdy Oak.” What makes a man a man is that he is reliable in a crisis. And what makes him reliable in a crisis is that he resembles an inanimate object—a rock, a pillar, a tree.

4) “Give ‘em Hell.” Also exude an aura of daring and aggression. Take risks; live life on the edge. Go for it.


The past decade has found men bumping up against the limitations of that traditional definition, but without much of a sense of direction about where they might go to look for alternatives. We chafe against the edges of traditional masculinity, but seem unable or unwilling to break out of the constraints we feel by those four rules. Thus, the defensiveness, the anger, the confusion that is evident everywhere. These limits will become most visible around the four areas in which women have changed most dramatically: making gender visible, the workplace, the balance between work and home, and sexuality. They suggest the issues that must be placed on the agenda for men, and a blueprint for a transformed masculinity.


Let me use these rules of manhood alongside the arenas of change in women’s lives and suggest some of the issues I believe we are facing around the world today. First, though we now know that gender is a

central axis around which social life revolves, most men do not know they are gendered beings. When we say “gender,” we hear “women.” That gender remains invisible to men is a political process.


I often tell a story about a conversation I observed in a feminist- theory seminar that I participated in about a decade ago. A white woman was explaining how their common experience of oppression under patriarchy bound them together as sisters. All women, she explained, had the same experience as women, she said.


The black woman demurred from quick agreement. “When you wake up in the morning and look in the mirror,” she asked the white woman, “what do you see?”


“I see a woman,” responded the white woman hopefully.


“That’s the problem,” responded the black woman. “I see a black woman. To me, race is visible, because it is how I am not privileged in society. Because you are privileged by race, race is invisible to you. It is a luxury, a privilege not to have to think about race every second of your life.” I groaned, embarrassed. And, as the only man in the room, all eyes turned to me. “When I wake up and look in the mirror,” I confessed, “I see a human being—the generic person. As a middle-class white man, I have no class, no race and no gender. I am universally generalizable. I am everyman.”


Lately, I’ve come to think that it was on that day in 1980 that I became a middle-class white man, that these categories actually became operative to me. The privilege of privilege is that the terms of privilege

are rendered invisible. It is a luxury not to have to think about race, or class or gender. Only those marginalized by some category understand how powerful that category is when deployed against them.


While this story took place over 20 years ago, I was reminded of it recently when I went to give a guest lecture for a female colleague at my university. (We teach the same course on alternate semesters, so she always gives a guest lecture for me, and I do one for her.) As I walked in to the auditorium, one student looked up at me and said, “Oh, finally, an objective opinion!”


All that semester, whenever my female colleague opened her mouth, what this student saw was “a woman.” Biased. But when I walked in, I was, in this student’s eyes, unbiased, an objective opinion.  Disembodied Western rationality—standing right in front of the class! This notion that middle-class white men are “objective” and everyone else is “biased” is the way that inequalities are reproduced.

This is why I think it’s important that I wear a tie. For what garment could better illustrate disembodied Western rationality, the mind-body dualism, than a garment where one end is tied in a noose around

the neck and the other end points to the genitals?


Let me give you another example of how privilege is invisible to those who have it. Many of you have email addresses, and you write email messages to people all over the world. You’ve probably noticed that there is one big difference between email addresses in the United States and email addresses of people in other countries: your addresses have “country codes” at the end of the address. So, for example, if you were writing to someone in South Africa, you’d put “za” at the end, or “jp” for Japan, or “uk” for England (United Kingdom) or “de” for Germany (Deutschland). But when you write to people in the United States, the email address ends with “edu” for an educational institution, “org” for an organization, “gov” for a federal government office, or “com” or “net” for commercial internet providers. Why is it that the United States doesn’t have a country code?


It is because when you are the dominant power in the world, everyone else needs to be named. When you are “in power,” you needn’t draw attention to yourself as a specific entity, but, rather, you can pretend to be the generic, the universal, the generalizable. From the point of view of the United States, all other countries are “other” and thus need to be named, marked, noted. Once again, privilege is invisible. In the world of the Internet, as Michael Jackson sang, “We are the world.”


Becoming aware of ourselves as gendered, recognizing the power of gender as a shaping influence in our lives, is made more difficult by that first rule of manhood—No Sissy Stuff. The constant, relentless efforts by boys and men to prove that they are “real men” and not sissies or weak or gay is a dominant theme, especially in the lives of boys. As long as there is no adequate mechanism for men to experience a secure, confident and safe sense of themselves as men, we develop our own methods to “prove it.” One of the central themes I discovered in my book, Manhood in America was the way that American manhood became a relentless test, a constant, interminable demonstration.


