First Congressional Hearing on the ERA in 36 years
Earlier this week, for the first time in 36 years, Congress held a hearing on the Equal Rights Amendment (ERA). There is building momentum for Congress to eliminate the original 1982 deadline and incorporate the amendment into the Constitution once the 38th state ratifies it.
The House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties held the first official hearing on the Equal Rights Amendment in almost 40 years on Tuesday April 30th, 2019. This historic move was prompted by extraordinary movement on the state level that led to two additional states ratifying the amendment (Nevada, March 2017 and Illinois, May 2018), and was coordinated by the ERA Coalition. With the 38th, and final, state poised to ratify the ERA in early 2020, many are looking to guidance from Congress on the issue.
What is the Equal Rights Amendment?
The original ERA was written in 1923 by Alice Paul and finally passed through Congress in 1972, but it fell short of ratification in 1982 by just three states. Many have continued to call for its ratification all these years. Supreme Court Justice Ruth Bader Ginsburg said if she could choose to add any amendment it would be the ERA, stating, “I’d like to see in the Constitution a statement that men and women are people of equal citizenship stature. I’d like to see an equal rights amendment in our Constitution.”
In order to still ratify the ERA now, we can either try to pass a whole new version, or try to take off where activists in the 1980s left off. Advocates call the strategy of picking up from 1982 the “three state solution.” The first step is to fill the gap and get the one additional state (after Nevada and Illinois) required to ratify the ERA. Many states have active campaigns in their state legislatures to ratify the ERA, including most actively Virginia, Arizona, and North Carolina.
In addition to getting one more state to ratify, the previous ratification deadline must be ruled unconstitutional or eliminated by Congress. There are bills pending currently in both the House (Congresswoman Jackie Speier (D-CA) H.J. Res. 38) and the Senate (Senator Ben Cardin (D-MD) S.J. Res. 6) to eliminate the deadline. Those bills will have to make it through both houses and be signed by the president in order to successfully eliminate the original 1982 deadline. Congresswoman Carolyn Maloney (D-NY) is the lead House sponsor of the “clean slate” approach to pass and ratify a new ERA from scratch, but she calls this a “Plan B” approach. The Senate resolution has bipartisan support, as do both resolutions in the house.
Hearing in Congress
Tuesday’s hearing was a chance for all of the outstanding issues to come to light in Congress. It was a momentous occasion. ERA activists from all over the country flew in for the hearing and there was a line down the hall waiting to get in. The atmosphere was part reunion part nerdy rock concert.
There were three witnesses testifying in favor of the ERA: Oscar winning actor Patricia Arquette, Nevada State Senator Pat Spearman, and former dean of Stanford law school Kathleen Sullivan. One woman testified against the ERA, Elizabeth Foley who is a conservative Professor at Florida International University College of Law. Representatives Speier and Maloney opened the session speaking about their tireless work for the ERA and their respective bills.
The testimony was incredibly compelling, and the Representatives asked pointed, excellent questions.
Kathleen Sullivan, who has argued cases before the Supreme Court, went through the legal arguments and made it clear that the original ERA deadline can be altered by Congress under the power of Article V of the U.S. Constitution. She also clearly stated that the ERA will protect people of all marginalized genders. “The ERA will prohibit discrimination on the basis of sex. If there's discrimination against LGBTQ people on the basis of sex then it'll be covered. I believe the textual reading of the Amendment does apply to sexual orientation & gender identity.” This encouraging affirmative statement was historic and will certainly help modernize the current fight for the ERA.
Senator Spearman testified about the successful effort to ratify the ERA in Nevada that reignited the robust national fight for the ERA. She explained that she has experienced discrimination on many levels all of her life, “I am a woman. I am African American. And I am a member of the LGBTQ community. The discussion of equality is one I’ve been in all of my life...We're not talking about special rights here, we're talking about equal rights.” She highlighted the absurdity of a largely male Congress even debating women’s rights, “People who were born in privilege always debate whether or not those of us who were not, deserve equality.” Senator Spearman, who is also an ordained minister, ended her powerful testimony by saying: “Equality is not debatable, we are born with it. All we are asking is for it to be recognized.”
Actor Patricia Arquette testified from her personal perspective as a citizen and said that women have long awaited equality because of an historical and purposeful exclusion. “Women have waited 232 years to be enshrined as full and equal citizens. Why? Because in 1787 women were left out of the Constitution intentionally.” She provided emotionally compelling testimony about her own experiences with discrimination and talked about her sister, who is transgender. After Representative Louie Gohmert of Texas went on what can only be described as a rant, using scare tactics about trans women using public restrooms, Arquette spoke of growing up with her sister and humanized the argument in a very touching way saying that, “the only scary thing about sharing a bathroom with her was fighting about who was going to replace the toilet paper roll.”
Conservative Representative Mike Johnson of Louisiana was the only GOP lawmaker who stayed for the duration of the hearing. He stated that the reason the ERA should not be passed is because of the Hyde Amendment and voiced his fear that if the ERA becomes law, all abortion restrictions will be struck down, a common anti-ERA scare tactic. Johnson indicated that applying the highest level of scrutiny to sex discrimination would essentially allow for too much reproductive freedom for American women.
The Republican witness, Elizabeth Foley, echoed this sentiment but largely focused on procedural hurdles to ERA ratification. She said that a third bite at the ERA apple could be “unconstitutional.” She claimed to support the amendment in theory, “as a woman,” but to want it to only be ratified if it passes through an entirely new process in Congress and goes to all the states for ratification again. While she claimed that only Congress had the power to put the deadline in the ERA in the first instance, she confusingly also argued that Congress does not now have that same power to take it out. She was robustly questioned by several Representatives, including Jamie Raskin of Maryland, and her argument came up short.
In all, the hearing was a fantastic revival in Congress and provided a powerful path forward, with the arguments for the ERA laid out clearly and concisely.
The next step for the ERA is for Representative Speier’s deadline elimination bill to receive a markup in the full Judiciary Committee and to head to the floor for a vote. ERA supporters can call their representatives, no matter what state you live in, and tell them to support H.J. Res. 38. If supporters live in an unratified state, they can get involved with the local fights on the ground and contact their state representatives to urge them to support ratification.