When Congress approved the Equal Rights Amendment in 1972, supporters said it would bring about huge changes in attitudes and practices, and they were right. Women now mostly work outside the home, they run giant corporations, they serve in the military in combat zones, they occupy high offices in all three branches of government, and one may be the next president. The amazing thing is that the amendment precipitated all these advances without ever being ratified.
Today, though, proponents are mounting a new campaign to change the Constitution. The measure, now called the Women's Equality Amendment, consists of a simple mandate: "Equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex." It's the same as the original ERA, which died in 1982 after falling three states short of the 38 states needed.
In 1972, equal rights for women was a new and controversial concept. By now, it has permeated deep into the national consciousness. The idea that the government should disadvantage people merely because of their gender has few adherents and even fewer public advocates. American society has gone a long way toward putting the sexes on a legally equal footing.
One supporter of the revived amendment is Democratic State Rep. Lindsley Smith of Arkansas, who told The Washington Post, "The question I get most frequently is, 'Lindsley, I thought this already was in the Constitution.' " What she overlooks is that, for all intents and purposes, it is.
In the last three decades, the Supreme Court has handed down a string of decisions overturning laws that treat people differently on the basis of sex. It required the all-male Virginia Military Institute to admit females, ordered the Air Force to provide the same dependent benefits to spouses of women as it provides to spouses of men, and struck down an Oklahoma law setting a different drinking age for men and women.
These decisions (and others) grew out of the same principle, that everyone is entitled to equal treatment under the 14th Amendment. The court said in 1996 -- in an opinion written by Ruth Bader Ginsburg -- "Parties who seek to defend gender-based government action must demonstrate an exceedingly persuasive justification for that action. Neither federal nor state government acts compatibly with equal protection when a law or official policy denies to women, simply because they are women, full citizenship stature."
As Northwestern University law professor Andrew Koppelman puts it, Phyllis Schlafly and other opponents won the battle but lost the war: "The ERA was defeated, but its rule against sex discrimination was incorporated into constitutional law anyway, by judicial interpretation of the 14th Amendment."
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