The second arena in which women’s lives have changed is the workplace. Recall the second rule of manhood: Be a Big Wheel. Most men derive their identity as breadwinners, as family providers.  Often, though, though, the invisibility of masculinity makes it hard to see how gender equality will actually benefit us as men. For example, while we speak of the “feminization of poverty” we rarely “see” its other side—the “masculinization of wealth.” Typically, we express women’s wages as a function of men’s wages: in the E.U., women earn on average 83 cents for every dollar of men’s hourly wages. But what is concealed is what we might see if women’s wages were the norm against which men’s were measured. Men, on average, earn $1.20 for every dollar women earn. Now suddenly privilege is visible!


Women experience the glass ceiling—women are only 10% of all senior managers of U.S. Fortune 500 companies; only 3-5% of all senior managers in all U.S. companies. By contrast, men in “women’s” professions (say, librarian, nursery school teacher, nurse) ride a “glass escalator” to high-level managerial positions that will preserve their “masculinity.”


Usually we believe that our career trajectories are the results of our individual characteristics, not the characteristics of the organization. A recent doctoral dissertation in economics by Ulla Eriksson at the

University of Goteborg suggests otherwise. For two years, she followed five female and five male trainees in a large Swedish multinational corporation with 6,000 employees. All came from similar

backgrounds, had similar education and had similar goals and ambitions. All ten aspired to top management positions. After their training, they all still were similar. At the end of the time, all the

men and none of the women had entered the top management group.


Why? Eriksson posited that it is the business culture—a culture that values “face time” over actual performance, penalizing women who work from home with sick children; a culture that makes balancing work and family nearly impossible for women, and the criteria for success itself.


Now, remember, during the current economic downturn, fewer and fewer men are feeling much like big wheels. And here come women into the workplace in unprecedented numbers. Recently I appeared on a television talk show opposite three “angry white males” who felt they had been the victims of workplace discrimination. The show’s title, no doubt to entice a large potential audience, was “A Black Woman Took My Job.” In my comments to these men, I invited them to consider what the word “my” meant in that title, that they felt that the jobs were originally “theirs,” that they were entitled to them, and that when some “other” person—black, female—got the job, that person was really taking “their” job. But by what right is that his job? Only by his sense of entitlement, which he now perceives as threatened by the movement toward workplace gender equality.


These anecdotes illustrate what to me are the central issues involved in integrating gender into our workplaces. Typically, we think we can create gender equality through “gender neutral” policies -policies that do not consider gender in hiring, salary or promotion. But such gender neutral policies fail to take into account the ways in which the very criteria by which people are evaluated are also gendered; the ways that the assumptions about what constitutes effective performance, leadership, or initiative are gendered. Stated most simply, gender neutral policies aren’t gender neutral. They are in fact deeply gendered.


We need gender equal policies, not gender neutral policies. We are seen as gendered beings, and the processes by which we are evaluated are gendered. When Lise Meitner, the famed German physicist, gave her first lecture at the University of Berlin in 1922 on “The Significance of Radioactivity for Cosmic Processes,” the newspapers reported her topic as problems of “Cosmetic processes.” And there’s an old adage in organizational studies that a man is unsexed by failure, but a woman is unsexed by success. Ambition, competence, competitiveness—these are still coded as masculine. Don’t believe me? How many of the women in this room were ever told “don’t be so smart, or you won’t get married.” Now, how many men were told anything even remotely like that?


Gender equality in the workplace also requires that we address work- family balances and reorganize the workplace to accommodate both work and family life. But remember the third rule of manhood—“Be a Sturdy Oak.” What has traditionally made men reliable in a crisis is also what makes us unavailable emotionally to others. We are increasingly finding that the very things that we thought would make us real men impoverish our relationships with other men and with our children.

Fatherhood, friendship, partnership all require emotional resources that have been, traditionally, in short supply among men, resources such as patience, compassion, tenderness, attention to process. A “man isn’t someone you’d want around in a crisis,” wrote the actor Alan Alda, “like raising children or growing old together.”


In the United States, men become more active fathers by “helping out” or by “pitching in” or spending “quality time” with their children. Women in the U.S. and the E.U. still do about 80% of all housework and child care.


