The ERA: A New Foundation for Equality in the United States

By Ting Ting Cheng / Harvard ALI Social Impact Review

American democracy is an unfinished project. Our nation was founded on principles of equality and justice for all, but living up to these foundational principles is the animating challenge of our history.

In 21st century America, the battle for gender equality persists. In nearly a century after it was first proposed in Congress, the Equal Rights Amendment’s (ERA) simple guarantee that “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex” is still seen as a radical notion by some.

Yet despite opposition and obstacles, the ERA is closer than ever to enactment. Our 18th century Constitution — drafted without the inclusion of women, people of color, native people, or immigrants — is the most difficult to amend in the world. Yet, the ERA has met all of the Constitutional requirements for amendment set out in Article V. It has been passed by two-thirds of both houses of Congress and ratified by 38 state legislatures.

Now is the time to overcome the remaining hurdles and permanently enshrine the ERA in the Constitution where it belongs. In doing so, the US would join the ranks of every other democratic nation across the globe, all of which already protect women in their constitutions. The ERA has the potential to inaugurate a society-wide effort to repair systemic sex-based inequality and dismantle structural gender discrimination, far beyond what our existing laws protect. It will inspire a new generation of leaders to revisit and modernize the constitutional ideal of equality for all rather than settling for a broken system.

With the midterm elections upon us, the fight for equality and justice has taken on new urgency. As political polarization and ideological extremism intensify, core tenants of settled law such as reproductive rights and voting rights are unraveling. Without explicit constitutional protection for sex equality, the hard-won victories of social progress can be reversed by politicians and judges and by unexpected crises like the COVID-19 pandemic. Without the ERA, the rights of women and sexual minorities are not secure — and under this Supreme Court in particular, so much more is at risk.

Earlier this year, the newly-empowered radical majority on the Supreme Court eliminated the longstanding constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization. The logic behind the Dobbs decision makes it clear that other cherished rights are also in serious jeopardy, especially the right to marriage equality, contraception, and same-sex intimacy. Each of these rights is based on the understanding, rooted in the past sixty years of precedent, that the Constitution protects a set of “privacy” decisions — regarding bodily autonomy, family, intimacy, and marriage — from government intrusion. In Dobbs, the majority signaled its disdain for this doctrine.

In their dissent, Justices Breyer, Sotomayor, and Kagan explained that “[a]ccording to the majority, no liberty interest” protects a woman’s right to make the choice not to proceed with a pregnancy “because (and only because) the law offered no protection to the woman’s choice in the 19th century.” The majority’s problematic logic, the dissenting Justices observed, would not only invalidate decisions that recognize and protect fundamental privacy rights such as those mentioned above, but could also impact the right to interracial marriage and the right to be protected against forced sterilization.

The ERA would provide a new textual basis for protecting reproductive rights and the related fundamental rights at risk. It would further anchor these rights as a basic matter of equality and equal participation in society, beginning with the ability to decide whether, when, and how to have a family. In fact, prior to the Supreme Court’s holding in Roe v. Wade (1973) that abortion was protected by the Constitutional right to make decisions about the most intimate issues facing women, many women’s rights advocates, most notably Justice Ruth Bader Ginsburg, believed that reproductive rights should be protected not only because of privacy concerns but also because it helped guarantee women’s equal treatment in society. Following the reasoning of the Supreme Court’s 2020 decision in Bostock v. Clayton County — which held that federal law prohibiting sex discrimination in employment also includes sexual orientation and gender identity discrimination — the ERA could immunize other privacy rights such as marriage equality and same-sex liberties from the threat of Supreme Court reversal.

The devastating impact of the Supreme Court’s decisions from last term did not stop with Dobbs. The Court also struck down New York state’s 100-year-old restrictions on carrying guns in public, curtailed the Environmental Protection Agency’s ability to regulate the greenhouse gases that are causing global warming, and elevated religious liberty as a top-tier right, used as a justification to undermine other equally important individual rights. These decisions diverge far from public opinion and impose a shockingly narrow reading of our Constitution.

Given the Supreme Court’s new methodology of constitutional interpretation, the federal courts can no longer be relied upon to vindicate our civil rights.

And yet, there is reason to hope that with instability comes new possibility. Looking ahead, the ERA represents an opportunity to rebuild a stronger constitutional foundation for our country and its people.

This new framework would prioritize a substantive, rather than formal, approach to equality. The concept of formal equality — a sex-blind or sex-neutral approach to decision-making employed by the courts — can often end up blocking efforts to improve conditions for those who need help the most. On the other hand, substantive equality, embraced by transitional democracies such as post-Apartheid South Africa, acknowledges the roots of inequality with the goal of proactively lifting up historically marginalized groups.

