Episode 12: A New Era for the ERA

Pat Spearman: It is not a law that allows people to marry the Eiffel Tower. It is not a law to allow bestiality. It is not a law that allows unfettered abortions, it is not a law that negates social security benefits for spouses, it is not a law that prevents men from opening doors for women… it is not a law that forces women into combat.

Nahanni Rous: That’s Nevada State Senator Pat Spearman, advocating for a law that guarantees equality for men and women. In March 2017, Nevada ratified the Equal Rights Amendment... 95 years after it was first introduced to Congress, and three and a half decades after the deadline for ratification expired.

Pat: The Equal Rights Amendment, or the ERA, is about Equality for all citizens, and placing that guarantee in our constitution. Nothing more.

[Theme Music]

Nahanni: I’m Nahanni Rous with Can We Talk?, the podcast of the Jewish Women’s Archive.

Nahanni: Back in the 1970s, Congress passed the Equal Rights Amendment. For a while, it looked like it might sail through the ratification process and become part of the Constitution. But it fell just three states short of the thirty-eight needed for ratification. Congress had imposed a deadline, which came and went in 1982. The Nevada vote is part of an effort to revive the ERA. But there's plenty of opposition, as there was from Nevada State Senator Joe Hardy.

Joe Hardy: Surely we must admit to ourselves that there is a difference between the sexes. These differences cannot be negated by a law nor a constitutional amendment. I will be voting for families, for children, for celebrating the differences of our God-given genders, and for a more stable society with safeguards for women and children.

Nahanni: This family values argument has been used against the Equal Rights Amendment since it was first introduced to Congress in 1923. Conservatives have maligned the ERA in all kinds of ways. That’s why Senator Spearman defended it so vigorously.

Pat: It is not a law that allows unfettered abortions. It is not a law that negates social security benefits for spouses. It is not a law to prevent men from opening doors for women, it is not a law that forces women into combat.

Nahanni: Here's what the Amendment does say: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” That’s it. The whole thing.

[Theme Music]

Nahanni: This month on Can We Talk? we’re looking into the history of the Equal Rights Amendment. What happened to it, and do we still need it? What does our Constitution say about gender equality? To start, I wanted to find out what Americans know about this, so I headed to the National Mall.

[Beeping; Crosswalk automated voice: “Walk sign is on to cross constitution northwest.”]

Nahanni: Hi, excuse me. I produce a podcast and I’m doing a survey. Do you mind if I ask you one question? Does the U.S. Constitution guarantee women equal rights?

Girl 1: No?

Woman 1: Yes.

Man 1: No. It has some rights but not fully equal rights.

Woman 2: Yes. Because it makes no difference between human beings, men or women.

Man 2: I think that it says that every man, so I assume that includes women as well.

Woman 3: No, Sorry, you can ask my husband.

Woman 4 : Oooh… I don’t think I’m well versed in the Constitution to really make an educated comment on that.

Nahanni: Do we have an Equal Rights Amendment in the Constitution?

Woman 5: Yes, we do. Yes. Long time ago.

Man 3: I remember the Equal Rights Amendment fight, but it wasn’t passed at that time I don’t think.

Woman 6: Interesting, I thought it was.

[Beeping; Crosswalk automated voice: Wait. Wait. Wait.]

Nahanni: There’s a lot of confusion out there about women’s Constitutional rights. Surveys show that around 90-percent of Americans support an Equal Rights Amendment, and... most people mistakenly think it’s already part of the Constitution. That misunderstanding is only part of the uphill battle advocates face. Our next stop is an office on K Street in downtown DC.

[Ambien noise; music; footsteps]

Bettina Hager: I’m Bettina, so nice to meet you!

Nahanni: You too…

Nahanni: Bettina Hager is the Director of the Equal Rights Amendment Coalition. She’s the coalition’s one full-time staff member. Bettina grew up with a feminist mom and a strong sense of justice. But she was born in the 1980s, after the deadline for ratifying the ERA had passed.

Bettina: So I had zero awareness of the ERA growing up. Zero.

Nahanni: But she was aware of discrimination and personally experienced sexual harassment. She took college courses that helped her see gender discrimination as systemic. Now, she thinks the Equal Rights Amendment has the potential to restart a national conversation about equality.

Bettina: And that conversation is important. I’ve spoken to young women who feel that conversation hasn’t really been in their life. I think an Equal Rights Amendment, it allows women to look at how the issues that we face are linked together.

Nahanni: Young women, Bettina says, are used to thinking about their rights in a piecemeal way: reproductive rights, equal pay, and the right to a safe campus environment.