But it is not “quality time” that will provide the deep intimate relationships that we say we want, either with our partners or with our children. It’s quantity time—putting in those long, hard hours of thankless, unnoticed drudge work. It’s quantity time that creates the foundation of intimacy. Nurture is doing the unheralded tasks, like holding someone when they are sick, doing the laundry, the ironing, washing the dishes. After all, men are capable of being surgeons and chefs, so we must be able to learn how to sew and to cook.


We need dual career and dual career families. That men share housework and child care is crucial for gender equality. In organization after organization, we see the dilemmas of women trying to have it all. At Deloitte and Touche, a major consulting firm, the only women who got to be partners were the ones without families. Either they didn’t have kids, or their kids were grown, or they were divorced. In my own academic department, one renowned for its gender “equal”— i.e., neutral—policies, only one of the 10 tenured women faculty members has children—and she waited until they were grown before she returned to graduate school. All of the tenured men have children.


Well, now that I’ve told you about my department, let me ask you about yours: how many of the women in this room took some amount of parental leave, paid or, when their children were born? How many of the men did?


Workplace and family life are also joined in the public sphere. Several different kinds of policy reforms have been proposed to make the workplace more “family friendly”—to make the workplace more hospitable to our efforts to balance work and family. These reforms generally revolve around three issues: on-site childcare, flexible working hours, and parental leave. But how do we usually think of these family-friendly workplace reforms? We think of them as women’s issues. But these are not women’s issues, they’re parents’ issues, and to the extent that we, men, identify ourselves as parents, they are reforms that we will want. Because they will enable us to live the lives we say we want to live. We want to have our children with us; we want to be able to arrange our work days to balance work and family with our wives, we want to be there when our children are born.


On this score, Americans have so much to learn from Europeans, especially from the Nordic countries, which have been so visionary in their efforts to involve men in family life. In Sweden, for example, men are actively encouraged by state policies to take parental leave to be part of their children’s first months. Before the institution of “Daddy Days,” less than 20% of Swedish men took any parental leave at all. Today, though, the percentage of men who do has climbed to over 90%. That’s a government that has “family values.”


“Use or lose” parental leave policies, reduced working hours, career breaks—these are the reforms that parents need to balance work and family. For women to balance work and family has meant that they assert their workplace ambitions at home, that they make bargains with families, partners, husbands in order to pursue their careers, that they postpone or even forgo children in order to do that. Currently, best-sellers remind women of these painful choices and counsel them be “intentional” about children to snag a man and have their kids early and let the career chips fall where they may.


What women have become is “private careerists,” coming out of the closet as workers at home, and have begun to insist that their career ambitions be part of the negotiations about family time and place. To balance women being “private careerists,” men need, I believe, to proclaim a “public fatherhood.” Men need to assert in the workplace their desires to spend time with their families, to balance work and family life.


What does “public fatherhood” mean concretely? Several years ago, I did a study for the Harvard Business Review on men and parental leave. I found that in the 1% of U.S. corporations that offered unpaid parental leave, only 1% of male employees took it. You see, they said, there’s no demand.

When I interviewed men in these corporations, however, I heard a different story. When they told their supervisor, their manager or even their male colleagues that they were going to take parental leave, the other men responded “Well, I guess you’re not really committed to your career,” “We’ll put you on the daddy track,” or “You’ll never make partner in this law firm.”


You see, when women take parental leave, they’re seen as responding to a higher calling; when men take parental leave, they’re seen as henpecked and not committed to their careers. They must behave as if they had no other life, no family. In one recent study, a group of people, asked to be personnel managers, were given fabricated dossiers of potential job applicants. Then each “manager” gave his or her impression of the candidates and especially whether the applicant would make a good employee. Women who reported that they took family leave were generally seen positively. But the men who took leave for the birth of a child or to care for a sick parent were seen negatively, and rated as not seriously committed to their jobs.


So what did the men do? They disguised parental leave as something else—unused vacation time, comp time, sick leave. They went to their senior partner or manager and said, “My wife is going to have a baby next month. I am going to take my three weeks vacation then, and while on vacation I will get sick, so I will then have to take my three weeks of sick leave.” Their colleagues and supervisors winked and said “no problem, good luck.” In essence, these men took what I have no come to call “informal parental leave” because they were so eager to do so, but they also had to preserve their masculinity by appearing to be more concerned about their career.


We need these men to demand parental leave, we need policies that encourage and support it, and we need to change the culture of our organizations to support men taking parental leave—because ONLY when men share housework and child care can we have the kinds of lives we say we want to have, and ONLY when men share house work and childcare will women be able to balance work and family, be able to have it all. This, it seems to me, is the promise of gender mainstreaming.


