Historic House vote could bring women one step closer to equality in the Constitution

This is the first in an occasional series of Yahoo News articles and accompanying videos on how the issues America faced in the 1920s — aka “the Roaring Twenties” — have echoes in our own decade, a century later.

On Thursday, the House of Representatives voted in favor of a resolution to eliminate a deadline that expired in 1982 for states to ratify the Equal Rights Amendment (ERA). 

If added to the Constitution, the ERA would affirm that men and women are equal under the law and would provide a legal remedy against sex discrimination. 

At the beginning of her weekly press conference, House Speaker Nancy Pelosi praised the resolution and the vote.

"It's a historic day. It's a happy day," Pelosi said. "When women succeed, America succeeds. That's what we believe, and that's what we're acting on today."

The resolution still needs to pass in the Senate, and Majority Leader Mitch McConnell has given no indication that the chamber will even take it up. 

The vote comes just weeks after Virginia became the 38th and final state needed to ratify the amendment. But Virginia’s ratification and today’s House vote are just the beginning of what’s likely to be a lengthy legal battle before the ERA can be added to the Constitution.  

The states of Alabama, Louisianan and South Dakota filed a lawsuit in December against the ERA, arguing that the deadline for ratification expired in 1982, when only 35 states had signed off. And the Trump administration weighed in with a similar opinion on Jan. 8, when the Justice Department's Office of Legal Counsel said it was too late for the ERA to be ratified.   

In addition to Virginia, Nevada and Illinois also ratified after the 1982 deadline — in 2017 and 2018, respectively — meaning their ratifications could also be called into question. 

ERA advocates are undeterred.  

“We intend to pursue the Equal Rights Amendment,” Carol Jenkins, CEO of the ERA Coalition, told Yahoo News when asked about the OLC’s opinion. “We will fight in whatever way we have to, to make sure that Virginia, Illinois, Nevada and any other states are counted. And that we will in this country have an equal rights amendment.” 

The case for the ERA is further complicated by the fact that five states — Idaho, Kentucky, Nebraska, South Dakota, and Tennessee — have voted to rescind their ratification of the ERA.  There appears to be no legal precedent for states to retract their ratification of an amendment, so the question may end up in the courts.

Why is an Equal Rights Amendment so controversial?  

 The roots of this battle go back almost 100 years to the 1920s. First introduced by activist Alice Paul in 1923, the ERA was conceived by the same women’s rights movement that made the 19th amendment — giving women the right to vote — a success. The original version stated that “men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.” Paul revised the amendment in 1943 to its current phrasing, which reads: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” 

The amendment was contentious from the beginning. In the 1920s it was lauded by professional women like pioneering aviator Amelia Earhart but criticized by reformers in the labor movement who feared that its passage would overturn hard-fought laws that protected women in the workplace. Though introduced in every session of Congress from 1923 onward, the ERA lay mostly dormant for decades. 

When the ERA regained steam in the 1960s, its passage seemed almost inevitable. With bipartisan support, the ERA sailed through Congress, passing in the House of Representatives in 1971 and in the Senate in 1972. From there, the amendment quickly picked up states in favor of ratification, rapidly nearing the 38-state threshold needed to be added to the constitution. 

But gradually, support for the ERA trickled to a halt, with just 35 states ratifying before the 1979 deadline set in the original resolution. (The Constitution doesn’t specify a time limit.) Although Congress extended the deadline to 1982, no more states voted to ratify the amendment until 2017.

Like in the 1920s, opposition to the ERA in the 1970s was fueled by fears that women would lose more than they would gain if the ERA was added to the Constitution. Anti-ERA organizers, including conservative activist Phyllis Schlafly, claimed that the ERA could result in women being subject to a military draft or in single-sex bathrooms being outlawed. 

Today, Schlafly’s daughter has taken up her mother’s fight in a renewed effort to defeat the ERA. 

“ERA would make America into a sex-neutral society, and women lose when men invade their spaces, including military, schools, athletics, prisons and women shelters,” Anne Schlafly Cori, Chairman of Eagle Forum, said in a statement to Yahoo News. 

The ERA Coalition’s Jenkins told Yahoo News that women participating in a military draft is a concession she would be willing to make. “When it comes to the draft, to me, I think of it as a fair trade,” Jenkins said. “You know, you cannot really demand full rights if you don’t also live up to full responsibilities. So I think that there are just some things that we have to say, ‘OK. Give us the ERA, we’ll sign up for the draft.’”

A military draft doesn’t automatically mean women — or men, for that matter — would be put in combat roles if selected. And with women already comprising 20 percent of the Air Force, 19 percent of the Navy, 15 percent of the Army and almost 9 percent of the Marine Corps, the ERA would provide further protections for women who are already serving in the military voluntarily.       

“I think that this notion that we’re too weak and fragile to be put into really tough jobs has to be dismissed,” Jenkins continued. “It’s part of the reason that we are still considered second-class citizens or diminished humans, or you know, that we’re ‘the weaker sex.’ And all of that has to be dismissed.”

Yet even with ERA’s long, tumultuous history, 80 percent of Americans mistakenly believe that the Constitution already guarantees equal rights for men and women, according to a 2016 poll released by the ERA Coalition. 

Jenkins says Americans now have the opportunity to correct that.  

“When the Constitution was written there were many things that needed to be fixed,” Jenkins said. “There are already 27 amendments to the Constitution of the United States, and this would be the 28th. If we can fix those other problems, why can’t we fix this one? What’s the big deal about giving women equality?”