Bettina: None of these issues are truly separate. And it’s not the fault of the women’s movement at all that we have to look at it separately, but you can’t get anything done without having a strong focus.

Nahanni: And Bettina thinks a push to finally ratify the Equal Rights Amendment could help provide that focus. One strategy is to work state by state, gathering more ratifications until they reach 38. But even then, they’d be relying on Congress to remove the deadline. If Congress won’t act, advocates might challenge the deadline in court.

Nahanni: Not all women’s rights advocates agree that the ERA is worth spending time and money on. But Bettina thinks it’s critical. She points out that every Constitution adopted since World War II has some form of an equal rights amendment... including Constitutions the United States has had a hand in drafting.

Bettina: We’re not doing anything that is groundbreaking, we’re doing something to catch up to the vast majority of countries and that we have insisted other countries do. In Iraq and Afghanistan, we insisted that they put it in.

Nahanni: And in those other countries has it actually on the ground helped women? It may be there on paper...

Bettina: I think it depends on how seriously you take your constitution, and America takes its constitution very seriously. Whether or not I’m saying that another country is more advanced in women’s rights than ours, I’m not saying that. But I’m saying that they can, in their fight to advance women’s rights, point to a legal, fundamental document. And we don’t have that.

[Music]

Nahanni: Let’s look back at the history of the Equal Rights Amendment. In our last episode we talked about Alice Paul, who led the women’s suffrage movement. After women won the right to vote, Paul’s next project was a Constitutional amendment that she hoped would end sex discrimination, or at least provide a legal foundation for gender equality.

Ellie Smeal: The Equal Rights Amendment was first introduced to Congress in 1923. From the beginning, Conservatives were opposed... but Organized Labor, including working class suffragists, were also against it. They worried it would nullify hard-won protections for female workers.

Nahanni: The ERA was re-introduced in Congress every year, but rarely voted on. It languished for decades. Things began to change in the 1960s. As the Civil Rights Movement took center stage, the women’s movement was reinvigorated. Many women, like Eleanor Smeal, came to feminism through their involvement in Civil Rights. Ellie Smeal fought segregation during her college years at Duke.

Ellie: And then when I came out of school, if you didn’t notice you were being discriminated against if you were a woman, you weren’t paying attention.

Nahanni: In law schools and medical schools there were tiny quotas for women: 3, or 8-percent; women were routinely passed over for promotions; want ads might call for male help or female help.

Ellie: I didn’t like racial discrimination. I don’t like sex discrimination. I don’t like LGBTQ discrimination… I just don’t like treating people unfairly. It’s all the same thing.

Nahanni: Ellie Smeal is President of the Feminist Majority Foundation, which advocates for women’s equality around the world. She’s been an activist most her life. In the late 1970s and again during the ‘80s she was President of NOW, the National Organization for Women. NOW was leading the charge for the ERA. In 1971, Ellie came to Washington for a demonstration. It was a silent vigil on the steps of the Senate.

Ellie: So we stayed all day on this crazy silent vigil, which i have to say is the last one I ever participated in, because I can’t stand being silent that long. It drove me nuts.

Nahanni: After the vigil, they went to a historic brick house not far from the Capitol. These days it’s a museum, we stopped by there in the last episode of Can We Talk?, but back then it was the headquarters of the National Women’s Party. A small group of elderly suffragists were living in the house... including Alice Paul.

Ellie: It was all dark. And I said, you know, I think we’re too late. But the others said, no no no, we just can’t see, there might be people in there. They told us to come here. Anyway, they kept pounding on the door.

Nahanni: They knocked and knocked until finally, a small elderly woman in a nightgown cracked the door open.

Ellie: I turned to my friend and said, oh my god, we woke them up, this is crazy! And she said, no no no. And the woman said, “Are you the NOW women?” And we said, yes.

Nahanni: The woman who opened the door in her nightgown was 85-year-old Alice Paul, the leader of the women’s suffrage movement from the 19-teens.

Ellie: And she flings open the door, grabs from the wall a bell, starts ringing the bell, and saying, “They’ve come they’ve come, they’ve come!” And she goes up this flight of stairs yelling they’ve come, and all these other older women come and I’m looking at my friend I’m saying see what you’ve done, you’ve woke these people up, this is crazy. And she said, “Ellie, you’d be excited too if you waited 50 years for reinforcements.”

Nahanni: Those reinforcements came, bringing with them mass demonstrations, sit-ins, and lobbying. Public opinion seemed to be shifting. In 1972 the Equal Rights Amendment passed both houses of Congress. President Richard Nixon signed it.

