Jane Mansbridge, author of the award-winning Why We Lost the ERA, Carol Jenkins, president and CEO of the ERA Coalition and Fund for Women’s Equality, and Inez Feltscher Stepman of the Independent Women’s Forum joined to explore the Equal Rights Amendment and discuss their differing viewpoints on it with National Constitution Center President and CEO Jeffrey Rosen. They shared insights from their research and advocacy for and against the ERA, debated whether it has met the requirements under Article V to be adopted into the Constitution, discussed its recent ratification in Virginia and Nevada and ongoing litigation surrounding it, as well as what’s next and what would change if, someday, the ERA were adopted.
This program is made possible through the generous support of the McNulty Foundation in partnership with the Anne Welsh McNulty Institute for Women's Leadership at Villanova University and as part of the Center’s yearlong initiative, Women and the Constitution, celebrating the 100th anniversary of the 19th Amendment.
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PARTICIPANTS
Carol Jenkins is the president and CEO of the ERA Coalition and the Fund for Women's Equality, and the founding president of The Women’s Media Center. She is a long-time women’s rights activist, author, and Emmy Award-winning former television journalist. She also hosts the New York Emmy-nominated interview show, “Black America,” on CUNY TV.
Jane Mansbridge is the Charles F. Adams Emeritus Professor of Political Leadership and Democratic Values at Harvard University. She is the author of the award-winning Why We Lost the ERA, a study of anti-deliberative dynamics in social movements based on organizing for an Equal Rights Amendment to the U.S. Constitution. Mansbridge has also written about the ERA for scholarly outlets such as Public Opinion Quarterly and The Journal of Politics, and popular outlets like The American Prospect.
Inez Feltscher Stepman is a senior policy analyst at the Independent Women's Forum. She is also a Claremont Institute Lincoln Fellow and a senior contributor to The Federalist. Her work has been published in outlets such as USA Today, New York Post, The Hill, and Newsweek, and she has made media appearances on Fox News, PBS, C-SPAN, and NPR.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
This episode was engineered by the David Stotz and Greg Scheckler and produced by Jackie McDermott, Tanaya Tauber, John Guerra, and Lana Ulrich.
ADDITIONAL RESOURCES
- Carol Jenkins, NBC News: Think, “Remember the Equal Rights Amendment? It's time to amend history books and the constitution”
- Jane Mansbridge, Why We Lost the ERA
- Jane Mansbridge, The American Prospect, “The ERA and the Dynamic of Deafness”
- Inez Feltscher Stepman, The Hill, “Equal Rights Amendment will replace equality with enforced sameness"
- Linda Coberly and Inez Feltscher Stepman, We the People podcast, “Can the Equal Rights Amendment be Revived?”
- Julie Suk and Sai Prakash, We the People podcast, "Will the Equal Rights Amendment be Adopted?"
- Brief Amici Curiae of the ERA Coalition
- "Ratification of the Equal Rights Amendment," Department of Justice Memo
- Scott Bomboy, Constitution Daily, "How a college term paper led to a constitution amendment"
- 27th Amendment: Congressional Compensation, Interactive Constitution
- 19th Amendment Drafting Table, Interactive Constitution
- Audio of debates surrounding the 19th Amendment, The 19th Amendment: How Women Won the Vote, National Constitution Center exhibit
- Attorney Gen. v. Mass. Interscholastic Athletic Association (MIAA) (1979)
- Mrs. America, FX on Hulu
- United States v. Virginia (1996)
- Attorney Gen. v. Mass. Interscholastic Athletic Association (MIAA) (1979)
- Bostock v. Clayton County, Georgia (2020)
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jackie McDermott: [00:00:00] Welcome to Live at the National Constitution Center. I'm Jackie McDermott, the show's producer. 2020 saw new developments in the fight for the equal rights amendment, which would add to the Constitution the words, "equality rights under the law shall not be denied or abridged by the United States or by any state on account of sex." This program explores those developments and what's next as well as the arguments for and against the ERA. Here's Jeff, to get the conversation started.
Jeffrey Rosen: [00:00:30] Hi everyone. And welcome to tonight's program of America's Town Hall. I am Jeffrey Rosen, the president and CEO of the national constitution center. And we begin our programs by reciting our congressional charter to inspire ourselves for the learning ahead.
So here we go and recite along at home with me. The National Constitution Center is the only institution in America chartered by Congress to increase awareness and understanding of the US constitution among the American people on a nonpartisan basis. It is now a great pleasure to welcome you to our program tonight about whether or not America should ratify the ERA. And I want to begin by thanking the generous support of the McNulty foundation in partnership with the Anne Welsh McNulty Institute for women's leadership at Villanova University. This program is part of the National Constitutional Center's year long initiative, women in the constitution, celebrating the hundredth anniversary of the 19th amendment.
And we're so grateful to the McNulty foundation and the McNulty Institute for making it possible. We've got an amazing crowd tonight. I know how engaged you are. So please put your question in the Q and A box. I'll be looking at them as we talk and we'll introduce them to our panelists at the right time. And now it is an honor to introduce our dream team of panelists.
Jane Mansbridge is Charles F. Adams emeritus, professor of political leadership and democratic values at Harvard University. She is the author of the award-winning, "Why We Lost the ERA," which is the definitive book on its subject. I was sharing with professor Mansbridge, the fact that I had a copy of that book in law school and it inspired and I remember it to this day, so I'm very grateful to meet her in person. She was president of the American political science association and is also the author of 'beyond adversary: democracy."
