Three in four Americans support the Equal Rights Amendment, yet it remains absent from the Constitution. States have long fought over the highly contested piece of law which would legitimize the premise of gender equality in the United States, but recent developments to the ERA’s ratification have once again brought it to the attention of national onlookers.
On Wednesday, July 21, the Santa Barbara Women’s Political Committee hosted a session called “The ERA in 2021: Where Are We Now? & How Do We Cross the Finish Line?” The event featured keynote speaker Wendy Murphy of Equal Means Equal, who was the lead attorney in a recent First Circuit Court of Appeals case that attempted to force U.S. Archivist David Ferriero to publish the Equal Rights Amendment.
The ERA has existed for almost 100 years, and California was among the first states to ratify the amendment in 1972. In 1923, members of the National Woman’s Party wrote the Equal Rights Amendment. The amendment reads, “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 Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
On January 15, 2020, Virginia became the 38th state to ratify the ERA and fulfill the requirement that three-quarters of the states must approve an Amendment to add it to the U.S. Constitution. While this appears hopeful for ERA supporters, deadlines set in the 1970s and legislative loopholes may pose issues for the amendment.
The ERA gained national attention in the 21st century alongside the resurgence of women’s activism with the Women’s March on Washington and the #MeToo movement. There is also a record number of women serving in Congress and on state legislatures which, no doubt, contributes to a renewed focus on gender equity.
The Santa Barbara Women’s Political Committee (SBWPC) is invested in its contemporary application and future success. “The fact that we don’t have constitutionally protected equality affects every aspect of women’s lives. I think that that is something that’s of local state and national significance,” said SBWPC President Luz Reyes-Martin.
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Reyes-Martin hopes that the event will remind participants that the nation has still not passed the ERA. “Something that I’ve noticed when talking to just regular members is they believe that women do have equal rights,” said Reyes Martin. “The idea that this has been such a decades-long battle, and that we have not actually included this in the Constitution when so many other countries have, is really quite shocking to a lot of people. And it should be.”
In January 2020, Murphy unsuccessfully sued the U.S. Archivist in Boston, Massachusetts, after he refused to publish the ERA. “The judge ruled against us and said women don’t have standing,” said Murphy “They don’t have a right to complain or sue, or be heard when the government refuses to publicize the Equal Rights Amendment and that women, as a class of people, have no right to be heard.”
While having the ERA published by the U.S. Archivist in Murphy’s eyes would be an important stepping stone, she believes acquiring strict scrutiny for gender-based discrimination is of the most important benefit to women.
Strict scrutiny refers to a process of judicial review used by courts use to determine the constitutionality of certain laws. According to Murphy, courts have next to zero tolerance for discrimination of any category that gets strict scrutiny.
Women are in the middle scrutiny tier, which permits higher levels of discrimination. In the middle tier, “The court will allow all kinds of very blatant discrimination in laws, programs, policies, because even when it’s clearly discriminatory, the law doesn’t require that be changed,” said Murphy.
Without the ERA or protection via strict scrutiny, Murphy believes women will remain unequal and their voices less powerful. Murphy said, “Once we establish our equality, all those other things that we care about will be more impactful because we’ll actually be equal.”
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