Ellie: Oh, it was so happy, it had passed. In those days we didn’t think we’d ever get defeated on anything. We didn’t know defeat. We were marching forward. [Laughs]

Nahanni: After Congress passed the Equal Rights Amendment, Ellie and her colleagues went to see Alice Paul again. After all, she had been the one to introduce the amendment 50 years before. But Alice Paul wasn’t celebrating.

Ellie: She’s sitting at Susan B. Anthony’s desk in that room, and she’s crying.

Nahanni: Congress had put a time limit on ratification.

Ellie: And she thought it was a trick.

Nahanni: Congress could look good for passing the amendment, but Alice Paul thought some states would just run the clock.

Ellie: She’s a smart woman. Dedicated, and with all of her faculties.

Nahanni: And she was right.

Ellie: And she was right.

Nahanni: Thirty-five states ratified within the first couple of years. Only three more and the amendment would make it to the Constitution. But then the opposition organized. Its public persona was Phyllis Schlafly. She was a conservative lawyer, writer, and activist who died just this past fall. Here she is in a 1973 TV interview:

Phyllis Schlafly: ERA won’t give women anything which they haven’t already got or have a way of getting. But on the other hand, it will take away from women some of the most important rights and benefits and exemptions we now have.

Man: What would be an example of that?

Schlafly: Well, a great glaring example on which there is full agreement between the proponents and the opponents is the matter of the draft.

Nahanni: The Vietnam draft had ended by then, but its shadow lingered. Ellie Smeal says for the most part, the women’s movement was in favor of including women in a draft... though they opposed the Vietnam war. Phyllis Schlafly also called the amendment an assault on the family.

Phyllis: They want to give the homosexuals and the lesbians the same dignity as husbands and wives!

Nahanni: Gay marriage... women in combat? These things have become a reality without the Equal Rights Amendment. But Schlafly had many arguments against the ERA. She claimed it would do away with separate bathrooms for men and women, social security benefits for wives, and alimony payments. As for workplace discrimination? Schlafly said that women didn’t want the higher paying jobs. Here she is in a 1982 speech.

Phyllis: Most women like the nice sit down jobs in an air conditioned office. And that is the trade-off women take in terms of pay.

Nahanni: Schalfly would not acknowledge that women were systematically paid less for the same work and looked over for promotions. If women made less than men, she said, it showed their priorities were in the right place. Feminists were degrading women who stayed at home raising children.

Phyllis: I get fed up with the women’s liberationists running down motherhood and saying that it’s a menial, degrading career and that the home is a prison from which women should be liberated and brought out into this wonderful workforce.

Nahanni: Schlafly’s message resonated with many women... and men. She neglected to share the fact that she herself was a working mother with a law degree. Part of her shtick was showing up with homemade bread and fresh pies for legislators. Schlafly liked to say that she and her “stop ERA ladies” were up against Hollywood celebrities, the liberal media, and the pushy women’s organizations.

Phyllis: But a little band of unflappable stop ERA ladies in red, headquartered in my kitchen, on the bluffs of the Mississippi River in Alton, Illinois set out to challenge all the big guns of modern politics. [Clapping]

Nahanni: Presidents Richard Nixon, Gerald Ford, and Jimmy Carter supported the Equal Rights Amendment. But in 1980, the Republican Party, with Ronald Reagan in the lead, repositioned itself as the party of conservative family values... against abortion, against homosexuality, and against the Equal Rights Amendment. The 1982 deadline for ratification came and went. Schlafly and her “stop ERA ladies” were credited with helping derail the ERA.

Phyllis: And the big lesson we learned from this, is that in the marvelous process of self government, given to us by our founding fathers, it is possible for the people to defeat the entire political and media establishment. And to win despite incredible odds.

Nahanni: She claimed to have led a grassroots campaign. But Ellie Smeal says Schlaffly was a smokescreen, to make it look like a fight among women.

Ellie: I went to every state myself… I knew who the lobbyists were. The lobbyists were business guys. We had massive lobbyists against us, especially the insurance companies.

Nahanni: That’s because health insurance companies charged women more for coverage... and by the way, that practice was outlawed by the Affordable Care Act, aka Obamacare. Back in the 1970s, businesses were protecting their bottom lines. By then, women made up more than a third of the workforce.

Ellie: Who benefits by paying adult women less, but corporate America? So you had the national association of manufacturers against us, you had the chambers of commerce against us, you had business interests against us.

Nahanni: Ellie says the insurance companies even funded Schlafly’s organization, the Eagle Forum.

