There’s no denying that the American public policy environment is measurably more progressive in the aftermath of last November’s election. In Washington, congressional leaders of both parties are pushing back against President Trump’s attempt to declare a national emergency, and the U.S. House is seriously discussing proposals for a “Green New Deal” and a massive overhaul of federal ethics and voting rights laws.
Meanwhile, here in North Carolina, despite conservative majorities in both houses of the General Assembly, progressive proposals are percolating into public view at a much faster pace than in recent years. In the early days of the 2019 session, lawmakers have introduced legislation to close the state’s Medicaid gap, curb gun violence, restore master’s degree pay for teachers, raise the minimum wage, reinstate the state Earned Income Tax Credit, expand paid family and medical leave and legalize possession of small amounts of marijuana.
And while no one expects an easy path onto the statute books for any of these bills right away, it is possible to envision such a path in the foreseeable future – especially for the state-level proposals, given that each of them has been around for a good while and has already won approval in numerous jurisdictions.
Yet another proposal in this category is the Equal Rights Amendment. As many people once knew well, the ERA is a strikingly simple and logical proposal that reads as follows:
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.
There was a time in this country when the ERA was something that seemed assured of becoming enshrined in our Constitution as the 27th Amendment. After winning final approval by the U.S. Senate in 1972 by a vote of 84-8 (the House had passed it a year earlier), the ERA was quickly ratified by 30 of the necessary 38 states within a year. Unfortunately, thanks in part to an arbitrary seven-year time limit on ratification attached by Congress to the original legislation (later extended by three years) and an anti-feminist backlash spearheaded by the religious right, the measure came up just short.
By the 1982 deadline, 35 states had ratified the amendment – not including, of course, North Carolina. Though many experts have questioned the constitutional validity of the artificial time limit, little concrete action has taken place on the amendment in the ensuing decades – little, that is, until the onset of the Trump presidency.
With the rise of the misogynist-in-chief and the #MeToo movement, the amendment has enjoyed a spirited and long overdue revival and two new states – Illinois and Nevada – have added their names to the list of states voting for ratification. This means that only one more state is needed to reach the 38-state threshold. The dirty baker’s dozen of non-ratifiers at present: Alabama, Arizona, Arkansas, Florida, Georgia, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Utah, and Virginia.
Now, it must be conceded that ratification in North Carolina would not necessarily settle the matter. In addition to the dispute over the artificial time limit (bills have already been introduced in Congress to repeal it), there have been a few states among the 37 who have subsequently attempted to rescind their previous votes to ratify, so it’s clear that the details of ratification will continue to be debated for some time.
One thing that ought not to be subject to debate at this point, however, is the merit of the amendment. As the good people at the Equal Rights Amendment North Carolina Alliance explain in a handy Q&A, the ERA would bring about a just and enormously important practical change in our constitutional jurisprudence:
Today, when a court considers a challenge to a law that discriminates based on sex, it will uphold the law as long as it bears a ‘substantial relationship’ to an ‘important government purpose.’ This is called intermediate scrutiny. The ERA would require strict scrutiny – the same test that applies to discrimination based on race and national origin. Under that test, the law must be ‘narrowly tailored’ to achieve a ‘compelling government interest,‘ and it must be the “least restrictive means’ of doing so. This means that the court would strike down the law if the goal behind it is not appropriate and compelling, or if there is a different way to accomplish it.”
The bottom line: The ERA was first proposed in 1923. Today, 96 years later, the time for guaranteeing that all women in America enjoy truly equal rights under the law is preposterously overdue. If there’s any justice in the world, North Carolina will help push the ERA over the finish line before it turns 100.
(Advocates supporting the ERA will gather at the North Carolina General Assembly this afternoon, March 5, for a press conference and lobby day. Click here for more information.)