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The Equal Rights Amendment, Back From The Dead

I was a rookie reporter stationed on the floor of the Montana Senate one afternoon in February 1979, watching as the gallery filled with partisans who came to cheer or bemoan an effort to rescind the state’s ratification of the Equal Rights Amendment.

Five years earlier, Montana was the 32nd state to ratify the proposed amendment to the U.S. Constitution, which declared forthrightly 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.” The total of ratifying states reached 35 by 1977. Only three more would have been needed to trigger a two-year waiting period before the amendment would become the law of the land.

But a backlash against the amendment, spearheaded by social conservative activist Phyllis Schlafly, had gained momentum by 1977. As it became clear that the amendment would not receive the necessary ratifications by March 22, 1979 – the expiration of the original seven-year ratification window Congress had authorized – lawmakers in Washington, D.C. voted to push the deadline back to 1982. On that winter day in Helena, Montana, nobody knew for certain whether the extension would hold up in court.

What we did know was that four of the states that earlier ratified the amendment had already voted to rescind their ratifications. Nobody knew whether these actions by lawmakers in Tennessee, Idaho, Kentucky and Nebraska would be sustained by the courts, either. (South Dakota also eventually rescinded its ratification, but after the original March 1979 deadline.) The Montana Senate itself had come within a single vote of approving rescission in its prior session two years earlier; one lawmaker’s reversal on the resolution’s final reading prevented passage.

As the state’s Senate prepared to take up the question again, the Capitol was jammed with lobbyists, civic leaders and ordinary citizens who buttonholed legislators and pretty much anyone else they could catch. Including me.

I had joined The Associated Press only a few months earlier, after graduating from the University of Montana’s School of Journalism. This was my first legislative session, and I was lucky to have been assigned to the statehouse as such a young reporter.

As the day wore on and the vote approached, I talked to ERA supporters. They said the amendment was essential to solidify the early and hard-fought gains women had made in the workplace, in sports and academics, and in civil rights, notably the right to access abortion that Roe v. Wade had recognized six years earlier. I also talked to opponents. They said the amendment would have far-reaching consequences, including an end to favoritism toward women in alimony and child custody litigation. It would also lead to unisex bathrooms and legal recognition of same-sex marriage, they claimed. Advocates of the ERA pooh-poohed these assertions as alarmist, if not absurd.

Members of both camps accused me of being biased toward their opponents as I talked to them about their positions. I figured that meant I was doing my job.

As the Senate prepared to begin its session, I stood on the floor with one of its oldest members. Robert Watt was a Democrat from my college town of Missoula, and he had played a big role in defending the ERA against rescission two years earlier. He did not have a lot of patience for either side.

“Ah, they’re all crazy,” he told me as he glanced up at the gallery.

The state Senate voted in favor of rescission that day, but the measure failed in the state House of Representatives. Montana’s ratification of the ERA remains on the books today, but just as a historical footnote. No other state ratified the amendment before the extended 1982 deadline. The rescissions of the five states that attempted it were never tested in court. So for all the emotion surrounding that day, the decisions of Montana’s lawmakers 41 years ago were only symbolic.

Or maybe they weren’t.

Certainly the world moved on after 1979, on matters of gender equality as much as anything else. While they remain underrepresented in the top echelons of business and government and undercompensated in at least some realms of athletics (as the U.S. women’s national soccer team has convincingly illustrated), women now dominate in higher education, serve in combat roles in the military alongside men, and arguably have equal opportunity under the law, even if the results are not yet mathematically equal. My own experience in business has taught that personal choice plays a big part in personal results.

The law no longer automatically favors women in alimony and child custody cases. Same-sex marriage is now a constitutional right, and unisex bathrooms are a reality as well. We still manage to argue over who should use what sanitary facilities. We have accomplished all this without the ERA.

Yet somehow, it’s back. Since Donald Trump’s election to the White House and the start of the #MeToo movement, three states – Nevada, Illinois and, most recently, Virginia – have ratified the long-dormant (if not deceased) amendment. Assuming that both the earlier ratification deadlines and the rescission votes of the five states that changed their minds are held to be invalid, the ERA will become part of the Constitution in 2022. This also assumes that advocates of the amendment prevail in a court challenge filed by three states seeking to block it.

Those are all powerfully large assumptions. I don’t think most people believe anything of the sort will actually happen, or we would be hearing a lot more about the ERA than we are.

People would be asking what the ERA would mean for Title IX of the Education Amendments Act of 1972, which mandates equal opportunity for the sexes in athletics. Would it be legal to maintain separate teams for men and women, or will sports need to be co-educational, thus closing doors to athletes (mostly female) whose biology puts them at a physical disadvantage? What would it mean for the emerging questions about competition by transgender athletes?

If the amendment passed, would states and the federal government have any role at all in the regulation of abortion, or would the ERA supersede Roe v. Wade in a manner whose outcome nobody can predict? Would the ERA effectively outlaw efforts to enact “comparable pay” rules for jobs dominated respectively by men and women? Would it all but end consideration of “disparate impact” on rules that are facially neutral when it comes to gender? What, if anything, would it mean for people who identify as nonbinary?

I have no idea. Nobody really has any idea, beyond the sorts of speculation I heard in 1979. I have a pretty good idea, though, that Democrat-controlled legislatures intended the recent enactments as mainly a sort of political symbolism. Lawmakers wanted to identify themselves as pro-women, using a certain framework to define that term. Not coincidentally, this framing also defines opponents of the ERA (many of whom surely hadn’t given it much thought in years) as anti-women, even if they favor the societal changes that have taken place in the past four decades. I don’t think anyone gave much thought to the unintended consequences of the amendment’s ratification, because they don’t actually expect it to happen.

Maybe they’re correct, although few people expected Donald Trump to win the election in 2016, either. Few people back in 1979 anticipated that same-sex marriage would become a reality long before ERA might actually be ratified. Maybe it’s just a cynical form of political messaging. Maybe the ERA ultimately will bring real beneficial change to society, or maybe it will enshrine in the Constitution a value that society has come to accept nearly universally anyway.

Or maybe Robert Watt, that long-ago defender of the ERA, would tell us that the fact we are still discussing the ERA in 2020 shows he was right all along.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, The High Achiever’s Guide To Wealth. His contributions include Chapter 1, “Anyone Can Achieve Wealth,” and Chapter 19, “Assisting Aging Parents.” Larry was also among the authors of the firm’s previous book Looking Ahead: Life, Family, Wealth and Business After 55.

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