The Maryland House of Delegates is about to engage in what Shakespeare would describe as “sound and fury signifying nothing” by voting on a resolution claiming to ratify the federal Equal Rights Amendment. This is an absurd exercise for two reasons. First, the General Assembly already passed a ratification resolution more than 50 years ago, when the ERA actually existed and was pending before the states. Second, doing so again today is a purely fictional exercise because the ERA has not existed for more than four decades. It’s just virtue signaling.
The Maryland Senate recently passed The ERA Joint Resolution SJ1, which is now sitting in the House waiting to be passed. A vote is expected in the next week or two.
When the ERA was first introduced in 1923, prominent women’s groups led opposition to it for decades, arguing that real differences between men and women meant that “distinctions based on sex are not necessarily discriminations.” They preferred a legislative rather than a constitutional approach, calling for “specific bills for specific ills.”
After decades of debate and dozens of congressional hearings, Congress passed a resolution proposing the ERA on March 22, 1972. It read: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” As a constitutional amendment, it applied only to government sex discrimination, but that was about the only thing everyone agreed on. Supporters ignored any differences between men and women, arguing that every legal distinction between the sexes amounted to unlawful discrimination.
The ERA was sent to the states with a seven-year deadline to reach the necessary three-fourths threshold for ratification. Supporters added the deadline to increase congressional support and predicted that the states would fully ratify the ERA in less than two years. They were wrong. Even after a controversial 39-month extension of the original deadline, the ERA failed in June 1982 because only 35 of the necessary 38 states had ratified it, and five of them had already withdrawn their support.
The ERA failed for two reasons. First, its original purposes had been achieved without it. Long before Congress proposed it, the states and federal government were rapidly eliminating discriminatory laws and regulations.
That trend only picked up speed in the decades ahead. In addition, the courts began interpreting existing constitutional provisions, such as the 14th Amendment’s equal protection clause, to require equality between men and women. The late Justice Ruth Bader Ginsburg told students at the University of Virginia in 1997 that “there is no practical difference between what has evolved and the ERA.”
The second reason for the ERA’s failure was that, disconnected from its original purposes, its indeterminate language made it a tempting target for political agendas of all types. Even its strongest supporters had never agreed on what the ERA’s language meant and how it could be applied. Different activist groups tried to connect it to all sorts of controversial and divisive objectives. In publications and the latest congressional hearings on the ERA, supporters claim it will address everything from violence against women, economic marginalization, undefined “injustices that women suffer every day,” the so-called gender pay gap, maternal mortality, and equality for “marginalized genders,” who by the way may not be women.
The ERA could not address any of those things as a constitutional amendment because it applies only to government action. Equal pay for equal work, for example, has been the law of the land since Congress passed the Equal Pay Act in 1963.
The ERA failed because its potential benefits had been achieved without it while the costs of adding it to the Constitution continued to increase. For those reasons, the ERA died when its extended deadline passed in June 1982 with fewer than the required 38 states. After that, it no longer existed and was no longer pending before the states. States cannot ratify a constitutional amendment that does not exist, and pretending otherwise is not a serious legislative exercise.
The Democrat Women’s Caucus in Annapolis is championing Joint Resolutions Affirming Federal Equal Rights. The stated purpose is to make the ERA the 28th Amendment to the U.S. Constitution, which is clearly impossible. Unfortunately, the oldest women’s caucus in the nation has become futile and partisan, as most plainly illustrated by its flag-waving of SJ1. We agree with Gloria Steinem, who said on Oprah in 1986 that the ERA is dead.
Del. April Rose is a Republican representing District 5 in Carroll and Frederick counties. Del. April Miller is a Republican representing District 4 in Frederick County. Del. Teresa Reilly is a Republican representing District 35A in Harford and Cecil counties. Also contributing to this op-ed are Republican Dels. Kathy Szeliga (7A, Baltimore County) and Lauren Arikan (7B, Harford County).