Were our venue slightly different, I would take up the last arena of change for women, sexuality, but I think for today, I’m going to make one quick remark and conclude. It’s about rape and sexual assault. Nearly 20 years ago, anthropologist Peggy Reeves Sanday proposed a continuum of propensity to commit rape upon which all societies could be plotted—from rape-prone to rape free. (For the curious, by the way, the United States was ranked as a highly rape prone society, far more than any country in Europe; Norway and Sweden were among the most rape free.) Sanday found that the single best predictors of rape-proneness were (1) whether the woman continued to own property in her own name after marriage, a measure of women’s autonomy; and (2) father’s involvement in child-rearing, a measure of how valued parenting is, and how valued women’s work is.


Clearly here is an arena in which women’s economic autonomy is a good predictor of their safety—as is men’s participation in child-rearing. Those societies in which women are able to have their “private careers” and in which men express “public fatherhood” are the safest for women. If men act at home the way we say we want to act, women will be safer.


Let me conclude then. Rather than resisting the transformation of our lives that gender equality offers, I believe that we should embrace these changes, both because they offer us the possibilities of social and economic equality, and because they also offer us the possibilities of richer, fuller and happier lives with our friends, with our lovers, with our partners and with our children. We, as men, should support gender equality—both at work and at home. Not because it’s right and fair and just—although it is those things. But because of what it will do for us, as men. At work, it means working to end sexual harassment, supporting family-friendly workplace policies, working to end the scourge of date and acquaintance rape, violence and abuse that terrorize women in our societies. At home it means sharing housework and childcare, as much because our partners demand it as because we want to spend that time with our children and because housework is a rather conventional way of nurturing and loving.


If the goal is gender equality, the means is feminism. Feminism remains one of the world’s most powerful ideologies because it requires that we examine not just ourselves but our interactions and the

institutions in which we find ourselves, and that we understand these interactions and institutions as organized in a field of power. Feminism is about that critique, and it is about transformation.


The feminist transformation of society is a revolution-in-progress. For nearly two centuries, we men have met insecurity by frantically shoring up our privilege or by running away. These strategies have never brought us the security and the peace we have sought. Perhaps now, as men, we can stand with women and embrace the rest of this revolution—embrace it because of our sense of justice and fairness, embrace it for our children, our wives, our partners and ourselves. Today, we men are also coming to realize that gender equality is in our interests as men; that we will benefit from gender equality. That gender equality holds out a promise of better relationships with our wives, with our children and with other men. Nearly a century ago, an American writer wrote an essay called “Feminism for Men.” Its first line was this: “Feminism will make it possible for the first time for men to be free.”

AMERICAN BAR ASSOCIATION ADOPTED BY THE HOUSE OF DELEGATES

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FEBRUARY 8, 2016 RESOLUTION

   

RESOLVED, That the American Bar Association supports constitutional equality for women, and urges the extension of legal rights, privileges and responsibilities to all persons, regardless of sex. 


FURTHER RESOLVED, That the American Bar Association reaffirm its support of and affirmatively act toward the goal of the ratification of the Equal Rights Amendment to the U.S. Constitution.


FURTHER RESOLVED, That the American Bar Association calls on all bar associations to support and take up the pursuit of ratification of the Equal Rights Amendment to the United States Constitution. 

   

REPORT

   

The proposed Equal Rights Amendment states,

    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. 

Article V of the Constitution prescribes how an amendment can become a part of the U.S. Constitution. While there are two ways, only one has ever been used. All 27 successful amendments have been ratified after two-thirds of the House and Senate approved of the proposal and send it to the states for a vote. Then, three-fourths of the states (38 out of 50) were required to affirm the proposed amendment.[1]


ERA Background


The ERA was originally presented in 1923 by Alice Paul, a leader in the women’s suffrage movement who held three law degrees. The current text is modeled after the 19th Amendment, which Paul submitted it in 1943. 


While many aspects of the law have evolved to offer rights and protections to many in our society, basic legal protection against sex discrimination has not yet been realized and affirmed in the Constitution, even given the considerations of the 14th Amendment. The ERA would make clear that discrimination based on sex is not allowed in the courts. Its adoption would further send a strong message to lawmakers that the highest law of the land does not tolerate disparate treatment of men and women. 


