THE EQUAL RIGHTS AMENDMENT SIMPLY STATES:

“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 2020 WE CELEBRATE THE 100TH ANNIVERSARY OF THE 19TH AMENDMENT GUARANTEEING WOMEN’S RIGHT TO VOTE, AND STILL WOMEN ARE NOT INCLUDED IN THE U.S. CONSTITUTION. FLORIDA, LET’S RATIFY THE EQUAL RIGHTS AMENDMENT.

THE EQUAL RIGHTS AMENDMENT SIMPLY STATES:

“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 2020 WE CELEBRATE THE 100TH ANNIVERSARY OF THE 19TH AMENDMENT GUARANTEEING WOMEN’S RIGHT TO VOTE, AND STILL WOMEN ARE NOT INCLUDED IN THE U.S. CONSTITUTION. FLORIDA, LET’S RATIFY THE EQUAL RIGHTS AMENDMENT.

Frequently Asked Questions

FAQs reprinted in full or part with permission from Virginia’s Campaign to Ratify the Equal Rights Amendment. The original document may be found at VAratifyERA.org. The Athena Society is grateful for this generous collaboration.

Unnecessary

“Do we still need the Equal Rights Amendment?”

  • The Equal Rights Amendment is as relevant today as it has ever been. The foundational principle of our nation is that men and women are equal yet, 100 years since women were granted the right to vote with the 19th Amendment, women are still not included in the Constitution.
  • There are laws that protect women, however laws may be rolled back by a simple act of Congress. Court decisions may be retreated from or abandoned.  By contrast, a constitutional amendment is far more enduring.
  • To this question one can ask, “If constitutional inclusion for women is not important, why not abandon constitutional inclusion for everyone?” We don’t abandon it of course because it is important.
  • The late Supreme Court Justice Scalia clearly stated that gender discrimination is not prohibited in the Constitution.
  • Legislation and court decisions without a constitutional backstop do not protect equality. Government agencies and courts must apply and interpret these statutes.  Currently they do so without the guide rails of the Equal Rights Amendment.
  • The Fourteenth and Fifth Amendments require equal protection of the laws, but courts do not hold state and federal governments discriminating on the basis of sex to the same high standard courts apply to government discrimination on the basis of race, national origin, or religion. Sex discrimination currently receives “intermediate scrutiny” in the courts, whereas other forms of discrimination receive “strict scrutiny.” Under intermediate scrutiny it is much easier for the government to discriminate.
  • The American Bar Association formally reaffirmed support for the Equal Rights Amendment in 2016. In a June, 2018 letter submitted for inclusion in the Congressional Record the ABA identified three immediate effects of the addition of the Equal Rights Amendment to the Constitution:
    • gender equality would be established under the law as a fundamental and irrevocable tenet of society;
    • judges would be required to apply the highest standard of scrutiny when deciding cases involving sex discrimination; and
    • existing gender equity laws would be protected, and enforcement of these laws would be reinvigorated.

Unintended Consequences

“What about unintended consequences?”

  • As we see from hundreds of years of judicial decisions, Constitutional rights–even ones as sacred as freedom of speech–are not absolute. Likewise, rights protected by the Equal Rights Amendment will not be absolute.
  • Even with the Equal Rights Amendment, the government may make distinctions on the basis of sex if it has a compelling interest for doing so and the discriminatory action is narrowly tailored to serve that interest.
  • The Equal Rights Amendment does not confer special rights. It simply prohibits the United States or any state from denying or abridging equality of rights under the law on account of sex.
  • Failure to ratify continues the country’s current path of unintended consequences for not ratifying the Equal Rights Amendment. Without this amendment, women continue to be treated as second-class citizens in a nation that purports to value equality, opportunity for all, and advancement based on merit.
  • When the Founding Fathers approved the Bill of Rights, they did not know the potential consequences of constitutionally guaranteeing individual rights. Federalists opposed ratifying the Bill of Rights because they feared procedural uncertainties.  Nonetheless, the Bill of Rights was ratified and became part of our Constitution.

Deadline

“Didn’t the ratification deadline pass?”

  • With the Equal Rights Amendment, Congress imposed a ratification deadline, however, it is in the preamble and not in the amendment itself.  By not submitting the deadline with the amendment to the states for approval, Congress reserved for itself the ability to extend or eliminate the deadline.
  • Both Nevada (March 22, 2017) and Illinois (May 30, 2018) have ratified the Equal Rights Amendment, exercising their state’s right to ratify under Article V of the Constitution.
  • Congress has the power to impose, extend or void a ratification deadline.  In fact, in 1978 it did extend the ratification deadline to 1982.
  • In Coleman v. Miller, the Supreme Court left it to Congress to decide ratification periods.  Beginning with the prohibition amendment, Congress included ratification deadlines in amendments it submitted to the states.

