You are on page 1of 50

CONSTITUTIONAL EQUALITY:

STATE & FEDERAL INITIATIVES

M. Kathleen Murphy,
Founder of MN C.A.F.E. Coalition
now ERA Minnesota
CONSTITUTIONAL EQUALITY:
I. History

II. What Happened?

III. Why Needed?

III. ERA Strategies


“EQUALITY OF RIGHTS UNDER
THE LAW SHALL NOT BE
DENIED OR ABRIDGED…
ON ACCOUNT OF SEX.”
I. HISTORY of Federal ERA
1800’s: Constitutional Amendments
1920: Suffrage
1923: Introduction of ERA
1970’s: Trying to Ratify the 27th
Amendment
1982: Defeated (did you know?)
1868: 14th Amendment

• Created broad definition of citizenship


• Adopted after the Civil War (July 9, 1868) as one of
the reconstruction Amendments
• The word “male” was introduced for the first time

(but also known as the “Equal Protection” clause)


1870: 15th Amendment

“The right… to vote shall


not be denied or
abridged…
on account of race, color,
or previous condition of
servitude.”

Women are not included.


1920: 19th Amendment

A 50 year fight finally won


(white) women their only
Constitutionally guaranteed
right —
the right to vote.

Restrictions on women of
color until the 1960s.
1923: Alice Paul Proposes the
Equal Rights Amendment
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.
1960’s: 2nd Wave
The late 1960’s and early 1970’s brought a
resurgence of the fight for an Equal Rights
Amendment - led by many great women, including
activists & authors Betty Friedan, Pauli Murray,
Gloria Steinem and bell hooks.
Supreme Court rulings
1961: In Hoyt v. Florida SCOTUS upheld sex
discrimination.

Caused President Kennedy to create the President’s


Commission on the Status of Women.

1971: In Reed v. Reed:


“In the absence of a firm constitutional foundation for equal
treatment of men & women under the law, women seeking
to be judged on their individual merits will continue to
encounter law-sanctioned obstacles.”
- Pauli Murray, Ruth Bader Ginsburg & Dorothy Kenyon, legal
counsel to Sally Reed in Reed v. Reed, 404 U.S. 71, 1971.
Supreme Court rulings

“The ACLU and NOW maintained that sex was a suspect


classification for the same reason race was: Both were natural
traits that the dominant culture has treated as a badge of
inferiority and stigmatized legally, based upon inaccurate
stereotypes about the group defined by that trait.”
In Reed, SCOTUS was unanimous that
arbitrary discrimination existed, but left these
arguments unaddressed.

Same year -
1971: ERA debated in Congress.
’71 & ’72: Overwhelming Support
400 90

300 68

200 45
Yes No
Yes No

100 23

0 0

Vote in US House: Vote in the US Senate:


354 to 24 84 to 8

In June of 1971 the Amendment easily passed the


House of Representatives, and through the Senate in
March of 1972.
Minnesota was the 26th state to ratify in
1973.

Ratified

Passed in 1 body

Not ratified

By 1977: 35 states, out of the 38 necessary, had ratified the


ERA
Supreme Court rulings

1973: Frontiero v. Richardson:


Four justices argued for strict scrutiny under
the Equal Protection Clause. But needed five.

Frontiero v. Richardson, 411 U.S. 677, 1973.


DEADLINE for RATIFICATION
• ERA original 7 year deadline: June 1979

• Congress extended deadline:


June 30, 1982

• Arbitrary timeline, only 2


amendments have had a time
constraint

• 27th Amendment ratified in 1992


took 203 years for 38th state to pass
1979: UN adopts International
Treaty
• The United Nations General Assembly adopts CEDAW: the
Convention on the Elimination of all forms of Discrimination
Against Women.

• An international bill of rights for women, it was instituted on


September 3, 1981 and has been ratified by 189 countries.

• U.S. signed on, but has still -to this day- refused to ratify.

• Only 7 countries not signed on: USA, Iran, Sudan, Somalia,


(“Survivor” islands) Nauru, Pelau, and Tonga.
JUNE 30, 1982.
THE AMENDMENT FAILS
TO BE RATIFIED.

II. WHAT HAPPENED?


II. Why? What happened?

• Why didn’t enough states ratify the ERA?