Adoption of this resolution would mobilize the nation’s largest lawyers organization, and hopefully activate the local, county and state bar associations around the country, to pressure public officials to make this necessary change that champions the defense of liberty and the pursuit of justice that informs the democratic question for a “more perfect union.” Through a chorus of voices in the legal profession the mission of advancing equality under the law can be fulfilled. 


The ERA has a long, storied history in United States political discourse. A nearly successful effort to enact the amendment occurred in the 1970’s when the amendment reached a zenith of having the necessary congressional approval in both houses and the affirmation of 35 out of 38 states. It ultimately failed to receive any further support. Later, five states de-affirmed their prior approvals between 1973-79. 


The current version of the ERA gained passage by the required two-thirds majority on March 22, 1972. 

President Richard Nixon endorsed the ERA's approval upon its passage by the 92nd Congress.[2] The congressional approvals, including an extension resolution, contained an expiration clause, requiring that the ERA ultimately be adopted on or before June 30, 1982.[3]


As of that original deadline, the ERA had been ratified by the following states:

  

Hawaii (March   22, 1972)

New Hampshire   (March 23, 1972)

Delaware (March   23, 1972)

Iowa (March 24,   1972)

Idaho (March 24,   1972)

Kansas (March   28, 1972)

Nebraska (March   29, 1972)

Texas (March 30,   1972)

Tennessee (April   4, 1972)

Alaska (April 5,   1972)

Rhode Island   (April 14, 1972)

New Jersey   (April 17, 1972)

Colorado (April   21, 1972)

West Virginia   (April 22, 1972)

Wisconsin (April   26, 1972)

New York (May   18, 1972)

Michigan (May   22, 1972)

Maryland (May   26, 1972)

Massachusetts   (June 21, 1972)

Kentucky (June   26, 1972)

Pennsylvania   (Sept. 27, 1972)

California (Nov.   13, 1972)

Wyoming (Jan.   26, 1973)

South Dakota   (Feb. 5, 1973)

Oregon (Feb. 8,   1973)

Minnesota (Feb.   8, 1973)

New Mexico (Feb.   28, 1973)

Vermont (March   1, 1973)

Connecticut   (March 15, 1973)

Washington   (March 22, 1973)

Maine (Jan. 18,   1974)

Montana (Jan.   25, 1974)

Ohio (Feb. 7,   1974)

North Dakota   (March 19, 1975)

Indiana (Jan.   24, 1977)


Affirmations were later rescinded by five of those states as follows:

  • · Nebraska (March 15, 1973 – Legislative Resolution No. 9)
  • · Tennessee (April 23, 1974 – House Joint Resolution No. 371 and Senate Joint Resolution No. 29)
  • · Idaho (Feb. 8, 1977 – Senate Joint Resolution No. 133 and House Concurrent Resolution No. 10)
  • · Kentucky (March 17, 1978 – House (Joint) Resolution No. 2 and House (Joint) Resolution No. 20)
  • · South Dakota (March 1, 1979 – Senate Joint Resolution No. 1 and Senate Joint Resolution No. 2) South Dakota's own ratification of the ERA would only be valid up until March 22, 1979, and any ratification activities transpiring after that date anywhere else would be considered by South Dakota to be null and void.


(It is important to note that the U.S. Constitution is silent regarding a state's authority to rescind its ratification of a proposed, but not yet adopted, constitutional amendment.)


On Dec. 23, 1981, in Idaho v. Freeman, 529 F. Supp. 1107 (1981), the United States District Court for the District of Idaho ruled that the rescissions—all of which occurred before the original 1979 ratification deadline—were valid and that the ERA's deadline extension was unconstitutional. The National Organization for Women appealed the ruling. However, the acting solicitor general reported to the Court that the administrator of general services concluded the ERA had not received the required number of ratifications, so "the Amendment has failed of adoption no matter what the resolution of the legal issues presented here." He urged the Court to dismiss the complaint. On Oct. 4, 1982, in NOW v. Idaho, 459 U.S. 809 (1982), the U.S. Supreme Court vacated the ruling in Idaho v. Freeman and declared the entire matter moot on the grounds that the ERA was dead for the reason given by the administrator of general services.


There remains considerable academic and political disagreement on whether the ERA can be revised and ratified by achieving ratifications of an additional three states’ under the 35- of 38-state tally noted above; to wit, a “three-state strategy.” 4 That strategy is discussed in a 1997 article called “The Equal Rights Amendment: Why the Era Remains Legally Viable and Properly Before the States” in the William & Mary Journal of Women and the Law. In 2013, a report of the Library of Congress's Congressional Research Service (Thomas H. Neale, The Proposed Equal Rights Amendment: Contemporary Ratification Issues, Congressional Res. Serv., (May 9, 2013)) examined the legislative history and provided an analysis of the factors affecting its viability.