In recent years, constitutional sex equality protections often have come to the rescue of men who claim they’ve experienced sex-based bias. Consider the recent decision from the 6th Circuit Court of Appeals, Vitolo v. Guzman, which struck down a key provision of the COVID-19 stimulus package that fast-tracked the aid application process for restaurant owners who were female, people of color, or both. Notwithstanding overwhelming evidence showing that women- and people-of-color-owned businesses were hardest hit by the effects of COVID, Judge Amul Thapar (a Trump appointee) held that the government “failed to show that prioritizing women-owned restaurants serves an important government interest.” 

The Vitolo decision illuminates why we need an ERA — to deliver on the promise of equality when existing constitutional prohibitions against discrimination have been ineffective in addressing widespread sex- and race-based inequality. Without an ERA, the clearly documented disadvantages suffered by women and people of color, presented and ultimately rejected in Vitolo, would not be adequately addressed despite the aims of strong government public policy to do so.

Instead, courts and lawmakers could apply a substantive equality framework. In the area of family leave, for example, lawmakers could consider the distinct needs that women have compared with men and therefore ensure that women have adequate paid family leave, along with additional support systems such as housing, food security and childcare services.

There is reason to hope. The ERA is closer to final ratification than ever before. While the ERA has met all of the constitutional requirements for ratification, the main legal obstacle that remains involves a time limit for ratification that was in the preamble to Congress’s initial authorization of the ERA in 1972. This time limit expired in 1982, well before the final three state ratifications in Nevada in 2017, Illinois in 2018, and Virginia in 2020.

History shows that the process for constitutional amendments has never been clear cut, as scholars David Pozen and Tom Schmidt have explained. The legitimacy of the congressionally imposed time limit, which has no basis in the Constitution itself, is contested and should not stand in the way of the ERA now that it has been ratified by 38 states. Critical towards putting the ERA in the Constitution, Congress is currently acting to remove the deadline, with the House of Representatives passing a joint resolution in two legislative sessions in 2020 and 2021, and the Senate currently considering the matter. 

A vibrant, multi-faceted movement for constitutional gender equality is growing. The ERA has sparked new engagement at the state level, where 26 constitutions already contain state-level ERAs. In this midterm election, Nevada voters will be deciding whether to add an ERA to their state Constitution that would broadly protect equal rights regardless of sex, as well as “race, color, creed, sexual orientation, gender identity or expression, age, disability, ancestry, or national origin.” Legislators in New York state also achieved first passage of their state ERA, even more expansively worded than Nevada’s to additionally protect abortion and pregnancy outcomes. This past year, lawmakers in Maine, Minnesota, and Vermont have taken substantial steps toward amending their constitutions with ERAs that would protect and promote equality more robustly.

The ERA has the potential to deliver on the unfulfilled promise of our nation’s founders to protect “justice for all.” We should take hope from the long and slow progress of a multigenerational and intersectional movement of concerned citizens to amend our constitution with an ERA. Working together, we can create a “more perfect” union. This election cycle presents a chance to rebuild our Constitution and country on stronger foundations. Those of us who care about gender equality should support candidates who make the ERA a priority and contact elected officials about the importance of securing final ratification of the ERA. Expanding popular support for the ERA is also critical and can be accomplished through increasing civic engagement in our communities and sectors, engaging youth on the importance of the ERA, holding public conversations in educational institutions, libraries, town halls, and advocating for State ERAs and state ratifications of the federal ERA.

A constitutional ERA would strengthen our participatory and pluralistic democracy. It would benefit all, no matter the ideology — protecting those who wish to be free of government intrusion into the most intimate decisions in one’s life and providing a mechanism for transformational social change to improve the lives of the most marginalized and ensure equality. The conversation is far from over — in some ways it is beginning anew.

By Zehra Imam / Mondoweiss

As Palestinians are slaughtered by the thousands in Gaza and violently attacked during night prayers in the al-Aqsa Mosque by Israel, the West Bank endures massacres that at times go unnoticed during this holy month. I have spent my Ramadan in conversation with a friend from Jenin. 

Much has changed since I visited Aseel (not her real name) in August 2023. There are things I saw in Jenin that no longer exist. One of them is my friend’s smile and her spark.

Usually, they say Jenin is a small Gaza. During Ramadan, because the attacks generally happen at night, people are an easy target because they are on the streets late at night. In the past, it was rare for the IOF to enter during the day. Now, they attack during the day; their special forces enter, and after people discover them, their soldiers come within minutes. 

Every 2-3 days, there is a new attack in Jenin. In our minds, there is a constant ringing that the IOF may come. We don’t know at what time we will be targeted or when they will enter. There is no stability in our lives.

Even when we plan for something, we hedge it with our inshallahs and laugh. There are a lot of ifs. If they don’t enter the camp. If there are no martyrs. If there is no strike.

On the second day of Ramadan, they attacked my neighborhood again. We thought it was a bombing because it started with an explosion, but the house was shaking. We were praying fajr, and everyone was screaming outside. The sound of the drone was in our ears. “No, these are missiles,” we realized.

There was panic in the streets. Women fainted. People had been walking back from praying at the mosque, and some were still in the street. Alhamdulillah, no one was hurt, we say.