• Why wasn’t CEDAW ratified?
• What were the opponents’ arguments?
- Scare tactics
- Insurance lobby
- Feminist backlash
- Change in politics
- Connection to abortion politics
Scare Tactic #1

• Equal rights would force


women to work outside
the home.

• (It was actually WWII that


forced more women into the
work force. Many liked being
valued & getting their own
paycheck.)
Scare Tactic #2
• Men would not be required to provide for
their families.

Scare Tactic #3
• The government would require forced
gender integration into things such as:
Fraternities & Sororities

Boy Scouts & Girl Scouts

Same-Sex Public Bathrooms


Scare Tactic #4

• Women would be forced


into military combat.

Women soldiers are now in nearly all


areas of our military, including combat.
• They fight and die for our
country.
• But they still don’t get medals of honor when they
die –
side by side – with men.
Scare Tactic #5

• Women would lose


“protected” status in the
workforce.
So called “protective” labor
laws actually prohibit
opportunity.
Women were led to believe
that the law held us up on a
pedestal to ‘protect’ us from
hard work or conditions.
Reality: we are still being kept
from high wage jobs for this
reason.
Why was ERA defeated?
Insurance Lobby
$160 M

$128 M

$96 M

$64 M

$32 M

$0 M

Lobbying Expenditures by Insurance Companies

Insurance companies spent millions of dollars on


lobbying in Illinois, Florida and Missouri.
Why was ERA defeated?
Feminist Backlash

Claims made:
• ERA is anti-family & anti-American

• Alimony & child support laws would be


ignored

• Women are not REALLY being


discriminated against
Why was ERA defeated?
Change in political atmosphere
1980: the election of Ronald Reagan
meant change.
• 1st U.S. President to ever openly
oppose equal rights
• Equal rights were removed from the
Republican party platform

Constitutional equality had been supported by every


U.S. President since Teddy Roosevelt in 1914.
Why was ERA defeated?
Connection to abortion

A state ruling in 1981 suggested that the


state’s ERA was partially responsible for
eliminating
a ban on public funding of abortion.
Anti-abortion groups insist on an “abortion-neutralization
amendment” to any federal ERA. The amendment would
add to the ERA the sentence, “Nothing in this article [the
ERA] shall be construed to grant, secure, or deny any
right relating to abortion or the funding thereof.”
Now jump ahead 20 years…
2001 Public awareness poll
shows 72% of Americans
believe the “Constitution
makes it clear that male and
female citizens are
supposed to have equal
rights.”

88% replied the Constitution


SHOULD make it clear that
all citizens have equal
rights.
And another 15 years…

June 2016 - Americans — by 94% — overwhelmingly support an


ERA
June 2016 - Americans — by 94% — overwhelmingly support an
ERA

Support by Gender
June 2016 - Americans — by 94% — overwhelmingly support an
ERA

Support by Political Party


III. WHY IS
CONSTITUTIONAL EQUALITY
STILL NECESSARY?
WHY?
1. Equal rights are not fully guaranteed by
the Equal Protection Clause.
2. Judicial standards need to be stricter and
clearer.
3. Protection from rolling back significant
advances over the last 50+ years.
4. Prevalence of gender violence is endemic.
5. United States needs to prove its
commitment and be an international
leader.
Why necessary?
1) Equal protection of the law is not fully
guaranteed.

• Neither the U.S. Constitution nor the Minnesota


Constitution explicitly guarantees that all of the rights it
protects are held equally by all citizens without regard
to sex.

The only right that either


Constitution specifically affirms as
equal for women and men is the
right to vote.
Why necessary?
2) Need for a clearer & stricter judicial standard
for deciding legal cases of sex discrimination.

• The Courts hold sex discrimination to a lower


standard than discrimination based on race, religion, or
national origin.
• Court decisions are inconsistent in
applying current law - adding to
confusion about how to review sex
discrimination claims.
• A Constitutional amendment would send
the message that our state and our country has zero
tolerance for all forms of sex discrimination.
Why necessary?
3) Protection from rolling back significant
advances over the last 50 years.

• With an ERA in place, progress already made in


eliminating sex discrimination would be much harder to
reverse.

• The courts & the legislature have the


power to replace existing laws by a mere
majority vote.
• Judicial precedents can be eroded or
ignored.
Why necessary?
3) Protection from rolling back significant
advances over the last 50 years.

