Would Our Lives Be Different If the ERA Hadn’t Been Defeated?

Phyllis Schlafly, who died on Monday, will forever be known as the woman who defeated the Equal Rights Amendment. It was the lede in her obituaries, and that’s how she wanted it. As the legality of same-sex marriage became more and more inevitable, she would still crow about how much sooner it would have been legal if she hadn’t defeated the ERA. It had been a significant achievement.

The defeat of the Equal Rights Amendment in the late 1970s was the first big win for cultural traditionalists in the U.S. in a long time. A decade earlier, we’d seen the passage of the Civil Rights Act of 1964, which was a turning point: It not only expanded civil- rights protections on a racial and ethnic basis, resulting in the Dixiecrats flouncing from the Democratic Party, taking their sick obsession with preserving segregation to the GOP where it could slowly rot away the core of Lincoln’s party—it also, thanks to a last-minute amendment, provided the first legal basis for gender equality in the workplace. The National Organization of Women was founded specifically to pursue cases that would use the Act as a tool to overturn gender discrimination.

It’s hard to communicate how incredibly popular feminism—or “Women’s Liberation,” in the parlance of the time—became in the years after the Act was passed. Politicians had to prove their feminist bona fides to get women’s votes. By the early ’70s, the Ding-A-Ling sisters were singing “I Am Woman” on The Dean Martin Show. Women’s Lib was that mainstream.

The Equal Rights Amendment was first brought to the Congress in 1923 by Alice Paul, on the heels of the ratification of the 19th Amendment, which barred all states from denying voting rights on the basis of sex. The ERA aimed to bar the denial of any civil rights based on sex. It was a step too far, and never made it out of committee. By 1940, though, politicians were concerned enough with courting the women’s vote that its passage was added to the GOP platform. It was added to the Democratic platform, against the wishes of their labor branch, which feared the competition for jobs, in 1944. It was hoped that this would soften the blow for all the women sent back to the kitchen so their factory jobs could go to the men returning from World War II. It was something the parties, controlled by men, could back symbolically without having to take real action on it.

The ERA lived for a long time in the wishful thinking world of party platforms. Eventually, a notion sprang up that men and women actually were already equal, but in separate spheres. The overwrought celebration of the domestic sphere was an appeasement to women. Everyone was going to pretend that we all valued housework as much as we valued paid work, and women could be happy with that.

The iconic housewife-vacuuming-in-pearls sitcoms of the 1950s reflect this equality of the separate spheres concept, and it’s the source for all those wacky episodes in which the husband tries to do housework for a day.

It was the feared loss of this perceived respect that upset women who were wary of feminist progress. Betty Friedan’s Feminine Mystique, with its exposure of the “problem with no name,” was an awakening for many educated, middle-class women who felt cooped up and limited by their housewife roles At the same time, it was taken as an insult by many women proud of their work keeping their homes and families in order, especially those who were the first generation of women in their family who hadn’t had to work outside the home. This perceived, and real, condescension to housewives would prove to be the Second Wave’s fatal flaw.

Even while the Equal Rights Amendment rode a wave of popularity, its opponents were beginning to exploit this rift.

Robin Morris, an assistant professor of History at Agnes Scott College, is currently writing a history of anti-ERA women entitled Goldwater Girls to Reagan Women. In an interview, she explains, “Many ERA opponents felt abandoned, or worse, demeaned by second-wave feminists. Many of these women had worked outside the home before marriage, had not attended college, and saw being a stay-at-home mother as realization of the American dream. They had gone from working class to middle class and the housewife status was a big part of both the idea and the image. Then, radical feminism comes along with its comparison of marriage to prostitution or marriage to slavery and these women who had spent the past decade in the home were offended and excluded. This feminism did not speak for them. Other women who did work outside the home also felt feminists did not speak for them—especially women in blue- and pink-collar jobs. They thought the ERA would protect college-educated, white-collar women, but remove job protections like rest breaks for women, weight limits for what women could carry, and other safety and health measures that protected women.”

In reality, the Equal Rights Amendment would not automatically remove any gender-based protections. It would subject them to what’s known as “strict scrutiny,” but they could still be upheld in some cases for health and privacy concerns. The flip side of the argument is that removal of different weight limits for men and women, and things of that nature, would remove a stigma on women working alongside men in the same jobs, a perception that they were less-than or second-class. The larger question was about how much a focus on protection limited women’s participation in the workforce, and the public sphere.