The balcony to the room at my uncle’s house where we slept had fallen. It no longer had any glass, and a bullet entered my uncle’s bedroom and reached the kitchen. The drone hit the trees in front of our house. The missiles destroyed the ceiling, and the rockets reached my neighbor’s house on the first floor, exactly in front of our house.

Since October 7, Jenin has become a target. There is a clear escalation in the camp and the city. The IOF has used many different weapons to kill us here. They have even been aggressive toward the infrastructure, as though every inch of our city was resisting them.

They destroyed much of the camp, and there is no entrance now. The arch is gone, and there is no sign reminding us that Jenin refugee camp is a temporary place. There is no horse. Only the street is left. You have the photographs. You were lucky. They changed the shape of the camp, and everything has been destroyed.”Aseel

The first time Aseel and I met in person was in Nablus at the Martyrs Roundabout. As we caught up, we ate a delicious concoction of ice cream, milk, nuts, and fresh fruit that was a perfect balm to the heat. She took me to some of her favorite places nestled within the old city of Nablus. A 150-year-old barber’s shop that felt like you had entered an antique store where plants reached the ceiling and where the barber was a massive fan of Angelina Jolie. A centuries-old house now called Tree House Cafe looked like a hobbit home from Lord of the Rings, where we hid away as she sipped her coffee and I drank a mint lemonade. We visited one of the oldest soap factories in the world with ingredients such as goat’s milk and olive oil, jasmine and pomegranates, even dates and Dead Sea mud.

We happened to chance upon a Sufi zawiya as we walked through a beautiful archway decorated with lanterns, light bulbs, and an assortment of potted plants, after which we saw a cobalt blue door on our left and an azul blue door with symmetrical red designs, and Quranic ayat like incantations on our right as doors upon doors greeted us.

The air was welcoming yet mingled with the memory of martyrs whose memorials took over the landscape, sometimes in the form of larger-than-life portraits surrounded by complex four-leafed magenta-white flowers; posters above a water spout next to a heart-shaped leaf; a melted motorcycle that, too, was targeted in the neighborhood that hosted the Lions’ Den. We stopped to pray at a masjid, quiet and carpeted.

After a bus ride from Nablus to Jenin, on our walk before entering Jenin camp, Aseel showed me the hospital right outside the camp. She pointed out the barricades created to keep the occupation forces from entering specific streets. This is the same hospital that the occupation forces blocked during the July 2023 attack, which now seems like a lifetime ago. 

What caught my eyes again and again were the two Keys of Return on top of the entrance of Jenin Camp that symbolized so much for Palestinians.

“This is a temporary station,” Aseel read out loud to me. “That’s what it says. We are supposed to return to our homes.”

“Netanyahu said he is planning another big attack, so the resistance fighters are preparing because it can happen any day,” she had told me that evening as we shared Jenin-style knafeh, baked to perfection. Then she stopped, looked at the sky, and said humorously, “Ya Allah, hopefully not today!” And we both laughed because of its potential reality. 

Dinner on the terrace at her uncle’s home was a delicious spread of hummus, laban, fries, cucumbers pickled by her aunt, and arayes — fried bread stuffed with meat. Then we moved the furniture to sleep on mattresses in a room that extended to the rooftop terrace with a breeze, overlooking Jenin Camp and the rest of Jenin City. We could hear gunshots in the distance. The drones were commonplace, and the heat did not relent. Temperatures soared, and the electricity was out when we woke up at 5 a.m. I heard her pray, and later, as we sipped on coffee and had wafters in the early morning at her home, my eyes went to a piece of tatreez, or embroidery, of a bird in flight framed on the wall. Her eyes followed mine and when I said I loved it.

“It used to be my grandfather’s,” she told me. “Of course it’s beautiful — the bird is free.” 

Unexpectedly, Aseel’s mother gifted me a Sprite bottle full of olive oil beholding the sweet hues of its intact health, which I would later ship secretly from Bethlehem all the way to Boston. And then Aseel came to me with a gift, too: a necklace that spoke succinctly about the right to return and live on this earth. Mahmoud Darwish’s poetry was held together with intricate calligraphy carved in the shape of Palestine’s landscape, and I was completely overwhelmed. 

“You are in Palestine, my dear,” she had smiled. “And you are now my family. This is your country, this is your second home, really.”

When I ask her about what brings her hope these days, Aseel tells me about her eight-year-old nephew.

He wanted to eat two meals. I told him that in Gaza they don’t have food. He was complaining about the food, and I told him, they don’t have water. And he heard me because he said, “today, we will only have one meal.” 

I’m amazed at how mature he is. He even said, “We won’t make a special cake on Eid because of the Gazans.” For me, this is a lesson to be learned. He is only eight years old, but he knows. 

We have lost a lot of people in Gaza, but here in the West Bank, we are succeeding because our new generation knows a lot. Ben Gurion would not be happy. He said of Palestinians, “the old will die and the young will forget.” No, the young ask even more questions. The new generation brings us hope. Hope is the new generation.

/sp

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