Proponents of the three-state strategy have promoted ratification resolutions in the legislatures of most of the 15 states that never ratified the ERA approved by Congress in 1972, but no approval has been forthcoming. 


Going Forward to Success - ERA 2020 


While the ERA has been introduced in every session of Congress since 1982, it has not achieved a critical mass to propel it to success. 


Its time has come and, as thought leaders on legal issues, lawyers can be the agents of that change. This association has long studied and supported the fundamental underpinnings of the ERA. It supported ratification of the proposed 27th Amendment to the Constitution initially in Feb. 1972 and again in Aug. 1974. 


This resolution would directly advance those previously stated goals. Additionally, it speaks to the ABA’s general policies, such as Goal III for the Association, which states: “Promote full and equal participation in the association, our profession, and the justice system by all persons.” This is the opportunity to finish the job of delivering on the basic and fundamental right of equality based on sex under the law.


Respectfully submitted,

 

Miles S. Winder III, President

New Jersey State Bar Association

February 2016

   

GENERAL INFORMATION FORM


Submitting Entity: New Jersey State Bar Association 

Submitted By: Miles S. Winder, III, President 


1. Summary of Resolution(s). This resolution seeks the affirmation of the American Bar Association’s support of the ratification of the Equal Rights Amendment to the U.S. Constitution. Further, it asks other legal entities to consider same, and, if approved, act to that effect. 


2. Approval by Submitting Entity. The New Jersey State Bar Association authorized this action at its Oct. 16, 2015 Board of Trustees meeting. 


3. Has this or a similar resolution been submitted to the House or Board previously? Yes, many years ago, see answer #4.


4. What existing Association policies are relevant to this Resolution and how would they be affected by its adoption? The ABA supported ratification of the proposed 27th Amendment to the Constitution initially in Feb. 1972 and again in Aug. 1974. This resolution would directly advance those previously stated goals. Additionally, support of this effort speaks to Goal III of the association, to provide equal opportunities for women and minorities.


5. If this is a late report, what urgency exists which requires action at this meeting of the House? N/A


6. Status of Legislation. (If applicable) The Equal Rights Amendment was originally presented in 1923. It was nearly approved in the 1970s, garnering support in 35 (of the necessary 38) states. Some states de-affirmed their prior approval. It has since been reintroduced in every session of Congress, most recently in the 117th Congress, in which two types of ERA legislation has been introduced. One seeks the traditional ratification process and a second proposes the “three-state strategy.” Both are pending. 


7. Brief explanation regarding plans for implementation of the policy, if adopted by the House of Delegates. The NJSBA will work with the ABA to use all available, existing resources, including but not limited to social media, communications, and government affairs. 


8. Cost to the Association. (Both direct and indirect costs) Direct costs are not anticipated, but additional time and energy of the existing government affairs program may be sought, if adopted. 


9. Disclosure of Interest. (If applicable) N/A 


10. Referrals. Referred to the Commission on Women, NCBP, NABE and the Diversity Center.


11. Contact Name and Address Information. (Prior to the meeting. Please include name, address, telephone number and e-mail address) Kate Coscarelli, senior managing director of communications and media relations, New Jersey State Bar Association, One Constitution Square, New Brunswick NJ 08901, 732-937-7548 or kcoscarelli@njsba.com


12. Contact Name and Address Information. (Who will present the report to the House? Please include name, address, telephone number, cell phone number and e-mail address.) Thomas H. Prol, President-Elect NJSBA, 60 Blue Heron Road, Sparta NJ 07871, 973-862-9817 or tprol@lcrlaw.com; Wayne J. Positan, New Jersey Delegate, 103 Eisenhower Parkway, Roseland NJ 07068, or wpositan@lumlaw.com

  

EXECUTIVE SUMMARY


1. Summary of the Resolution 

This resolution seeks the affirmation of the American Bar Association’s support of the ratification of the Equal Rights Amendment to the U.S. Constitution. Further, it asks other legal entities to consider same, and, if approved, act to that effect.


