Equal Rights Amendment

Just over four years ago, I wrote a post about the Equal Rights Amendment (ERA).  In that post I suggested that a new ERA be proposed.  The original Equal Rights Amendment was designed to guarantee equal rights for women. The ERA was originally written by Alice Paul and Crystal Eastman, and it was introduced in the Congress for the first time in 1923. Though the ERA was introduced in every Congressional session between 1923 and 1970, it almost never reached the floor of either the Senate or the House for a vote—instead, it was usually "bottled up" in committee. In 1972, it passed both houses of Congress and went to the state legislatures for ratification.

The resolution in Congress that proposed the amendment set a ratification deadline of March 22, 1979. Through 1977, the amendment received 35 of the necessary 38 state ratifications. Five states later rescinded their ratifications before the 1979 deadline, though the validity of these rescissions is disputed. In 1978, a joint resolution of Congress extended the ratification deadline to June 30, 1982, but no further states ratified the amendment before the passing of the second deadline. Several feminist organizations, disputing the validity and/or the permanence of the ratification deadline, and also disputing the validity of the five rescissions, continue to work at the federal and state levels for the adoption of the ERA.

The language of the 1972 ERA was fairly simple and read:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

In all likelihood, the Equal Rights Amendment (ERA) is dead and will never be ratified to become the 28th Amendment.  The fight to ratify the ERA is still ongoing and is not quite over.  More than three decades after the deadline set by Congress, advocates are working to advance the amendment's cause at the grass-roots level as some in Congress work to either repeal the amendment's deadline or start over.

Advocates say the Supreme Court's June 30 ruling in Burwell v. Hobby Lobby has energized interest in the ERA. That 5-4 decision said the 2010 Affordable Care Act can't require certain businesses to provide free insurance coverage for birth control if they object on religious grounds.  Pay equity is another factor driving renewed enthusiasm for the Equal Rights Amendment. Women on average are paid 77 cents for every dollar men are paid, according to the ERA Coalition.

Congress is considering amendment resolutions that take two different approaches: the three-state approach and the fresh start approach. The "three-state" approach, sponsored by Sen. Ben Cardin, D-Md., and Rep. Jackie Speier, D-Calif., would repeal the ratification deadline and make the ERA part of the Constitution when three more states ratify it.  The "fresh start" approach — by Menendez and Rep. Carolyn Maloney, D-N.Y. — would start over with a new resolution and no ratification deadline. Menendez and Maloney also are co-sponsors of the three-state approach legislation.

I believe that they should not only push through with the fresh start approach, but I think there should be a Federal Amendment that would extend the ERA to include barring discrimination because of sexual orientation or identity.  I propose that the new language of the amendment read:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex, gender identity, or sexual orientation.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. All laws infringing on the rights of individuals because of sex, sexual identity, or sexual orientation shall become null and void immediately upon passage of this amendment.

I think it should also be proposed that a possible Section 4 might be added that would define sex, gender identity, and sexual orientation.

Section 4.  Definitions of sex, gender identity, or sexual orientation.

Section 4.1. Sex shall be defined as the biological and physiological characteristics that define men and women.

Section 4.2. Gender shall refers to the socially constructed roles, behaviors, activities, and attributes that a given society considers appropriate for men and women. Gender identity shall be defined as the gender, male, female, with which a person identifies exclusive of their biological secondary sexual characteristics.  The gender identities one may identify as include male, female, both, somewhere in between ("third gender"), or neither and may or may not correspond to the sex assigned to them at birth.

Section 4.3. Sexual orientation describes a pattern of emotional, romantic, or sexual attraction to men, women, both genders, neither gender, or another gender. Sexual orientation is enduring and also refers to a person's sense of personal and social identity based on those attractions, behaviors expressing them, and membership in a community of others who share them.

Though some might believe this fourth section is too strict or defined.  However, whenever the debate over gay marriage is brought up, the ideas of polygamy, bigamy, and bestiality are always raised in the debate by crackpots.  I think these definitions would clear up any debate about the meaning of the terms.  It would also not allow for a great deal of interpretation of the meaning of the amendment by the Supreme Court or the state ratifying legislatures.

If this amendment were to be proposed and ratified, the debates over GLBT rights would effectively be ended.  Gay marriage would be forced to be recognized nationwide and we would no longer be holding our breaths as court cases continue in nineteen states.  Furthermore, school bullying would be against federal laws.  Teachers could not be fired because of their sexual orientation.  We would have definitive protection once and for all.  I realize this is a dream, but I think it is a great idea.  What do you think?  Should we all push to have this amendment proposed, passed by Congress, and ratified by the states?

I am going to be discussing more about this idea this week.  I want to look at whether it is possible for a new ERA to pass through Congress and what would happen if it reached the states.  Though I believe that the federal courts are moving in the right direction, court decisions can be overturned.  The Supreme Court has reversed their decisions before, and let's face it, the Supreme Court is as political as any branch of government and with that the balance of the Court could move away from LGBT rights.  I think a constitutional amendment is the true way that LGBT Americans to be equal once and for all.