Ratification Rescission

“Are we really at 38 states because some states revoked their ratifications?”

  • Article V of the Constitution authorizes states to ratify amendments but does not give states the power to rescind their ratification.
  • Three amendments to the Constitution were added while ignoring rescissions. All states that ratified, including those who had attempted to rescind a ratification, were included in the count that determined the amendment was, indeed, valid as part of the Constitution:
  • Fourteenth Amendment: Ohio and New Jersey attempted to rescind their ratification, their rescission was ignored, the Fourteenth Amendment was added to the Constitution.
  • Fifteenth Amendment: New York attempted to rescind; Georgia ratified; both were considered among the ratifying states (NY’s rescission was ignored).
  • Nineteenth Amendment: Tennessee attempted to rescind but its rescission was ignored and the Nineteenth Amendment was added to the Constitution
  • Allowing ratification while prohibiting a change of heart makes practical sense too. If states were allowed to rescind as well as ratify, there would be no point in time when we could safely say that three-fourths of the states ratified the amendment, making it part of the Constitution.  The uncertainty would make it impossible to know what is or is not in the Constitution.

Constitutional Convention

“Do we need the Equal Rights Amendment since we are working on a constitutional convention?”

  • A constitutional convention is called when two-thirds of the states (34 states) agree to gather and discuss a specific topic or topics. Any amendment(s) approved by constitutional convention must nonetheless be approved by the legislatures of three-fourths of the states. In other words:
    • It doesn’t matter whether Congress or a constitutional convention proposes an amendment.
    • The proposed amendment, regardless of its source, must be submitted to the legislatures of the states for approval.
    • A constitutional convention is independent of the ratification process and would have no impact except to perhaps slow it down and waste resources.
  • The Equal Rights Amendment has already been submitted to the states for ratification, and 37 of the required 38 states needed for ratification have approved it. Why start over again, especially when none of the states appear to have called for a constitutional convention to address equal rights?
  • Some have argued that ratification of the Equal Rights Amendment will cause a constitutional crisis because states would have to call a constitutional convention to remove the amendment from the Constitution. This argument overlooks the fact that an overwhelming percentage of Americans (94%) favor the Equal Rights Amendment.

Abortion

“Does the Equal Rights Amendment open the door for abortion?”

  • Twenty-four states, including Florida, have adopted Equal Rights Amendments in state constitutions without voiding, limiting, or expanding statutes that govern access to abortion procedures.
  • Constitution of the State of Florida; Article 1 Declaration of Rights; Section 2 Basic Rights: All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property. No person shall be deprived of any right because of race, religion, national origin, or physical disability.
  • Some state courts have ruled that a state’s refusal to fund medically necessary abortions if it funds all other medically necessary procedures violates the Equal Rights Amendment of that state’s constitution. These court decisions, however, specifically state that they do not address the legality or morality of abortion rights.
  • The right to choose to have an abortion, as the Supreme Court explained in Roe v. Wade, is grounded in privacy rights, not equality.

Public Restrooms

“Will we all be using the same public restrooms?”

  • Existing privacy rights will continue to protect appropriate separation of facilities for performing intimate bodily functions.

Contracts

“Will women contractors lose enhanced status for contract bids?”

  • The enhanced status program for female contractors will continue unabated with a ratified federal Equal Rights Amendment, just like those same programs are allowed to give enhanced status to minority-owned businesses even though racial equality is protected under the Fourteenth Amendment.

Draft

“Would the wording ‘equality of rights under the law’ force women to be drafted?”

  • Regardless of ratification of the Equal Rights Amendment, a reinstated draft likely will include everyone, not just men. Conscripting only men into our military force, currently comprised of both male and female volunteers, would be unreasonable and antithetical to defense needs and morale. Women have proven their worth in our modern military and in a time of war, if a draft were necessary, our military would want the very best our country has to offer, which would include women.

Insurance Premiums

“If the Equal Rights Amendment is ratified will women’s insurance rates go up?”

  • Insurance rates are regulated by the states. Since Florida has regulated insurance with a gender equality statement in our state constitution, it can be assumed no change would occur.

Social Security

“Will widows lose social security benefits?”

  • Social security has been gender-inclusive for surviving spouses since a legal challenge in 1975.  This is an outdated concern from the early 1970s.

Amicus Curiae Briefs

“What is an Amicus Curiae Brief?”

  • An amicus curiae (Latin for friend of the court) brief is submitted to a court by someone who is not a party to a lawsuit but wants to provide insight, information, or expertise on the issue at hand, often because that party has interest in the outcome to the case.

The Athena Society is a group of professional women working to promote equality and opportunity for all women. Founded in 1976 to support ratification of the Equal Rights Amendment, the organization remains committed to that purpose today.