2. Summary of the Issue that the Resolution Addresses

Ratification of the ERA was originally presented by Alice Paul in 1923. It was nearly successfully enacted in the 1970s, but fell short. While many aspects of the law have evolved to offer rights and protections to many in our society, basic legal protection against sex discrimination has not yet been realized and affirmed in the Constitution, even given the considerations of the 14th Amendment. The ERA would make clear the legal status of sex discrimination in the courts and would send a clear message to lawmakers that the highest law of the land does not tolerate men and women being treated as separate classes. 


3. Please Explain How the Proposed Policy Position will address the issue 

Adoption of this resolution would mobilize the nation’s largest lawyers organization, and hopefully activate the local, county and state bar associations around the country, to pressure public officials to make this necessary change that champions the defense of liberty and the pursuit of justice that informs the democratic question for a “more perfect union.” Through a chorus of voices in the legal profession the mission of advancing equality under the law can be fulfilled. 


4. Summary of Minority Views

Some believe it is not necessary given other laws on discrimination and court decisions.
   

[1] In addition, a Constitutional Convention called by two-thirds of the legislatures of the several states can propose as many amendments as it deems necessary; those amendments must be approved by three-fourths of the states to be adopted, U.S. Const. Art. V. 


[2] This supplemented President John F. Kennedy’s endorsement of the provision in an October 21, 1960, letter to the chairman of the National Woman's Party


[3] The original 1979 deadline was extended under the 95th Congress by House Joint Resolution No. 638 (H. J. Res. 638, 95th Cong., 1st Sess. (1977)), introduced by NY Representative Elizabeth Holtzman. Beginning in 1917, Congress has usually (but not always) imposed deadlines on proposed amendments. While the Constitution does not expressly provide for a deadline on the state legislatures' or state ratifying conventions' consideration of proposed amendments. In Dillon v. Gloss, 256 U.S. 368 (1921), the Supreme Court affirmed that Congress can provide a deadline for ratification. But Cf. Coleman v. Miller, 307 U.S. 433 (1935), in which the Court modified Dillon considerably, holding that the question of timeliness of ratification is a political and non-justiciable one, leaving the issue to Congress's discretion. It would appear that the length of time elapsing between proposal and ratification is irrelevant to the validity of the amendment. For example, the 27th Amendment was proposed in 1789 and ratified more than 200 years later in 1992. On May 20, 1992, both houses of Congress adopted concurrent resolutions accepting the 27th Amendment's unorthodox ratification process as having been successful and valid.


4 Allison L. Meld, Sheryl L. Herndon and Danielle M. Stager, The Equal Rights Amendment: Why the Era Remains Legally Viable and Properly Before the States, 3 Wm. & Mary J. Women & Law. 113 (1997).

Attempts at Rescission Unlikely to Affect Passage

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Under Article V of the United States Constitution, once three-fourths of the states ratify an amendment, it becomes a part of the Constitution.[1] When Arizona votes to ratify the ERA, it will be the 38th state necessary for ratification.[2] This is true despite attempts by other states to rescind prior ratifying votes.[3]

 

The Constitution does not grant the states the power to rescind a prior vote to ratify a constitutional amendment. Purported rescissions of other amendments have historically failed and the Supreme Court has never found a rescission to be valid.  

    

[1] U.S. Const. art. V.


[2] Robinson Woodward-Burns, The Equal Rights Amendment is One State From Ratification. Now What?, Wash. Post, https://www.washingtonpost.com/news/monkey-cage/wp/2018/06/20/the-equal-rights-amendment-is-one-state-from-ratification-now-what/?noredirect=on&utm_term=.049c22cbdd1a (June 20, 2018).


[3] The five states that have attempted to rescind are Nebraska in 1973, Tennessee in 1974, Idaho in 1977, Kentucky in 1978, and South Dakota in 1979. Id. It is not clear whether these states would continue to support these rescission attempts.

There Is No Textual Support in the Constitution for Rescission of a Prior Vote to Ratify

Article V of the Constitution is silent regarding rescission of a state’s vote to ratify a constitutional amendment, and such a power cannot be granted by implication.  Congress has consistently read Article V to grant state legislatures only a ratification power.[1] Once a state legislative body has ratified an amendment pursuant to Article V, its constitutional role is complete.[2] 


This interpretation avoids the confusion and lack of confidence in the amendment process that would result by reading Article V as granting the power to ratify with the caveat “but we might revoke this ratification at any time.”[3]


Moreover, because the Supreme Court has confirmed that the power to ratify constitutional amendments “is the exercise of a national power specifically granted by the Constitution” and because the Constitution does not specifically also grant the power to rescind, states cannot exercise their own authority to do so.[4] 


Some have suggested that because Article V does not explicitly prohibit rescission, the framers of the Constitution must have intended to grant rescission powers through implication. But the Supreme Court has stated that the power to ratify is granted by the Constitution and limited to Article V. Reading an implied power of rescission into Article V would significantly alter a power explicitly granted by the Constitution.[5] 

    

[1] Walter Dellinger, The Legitimacy of Constitutional Change: Rethinking the Amendment Process, 97 Harv. L. Rev. 386, 419-20 (1983).


