The ERA: Overdue Or Overreach?

By Shawne Wickham The New Hampshire Union Leader, Manchester

WWR Article Summary (tl;dr) As Shawne Wickham reports, "Even among ERA supporters, there's disagreement over how best to proceed. U.S. Supreme Court Justice Ruth Bader Ginsburg, long a champion of women's equality, told an interviewer earlier this year that she thinks starting over is the best path forward."


On Wednesday, residents and staff of Kendal at Hanover will don suffragist white and hold a small parade for Women's Equality Day.

The senior living community will mark the 100th anniversary of the 19th Amendment, which affirmed women's right to vote, with one of the few centennial events in New Hampshire that hasn't been canceled.

So if women have been voting for a century, why has an Equal Rights Amendment -- a Constitutional guarantee of equal rights for women -- been so difficult to pass?

And do we even need one anymore?

The country in 2020 is surely a lot different than it was in the early days of the ERA -- Congress sent it to the states in 1972 -- and the national conversation about equal rights has evolved.

The U.S. Supreme Court in 2015 approved same-sex marriage, and today people are talking about the rights of transgender individuals and what that should look like in our schools, workplaces and public restrooms.

And after the death of George Floyd in Minneapolis in May, the Black Lives Matter movement has pushed racial injustice to the forefront of political debate and public demonstrations.

Meanwhile, women have ascended to top positions of power and authority. House Speaker Nancy Pelosi is one of the nation's most influential political leaders. Sen. Kamala Harris just became the first woman of color to be nominated as vice president by a major political party. And a record number of women are serving in the U.S. Congress (101 in the House and 26 in the Senate), running Fortune 500 companies (37) and sitting on the U.S. Supreme Court (three).

Still ... America remains a nation where women have never attained the highest political office in the land. A historically diverse group of candidates ran in this year's Democratic presidential primary, including Harris and five other women, but voters in November will be choosing between two 70-something white men.

And despite equal-pay laws, the Washington-based National Women's Law Center reports that women at all education levels and in nearly every occupation still make less than men doing the same work.

NH an early adopter It's been nearly a half-century since New Hampshire passed the ERA, which consists of just two dozen words: "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex."

In fact, we might well have been the first state in the nation to ratify the amendment but for the rotation of the Earth.

After Congress passed the ERA on March 22, 1972, the Hawaii legislature quickly moved to ratify it, the first of the 38 states required to add the amendment to the U.S. Constitution. New Hampshire was close behind.

"It passed Congress in the afternoon and so Hawaii was able to ratify it first because they were still in session," recalled Elizabeth Hager, who was elected to the Legislature later that year. "We had to wait 'til the next day because it was so late in the day we weren't in session."

Supporters of equal rights here felt passing the federal amendment was not sufficient.

As a freshman Republican lawmaker, Hager was elected to serve as a member of the state's 1974 Constitutional Convention, and then-Gov. Walter Peterson appointed her as chairman of the Bill of Rights committee. She was the prime sponsor of Resolution 96, which proposed adding this sentence to Article 2 of the state Constitution: "Equality of rights under the law shall not be denied or abridged by this state on account of race, creed, color, sex or national origin."

The amendment was on the November ballot that year, needing two-thirds of the votes to pass. When the votes were counted, it had passed, with 135,989 in favor (67.52%), and 64,421 against (23.48%).

A recount produced the same result. The equal-rights language was added to the state Constitution the following March.

Still deeply divided For those too young to remember, the early 1970s in America was a turbulent time. The Vietnam War was dividing the nation, the Watergate scandal was about to bring down a president, and the feminist movement was in full roar.

A year after Congress sent the ERA out to the states for ratification, 90 million people around the world watched as 29-year-old Billie Jean King competed against 55-year-old Bobby Riggs in a tennis match dubbed "The Battle of the Sexes." King won.

Fast-forward to 2020, and the country once again is deeply divided across social and political fault lines.

The election of Donald J. Trump over Hillary Clinton in 2016 reinvigorated the women's movement. The day after Trump's inauguration, millions of women marched and protested in cities around the nation.

Nearly 2,000 people attended the Women's March for Civil Rights in Portsmouth that day. In Concord, where thousands attended a rally at the State House, activists dressed the statue of Daniel Webster in a red "equality" shirt and pink "pussy" hat. The crowd sang along to Gloria Gaynor's feminist anthem "I Will Survive" and Katy Perry's "Roar."

Elsewhere, ERA supporters were roused to action. Nevada passed it in 2017, followed by Illinois the next year. Last January, the Virginia legislature ratified the ERA, the 38th state to do so, thus reaching the three-quarters threshold required to amend the Constitution.

That's not the end of the story.

Headed to court In 1972, Congress set a seven-year deadline for ratification. After 100,000 women marched on Washington in 1978, Congress extended that deadline to June 30, 1982. But by 1982, only 35 states had ratified the ERA -- and five had voted to rescind their earlier votes. Legal scholars differ on whether such rescissions count.

After the Virginia vote, the U.S. House passed a resolution removing the ratification deadline for the ERA. Both of New Hampshire's Democratic senators are co-sponsors of a similar bill in the Senate and have called on Senate President Mitch McConnell to bring it to the floor for a vote.

"There should be no expiration date for equality," Sen. Jeanne Shaheen said in an email. "This shouldn't be hard -- all Americans should enjoy the same freedoms and rights, and the Senate should be afforded this opportunity to stand with women.

Sen. Maggie Hassan also supports removing the deadline, "so that we can finally guarantee women and men have equal rights under the law," she said in a statement.

However, shortly before Virginia voted, the U.S. Department of Justice's Office of Legal Counsel issued an opinion that "the ERA Resolution has expired and is no longer pending before the States." The only path forward is to start the ratification process over again, the opinion said.

Court challenges have been filed, and new versions of the ERA have been introduced.

Suffrage and equal rights The League of Women Voters of New Hampshire also is celebrating its centennial this year. The nonpartisan organization grew out of the suffrage movement after the 19th Amendment was ratified, according to Liz Tentarelli of Newbury, its president.

Last Friday, Tentarelli dropped off a box full of yellow sashes reading "Votes for Women" at Kendal for its Wednesday event. She had made the sashes for LWV members to wear at 19th Amendment events across the state this year, but the Hanover event will have to suffice, she said.

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