Lilly Ledbetter v. Goodyear Tire reversed 40


years of Equal Employment Opportunity
Commission (EEOC) laws

Citizens United v. FEC


reversed 63+ years of
campaign laws
Why necessary?
3) Protection from rolling back significant
advances over the last 50 years.

According to the 2013 “Benchmarking Women’s Leadership”


report, women’s advancement across 10 working sectors has
stalled
at 18% across the board.
Why necessary?
4) Gender Violence

Endemic = the norm, to be expected

Femicide reports (21 in 2016, 28 people in 2010 in


MN)

Reported rapes (average 6 per day reported in MN,


but only
16% are assumed to be reported = 38 per day or
13,687 per year, 84% know the attacker)
Why necessary?
4) Gender Violence

“Sexual violence is a clear indicator of gender


inequality.

The single greatest risk factor for becoming a victim of


sexual assault is being a woman. Violence against
women is a systemic, and literally deadly, expression of
a fundamental gender inequity. Sexual violence, and all
violence against women, not only reflects this
fundamental inequality but moreover perpetuates it.”
- Kate Ravenscroft, 10 Reasons We All Need to Care About Sexual
Violence
Why necessary?
4) Gender Violence

Sexual violence against women is a lack of respect for


women.

It fails to see that women (should) have full and equal rights and that any
sexual activity needs to take those rights into account. It refuses women
the right to not only choose, accept and initiate sexual activity as they see
fit, but equally to refuse any sexual activity at any time, under any
conditions, according to their own desires.

A culture that doesn’t value a woman’s voice, that does not listen to
women, will have trouble respecting a woman’s right to choose when,
where, how and with whom she engages in sexual activity. Such a culture,
as we know only too well, perpetrates violence against women at alarming
levels.
- Kate Ravenscroft, 10 Reasons We All Need to Care About Sexual Violence
Why necessary?
5) The United States needs to prove our
international commitment to equality.

• Many other countries - including Iraq, Japan, and


emerging nations since the 1950‘s - specifically affirm
the legal equality of the sexes in their governing
documents.

• CEDAW has been ratified by all but 7 countries in the


world: Iran, Sudan, Somalia, Nauru, Palau, Tonga and
the USA. If the US is a leader--what are we saying?
What about Minnesota?

• MN State ERA introduced in 1983 as House File #1


and Senate File #1

• Minnesota Laws: 116 statutes with gender


classifications have been overturned in MN since 1972
(current laws not protected)
• The Constitution is the foundation on which all laws
are based. It states the fundamental beliefs and
principles of our state.
• The MN Constitution protects hunting, fishing and
a state lottery... WHY NOT WOMEN?
24 states have added Equal Rights
Amendments to their own Constitutions

Maine just
added in 2018!
Oregon added
in 2014
Nebraska
added in 2008

ERA adopted in the 1800’s


ERA adopted from 1972-1982
ERA adopted in 1998
Sex discrimination protection
Benefits for men…

• Parental custody issues


• Paternity leaves for men
• Acceptance of men in non traditional work
• Acceptance of pay equality
• Equal application of benefits
Benefits for LGBT…

• States with ERAs adopted were 4 times more


likely to have accepted marriage equality
before it was decided by the Supreme Court
• Acceptance of gender identity and gender
expression
• Cultural shift
• Affirming that discrimination of any kind is not
acceptable under the law
IV. STRATEGY

HOW DO WE MAKE THIS


HAPPEN?
Minnesota Strategy:
Legislation & Ballot Initiative
• Grassroots:
community by community
education, awareness & citizen
lobbying

• TWO bills:
1) Pass an ERA for the
Minnesota Constitution

2) Memorialize Congress to act


on the Federal ERA
National Strategies:
• Three, Two, One State Strategy:
- Now only 1 more state need to ratify (maybe
Virginia, Missouri, North Carolina, Florida?)
- Congress may need to pass a bill to reinstate
the timeline

• OR Start Over:
- Rewritten, reintroduced, passed with 2/3
majority & sent back to the states for ratification
- New amendment that is explicit and makes
clear that race is included
- Similar to other constitutions around the world
ONLY ONE MORE TO GO!

Ratified Ratified
in May 2017! in May 2018!

Ratified

Passed in 1 body

Not ratified
Join us!
Spread the word, call your federal & state representatives,
volunteer, or donate.

For more information:


www.ERAmn.org

Thank You!