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40 years later, the ERA is still not a part of the Constitution

Forty years ago, Congress approved the Equal Rights Amendment, guaranteeing protection from discrimination on the basis of sex -- but it has never been ratified as a constitutional amendment. Now a campaign to ratify the ERA is gathering momentum, in part because of fallout from the #MeToo movement of the past two years. Amna Nawaz talks to Kate Kelly of Equality Now.

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  • Judy Woodruff:

    It was almost 100 years ago, in 1923, that Alice Paul, a leader of the women's suffrage movement, first introduced to the public an idea of what would eventually become the proposed Equal Rights Amendment.

    The rising voices of women, the passage of civil rights laws, and the power of organized labor all helped to build momentum in the '70s, when it passed Congress. But opposition also mounted over time, as state legislatures faced ratification votes. The ERA ran out of steam and hit a wall.

    Now, as Amna Nawaz reports, there is a new energy to try one more time to get it ratified.

  • Protester:

    What do we want?

  • Protester:

    ERA!

  • Protester:

    When do we want it?

  • Protester:

    Now!

  • Amna Nawaz:

    It was over 40 years ago that Congress approved the Equal Rights Amendment, or ERA, and women took to the streets to get it ratified as a constitutional amendment.

  • Woman:

    So, as we march today, remember, forward together, backward never.

  • Amna Nawaz:

    First lady Betty Ford argued for it in 1975.

  • Betty Ford:

    By the end of this century, I hope this nation will be a place where men and women can freely choose their life's work without restriction and without ridicule.

  • Amna Nawaz:

    The ERA would guarantee protection from sex discrimination in the Constitution, something not explicitly stated elsewhere.

    It says — quote — "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex."

    But before it could be enshrined in the Constitution, the ERA needed three-quarters of all states, 38 total, to ratify it. Congress set a deadline for that goal. The ERA came up three states shy by the original deadline in 1979; 1982 saw a deadline extension. Still, the ERA fell short.

    But the largely latent campaign to ratify the ERA picked up steam again two years ago, partly due to the MeToo movement. Nevada became the 36th state to ratify it in 2017, followed by Illinois last year. Supporters had hoped Virginia would be the 38th state to ratify it, but, last week, Virginia failed to push it through.

    There are now several bills in Congress to either extend or work around the deadline.

    Jackie Speier, a California Democrat, introduced one.

  • Rep. Jackie Speier, D-Calif.:

    Why is this important? Because under the law in this country today, women need to not only show that there is discrimination in order to win victory in court. They need to show that the discrimination was intentional. And that is a very high bar to make.

  • Amna Nawaz:

    Five states that ratified the ERA decades ago have since rescinded those votes. If a 38th state stepped in now, the battle could move to court.

    There's still opposition to the ERA. Some conservatives oppose it, arguing it could overturn abortion restrictions, that the deadline to ratify has long past, and that the ERA would make it more difficult to separate sexes in some facilities.

    We will examine some of those claims in a moment.

    But, first, let's hear about the push to pass the ERA from Kate Kelly, an attorney working on these issues for the group Equality Now.

    Welcome to the "NewsHour."

  • Kate Kelly:

    Thanks. Thanks for having me.

  • Amna Nawaz:

    So, we just heard there Virginia was widely believed to be that 38th state, right, that was going to push it over the finish line. Does it have to be Virginia? Could another state step in right now and get the ERA over that line?

  • Kate Kelly:

    There are 13 states that are yet to ratify, so any of those states could ratify and be the one to push it over the finish line to get the three-fourths necessary.

    It's not quite dead in Virginia yet. It did fail in one of the committees, but the speaker of the House could still bring it to the floor. There is another option with a rule change that they're going to try to get. So it's not 100 percent dead in Virginia. We're still crossing our fingers.

    But there is also North Carolina has a bill. Arizona has a bill coming up this session. And so there are lots of hopes in several of the states.

  • Amna Nawaz:

    And what about some of those — the other states we heard about, those five that say they rescinded their votes? Does that take away from the 38 tally?

  • Kate Kelly:

    So, there are states that attempted to rescind before the original deadline had passed.

    But there is a really good robust legal argument that rescissions don't count. In fact, with three amendments, previous amendments, states attempted to rescind, and it didn't — for example, with the 14th Amendment, two states attempted to rescind, and they were not counted. They just counted in the final passage.

    So they were listed among the states that had ratified.

  • Amna Nawaz:

    So there's a couple of legislative efforts being introduced to try to push this through now, right?

    There is one that would remove the deadline altogether. There's another one that would restart the entire ratification process. Do either of those stand a chance, and how do they change the landscape?

  • Kate Kelly:

    Essentially, the ERA is going to happen. The question is, do we get the start from where we left off in 1972, or do we have to start over, pass a new ERA, and have it ratified by three-fourths of the states?

    So, in my opinion, it is going to happen. Like Susan B. Anthony said, failure is impossible. But the question is how.

    So, the deadline removal bill is Jackie Speier's bill. And that would simply eliminate that 1982 deadline that was put in place by Congress. The deadline was originally in the preamble to the ERA, so it's not what the states ratified. It wasn't considered. It wasn't part of the actual amendment.

    So Congress put it in. They can take it out.

    The other strategy by Representative Maloney is to start over, with a new ERA, pass it in both houses, and then send it to the states for ratification.

  • Amna Nawaz:

    But it would be the same in language and intention; it's just starting the process anew?

  • Kate Kelly:

    Representative Maloney's bill is actually new. The original ERA was — which written in 1923 by Alice Paul, and then eventually passed, didn't have the word women in it.

    And so Representative Maloney's bill actually puts the word woman into the Constitution.

  • Amna Nawaz:

    It might come as a shock to a lot of people that the Constitution doesn't actually guarantee those same rights and protection.

    As someone who's advocating for the passage of this, do you find that that is a huge obstacle, is just reminding people that's the current landscape?

  • Kate Kelly:

    Over 80 percent of Americans think we already have an Equal Rights Amendment and that it passed and that it's in the Constitution.

    So overcoming that barrier of educating people and letting them know, actually, women are not protected to the fullest extent under the Constitution comes as a shock to most people.

  • Amna Nawaz:

    So, you heard me hint at some of those opposition arguments to this, right, that it would complicate other matters down the line. This is why some people oppose it.

    And a lot of people say, look, progress has been made in a lot of states without the ERA. We have narrowed the pay gap. A number of states have basically passed their own version of the ERA.

    So, why is this still necessary?

  • Kate Kelly:

    Twenty-four states have their own version of the ERA.

    However, in — many of the ways that we have made progress are up and under assault right now. For example, we have relied on Title IX. Title IX is under attack. We have relied on Equal Pay Act.

    And a lot of these piecemeal types of legislation are at the whim of the people in Congress. So, they could be changed at any time. They could be defunded at any time.

    But what we — what can't be changed and what is a permanent protection is something that we put in the Constitution. When you think of other amendments, like the Second Amendment or the First Amendment and how powerful those are to protect those rights, that's what we would have for women.

  • Amna Nawaz:

    So, you're worried all those other smaller legal issues that you have been relying on, if they get undermined, those states get undermined and those protections, too?

  • Kate Kelly:

    Yes.

    And state ERAs only apply to that state. So, the federal Constitution protects every woman and girl in the United States of America, whereas, if you live in a state that doesn't have an ERA or if your state ERA is somewhat lacking, you're not protected.

  • Amna Nawaz:

    Kate Kelly of Equality Now, thanks so much for being here.

  • Kate Kelly:

    Thank you.

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