“Why is it so difficult?” Representative Maloney asked about the long struggle to pass the ERA, the first version of which was introduced nearly 100 years ago. “What’s so intimidating about treating women equally?”
The quick answer: abortion. Today’s opponents of ERA see the measure, first and foremost, as a stalking horse that would ban state laws that restrict or prohibit a woman’s right to terminate a pregnancy. Whether this prediction is confirmed or not, there is no doubt that the debate over the amendment has changed in the decades since its introduction. In the 1970s, the main opposition was led by Phyllis Schlafly, the conservative activist who warned that gender equality would lead to a carnival of horrors, including same-sex marriage. This ship has sailed even without the ERA, of course, but in 2022 the concept of “sex” itself is challenged in ways that even Ms. Schlafly’s darkest fantasies could not have predicted.
This is why widespread public support is essential today. “Until the world calls for this, the world will do nothing,” said Kati Hornung, a political organizer who led Virginia’s efforts to pass the ERA and now leads a group tasked with ensuring that it becomes the 28th Amendment. The state strategy, she told me, “was to make it a daily discussion, where you as a politician couldn’t go anywhere without being asked about it. We need to do nationally what we have done here in Virginia.
Lawyers have not abandoned the courts entirely. A lawsuit filed by the attorneys general of the last three states to ratify the ERA is before the United States Court of Appeals in Washington, DC, calling on the archivist to certify the amendment as required by federal law. Attorneys general from five conservative-led states joined the lawsuit to oppose ratification.
For Ms. Hornung, the ultimate goal is the same no matter how far you get there. “We just need to have gender treated the same as race, religion, country of origin. It seems fair, decent and reasonable,” she said. At present, “it is still the men who make the decisions for the majority of the country, which are women”.
On the last night of March 1776, Abigail Adams sat down and wrote a letter to her husband, John, who had left to serve in the Continental Congress, helping to shape what would soon become the Declaration of Independence. “By the way,” she wrote, “in the new code of laws which I suppose you will need to make, I desire that you remember the ladies and be more generous and favorable to them than your ancestors. Do not put such unlimited power in the hands of husbands. Remember that all men would be tyrants if they could. She continued: “If special care and attention is not given to the ladies, we are determined to foment a rebellion and will not stand bound by laws in which we have no voice or representation.”
John Adams and his colleagues ignored his warning, but we can. And that means treating the Constitution not as a sacred text from another era, but as a framework adaptable to an ever-changing and ever-changing society. The founders expected it. They knew they were far from perfect and they wanted their creation to be updated regularly, even though they hadn’t anticipated how polarized the country would become. This polarization may seem like an intractable fact of modern life, but remember: 40% of the Constitution we live under in 2022 consists of amendments. That is to say, the American people – those living today and those to come – are the authors of the Constitution as well as its founders. It is no longer their document, if it ever was. It’s ours.