[2] Id.


[3] See Dodd, supra note 6.


[4] 253 U.S. 221, 229–30 (1920) (determining the lower court erred in holding that the state had authority to require the submission of the ratification to a referendum under the state Constitution); see also U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 802, 115 S. Ct. 1842, 1854 (1995) (holding that states may not impose qualifications for offices of the United States representative or United States senator in addition to those set forth by the Constitution).


[5] See Hawke v. Smith, 253 U.S. 221, 229–30 (1920) (finding that “determination of the method of ratification is the exercise of a national power specifically granted by the Constitution”).

Historic Attempts at Rescission Relating to Other Amendments Have Failed

Historically, attempts at rescission have been deemed ineffective. For example, in 1868, Ohio and New Jersey attempted to rescind their ratifications of the Fourteenth Amendment.  Both states were needed to add up to the required total for the Fourteenth Amendment to become a part of the Constitution. Congress and the Secretary of State ignored Ohio’s and New Jersey’s attempts to rescind and “affirmed the amendment’s passage.”[1] 


Similarly, in 1869, New York attempted to rescind its ratification of the Fifteenth Amendment.[2] In response, then-Secretary of State Hamilton Fish issued a proclamation certifying that the Amendment had been ratified by the requisite three-fourths of the states and listing the states.[3]  The list included New York—the state “claiming to withdraw the said ratifications.”[4]

In another failed attempt at rescission, West Virginia purported to rescind its ratification of the Nineteenth Amendment in 1920. The Secretary of State ignored the rescission and certified the Amendment.[5]  


Summarizing past rescission attempts of other amendments, legal scholar Leo Kanowitz comments:

Whether a state, having first ratified a proposed constitutional amendment, can rescind that ratification, is not entirely an undecided question in American constitutional law. With respect to three present amendments to the federal Constitution—the fourteenth, fifteenth, and nineteenth—either Congress itself or the secretary of state, in promulgating the amendments included within the requisite number of ratifying states one or more states that had first ratified and then purported to rescind. In other words, in each instance efforts to rescind were regarded as void and without effect.[6]

In short, efforts to rescind have historically failed. There is every reason to believe that the same would be true with respect to any attempts to rescind ratification of the ERA.

    

[1] W. F. Dodd, Amending the Federal Constitution, 30 Yale L.J. 321, 346 (1921).


[2] Id.


[3] Id.


[4] Hamilton Fish, U.S. Sec’y of State, Announcement of Fifteenth Amendment Ratification (March 30, 1870), https://millercenter.org/the-presidency/presidential-speeches/march-30-1870-announcement-fifteenth-amendment-ratification.


[5] Constitutional Amendment Process, Federal Register, https://www.archives.gov/federal-register/constitution (last updated Aug. 15 2016). 


[6] Leo Kanowitz & Marilyn Klinger, Can a State Rescind Its Equal Rights Amendment Ratification: Who Decides and How?, 28 Hastings L.J. 999–1000 (1977)

The Supreme Court Has Never Found a Rescission to be Valid

The Supreme Court has refrained from addressing a state’s power to rescind a prior ratification of a constitutional amendment. In Coleman v. Miller,[1] the Court described the history of the Fourteenth Amendment (including attempts at rescission) and concluded that questions about the validity of ratifications are political questions, not to be resolved in court. 


In National Organization of Women v. Idaho, a lower court decision evaluating such a rescission was before the Supreme Court, but the Supreme Court did not reach the issue as it dismissed the case as moot once the congressional deadline for ratifications had passed.[2]

    

[1] 307 U.S. 433 (1939).


[2] National Organization for Women v. Idaho, 459 U.S. 809, 809 (1982) (declining to affirm the District Court’s decision in Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho, 1981)); see also Scott Bomboy, Can a Dormant Proposed Constitutional Amendment Come Back to Life?, Constitution Daily, https://constitutioncenter.org/blog/can-a-dormant-proposed-constitutional-amendment-come-back-to-life (May 31, 2018).