The ERA passed the House and Senate by huge margins in 1972, a crowning achievement for the Second Wave feminists, who had been overturning gender discriminating laws right and left since 1964. It was signed by President Nixon, of all people. The states jockeyed to be the first to ratify. Its inclusion in the Constitution seemed inevitable.

The 19th Amendment would never have gotten into the Constitution without the efforts for Christian, small-c conservative housewives. The Temperance movement, which sought to ban the sale of alcohol, was the driving force behind its passage, and that movement relied on small meetings over tea in living rooms across the country. The public protests of Alice Paul and others got the amendment its vote in the House and Senate, but it was only ratified because Harry Burn, Tennessee state representative, got a letter from his mother, Phoebe Ensminger Burn, urging him to vote yes. Mrs. Burn had been to, and possibly hosted, a few Temperance teas. Certainly, as a prominent woman in Tennessee, she’d been courted by Carrie Chapman Catt, and other suffragists.

The domestic sphere has always provided great cover for secret organizing, which is why the perceived slight to housewives was so detrimental to the Second-Wave feminist cause. It was anti-ERA women who started organizing over tea and cookies. Schlafly, and her compatriots, stoked this fear of the loss of home and hearth, and she built on the networks women had always used: garden clubs, church groups, etc. She also had a serious background in politics, so she understood options. Robin Morris explains:

“Schlafly sent out a list of suggested speakers to each state chairman (and yes, they were called chairmen—even though they were all women who held the position) and her list included getting speakers like a woman union member, a flight attendant, a teacher, a stay-at-home mom, a woman factory worker, a preacher, and an African-American woman.”

Schlafly used all of her skill and all of her resources to frame the ERA as an existential threat to decent, traditional values. While most of the nation thought the ERA was a done deal because it had been signed by the president, Schlafly and her Christian conservative cohorts focused their attention on the state legislatures, and locally involved citizens.  By 1974, the rush to ratify had slowed to a trickle. In 1977, Indiana became the last state to ratify the ERA. Though it took until 1982 for it to be formally defeated, it had been staggering for those last few years.

The successful blockage gave Christian conservatives hope that they could turn back the tide of change. Through the organizations they built, they got Ronald Reagan, who promised to be on their side, elected president. Though his promises didn’t pan out, they continued to use their power locally to resist the Roe v. Wade decision, impede the progress of LBGTQ rights, and get like-minded citizens into office, first on school boards, then state legislatures, then the Congress. The Koch brothers continue to use this state-based approach to defeating liberal progress. This strategy has held back the implementation of nationally decided changes.

Meanwhile, thanks to the long-term efforts of countless progressives, the country has continued to change anyway. Women actually did enter the workforce in large numbers. Ironically, Reagan’s economic policies made single-income families a luxury, boosting that trend. The opening of law schools to women means that there are now more female lawyers than male lawyers, meaning smaller battles of gender equality can be waged and won in greater numbers. Schlafly and her ilk—she mentored Sarah Palin, Michelle Bachmann, and Ann Coulter through her Eagle Forum—kept their sand castles propped up for a while, but the tide came in anyway.

This is not to say we don’t still need the ERA. As recently as 2011, in an interview with California Lawyer, the late Justice Antonin Scalia insisted, as he always had, that the 14th Amendment does not guarantee gender equality or protect against sex discrimination. Which meant that he, as a strict originalist, felt no obligation to rule for gender equality because it was not guaranteed by the Constitution. The years of precedent didn’t matter to him.

That the years of precedent regarding gender equality were engineered and pursued by his college and close friend Justice Ruth Bader Ginsburg didn’t seem to matter either. Though her work matters to the majority of jurists who have to rule on these issues. Still, she still would rather have the solidity of a Constitutional amendment, as she stated in a 2014 speech to the National Press Club:

“I think we have achieved that through legislation, but legislation can be repealed, it can be altered. So I would like my granddaughters, when they pick up the Constitution, to see that notion – that women and men are persons of equal stature – I’d like them to see that is a basic principle of our society.”

Nonetheless, the legislation still stands.

Schlafly failed, ultimately. The world would have been different with the passage of the ERA mostly because change would have happened faster. We still need the ERA, as a guarantee of the rights we’ve gained, and as a tool to further expand rights, but significant progress was achieved without it. The ratification of the ERA would not be merely a symbolic gesture, but Schlafly’s defeat of it was.

 

Jen Deaderick is writing a cartoon history of the Equal Rights Amendment, and runs the popular, if occasionally controversial, Equal Rights Amendment page on Facebook.