Ellie: I come back to money because I do believe that if you didn’t make money off of race and sex discrimination and immigrant status, we wouldn’t probably have this much discrimination.

Nahanni: But it’s not just economic inequality… Ellie has also spent her life combatting violence against women, working for equal access to education and reproductive rights. She says we need an Equal Rights Amendment because the legislation is too vulnerable. She gives the example of Title IX, the 1972 federal law that prohibits sex discrimination in federally funded activities and education.

Ellie: The biggest achievement of the women’s movement was Title IX… And Reagan tried to gut it, and did. And we had to go in and fight for it being restored. That took many years of my life. In fact, 40 years of my life, I have been protecting Title IX.

Nahanni: Ellie has fought these battles all her life, and she has seen a lot of steps forward, but too many steps back. The question is, how would the Equal Rights Amendment help?

Ellie: The laws are not on our side and they’re not strong enough. I am sick to death of all the exceptions. We can’t win this statute by statute, law by law, state by state. You can’t do this this way. We need a far stronger commitment.

Nahanni: Most feminists agree that our society needs a stronger commitment to equality, but some don’t think the Equal Rights Amendment is the way to get there. Some women I spoke to, even a few who campaigned for the ERA in the 1970s, now think it’s a distraction from more pressing issues. They would rather see resources devoted directly to safeguarding reproductive rights, working for racial justice, and combatting sexual violence.

Nahanni: Some legal experts also don’t think an Equal Rights Amendment is necessary. They argue that the equal protection clause of the 14th amendment is now interpreted to include equal protection for women. But not everyone reads it that way. Here’s the late Supreme Court Justice Antonin Scalia speaking in a forum at the University of California.

Supreme Court Justice Antonin Scalia: Certainly the Constitution doesn’t require sexual discrimination... discrimination on the basis of sex... the only issue is whether it prohibits it. It doesn’t!

Nahanni: What he means is that lawmakers in 1866 did not intend the 14th amendment to apply to women and therefore it doesn’t. Justice Ruth Bader Ginsburg does think the equal protection clause applies to women. But she also thinks the Constitution should be stronger when it comes to gender equality.

Supreme Court Justice Ruth Bader Ginsburg: If I could choose an amendment to add to this constitution, it would be the Equal Rights Amendment. [Clapping]

Nahanni: This is Justice Ginsburg speaking to an audience at the National Press Club in 2014.

Justice Ginsburg: It means that women are people, equal in stature before the law. I think we have achieved that through legislation, but legislation can be repealed, it can be altered. That principle belongs in our constitution. So I would like my granddaughters when they pick up the constitution, to see that that notion that women and men are persons of equal stature, I’d like them to see that that is a basic principle of our society.

Nahanni: But how do we get there? Even though the Equal Rights Amendment was never ratified, the campaign in the 1970s certainly helped move our legal system forward. Now, the fight to revive the ERA is just one aspect of a re-awakening feminist movement. Ellie Smeal knows as well as anyone that social change is not linear. It takes continuous action, flexibility, and optimism.

Ellie: There is no manual, no blueprint for how to get to equality. You just got to do it. And if you see an injustice, you gotta stand up. Don’t think if it’s the most important thing to do, or the least important. You never know when victory is around the corner.

Nahanni: The story of the Equal Rights Amendment spans nearly a century, four generations of women, passing the torch in a push for equality. Ellie Smeal tells us victory may be just around the corner. Part of that victory may be that in every generation we push the bar a little higher.

Nahanni: Thank you for joining Can We Talk?, the podcast of the Jewish Women’s Archive. Our team includes Executive Director Judith Rosenbaum and Social Media Manager Emily Cataneo. Ibby Caputo edited the script. Our theme music is by Girls in Trouble. Special thanks this month to Bobbie Francis, Barbara Dobkin, and Jen Deaderick. Jen curates an ERA facebook group, and she’s working on a graphic novel about the Equal Rights Amendment. Visit us online at jwa.org/canwetalk to listen, subscribe, and send your friends a link to your favorite episodes. If you listen on iTunes or Stitcher, please review us. Also, share this episode on social media with #trypod. That’s T-R-Y-P-O-D. That’ll help new listeners discover the show.

Nahanni: We’re looking for sponsors for Can We Talk?! If you like our podcast and want to support it, please make a donation at jwa.org or contact us.

Nahanni: I’m your host, Nahanni Rous. In the meantime, I’ll be working on our next story, and listening to my favorite Broadway musical, Hamilton.

Hamilton audio: “We hold these truths to be self evident, that all men are created equal. And when I meet Thomas Jefferson, I’ma compel him to include women in the sequel. Work!”