Carol Jenkins is president and CEO of the ERA coalition and the fund for women's equality. She hosts the Emmy nominated interview show, Black America. She is founding president of the women's media center and a pioneering television reporte, having worked at WNBC TV in New York for many years. And Inez Feltscher Stepman is senior policy analyst at the independent women's forum. She previously was director of education and workforce development at the American legislative exchange council.
She is also senior contributor to the Federalist and Thursday editor of Bright, a woman's daily newsletter. She's also been a great guest on our, We the People podcast. Thank you so much for joining us. Professor Mansbridge, Carol Jenkins and Inez Feltscher Stepman.
Inez Feltscher Stepman: [00:03:28] Thank you for having us.
Carol Jenkins: [00:03:29] Thank you.
Rosen: [00:03:30] I'm going to jump right in with Professor Mansbridge with the obvious question in as distilled a fashion as possible, I'm going to ask you why the ERA was lost, the first time around. And I remember in particular from law school, your discussion of how the Supreme Court's decision to intervene in the Frontiero case and to grant heightened scrutiny to gender discrimination, took the cells out of the political momentum for the ratification of the ERA. That's one of many crucial points you make in the book. Tell our audience why we lost the ERA.
Jane Mansbridge: [00:04:06] Well, I think there were three big reasons. One is just the one that you said. The Supreme Court, with a good deal of prodding from feminist lawyers around the country, decided to use the 14th amendment, equal protection, to accomplish many of the things we've done. And that was the Frontiero decision. And there were a set of other decisions, but primarily that one. So that, when we were asked, what would the ERA do? And I'm sure you're going to ask that question on this program, later. We had fewer precise things we could say, okay, it'll get rid of this horrible thing, this horrible thing, this horrible thing, because most of those deep injustice had been already corrected using the 14th amendment by the Supreme Court.
So that was one reason that the wind started going out of the sails. Another one was what I later called or Laennec one year and I took it up. I wish I'd had the phrase when I wrote the book. But it was what I, what she called the dynamic of deafness. When you get involved in a social movement, you give up a lot. If you, if you're really working on the social movement people don't get paid for working on social movements. And so you begin to listen primarily to the people you're working with and you stop listening to the opposition. You begin not to hear, to become a bit deaf.
So, this, the first wave was the amendment really came out of the coasts, came out of Washington, DC. The States of course were incredibly important, but a lot of the legal work and so forth was done by lawyers in Washington. And so for example, when there were only about 22% of people in the country who wanted women to be drafted on the same basis as men. Now it's more than a majority, but at that point it was only a very small number. And yet our lawyers were saying that the ERA would send women into combat would draft women and send them to combat on the same basis as men. That wasn't actually true. Then Allstate and a number of other legal scholars pointed out that the Supreme Court had something called the doctrine--what commentators called the doctrine of military necessity. Soldiers just don't have the same rights of free speech that civilians do. So the Supreme Court allows the military quite a bit of discretion when it comes to what the military considers military necessity. And it was just not predictable at all of the Supreme Court would have used the ERA to draft women when the military didn't want to do that.
So, but we didn't say that. Because we didn't want that we wanted women to be drafted, you know, even though only for 22 percent of the American public was for us. So there was a certain amount of not listening, I think, and I wrote the book in a way as a self-help manual to future social moments because the feminist social movement is the most listening of almost any social movement.
And yet we didn't. We didn't listen very much in this case. So that was in a sense, the goal of the book, this dynamic of deafness. And then a third reason really was Phyllis Schlafly. You know this whole thing it's sailed through and Phyllis Schlafly jumped in and raised all sorts of doubts, many of them unsubstantiated, some of them with some substance, but I don't think now have some substance, we'll see later in the program, we'll get into some discussion, I think, of that. But at any rate, she raised doubts and when you have got a system like the US system with so many veto points and you've got something like a constitutional amendment, which is designed not to get through.
Two thirds.. it needs two thirds of both houses of Congress, three quarters of the States, it's designed to be easily blocked. That's that's how we set it up. Well, then, if you designed something to be easily blocked, it's relatively easy to block it. So that was built into the very structure. You raised some doubt, that's it. So I would say those were the three reasons that. Frontiero and the Supreme Court had already made a lot of decisions that were good ones. And the dynamic of deafness, and Phyllis Schlafly.
Rosen: [00:08:29] Thank you for that wonderful, clear summary of your book. And all three of those reasons will inform the rest of our discussion as we think about the future of the ERA. The dynamic of deafness for me recalled Justice Ginsburg's famous marital advice, given by her mother-in-law, sometimes it helps to be a little deaf. By which she meant, if there's an unkind word, she said, tune it out. You know, good advice on the Supreme Court.
Now Justice Ginsburg famously argued that it would be best to start from the beginning. That there was enough doubt about whether when Virginia became the 38th state to ratify that the process should start again. On the other hand, others argue, and Carol Jenkins will make this case, that the ratification by Virginia is sufficient to make the ERA part of the Constitution. Carol Jenkins, let's begin with that procedural question. We're in a complicated place where the Department of Justice under William Barr has issued an opinion, arguing that Virginia's ratification is not sufficient to compel recognition of the amendment because there was a deadline which the Justice Department held cannot be extended beyond the three-year extension that Congress granted up to 1982, and also that some States have rescinded their ratification and therefore they've instructed the archivist not to certify the ERA. On the other hand, several states have filed suit to compel the archivist to certify arguing that ERA with Virginia's ratification is a valid part of the Constitution. So, help us understand why you believe that ERA should be certified.
Jenkins: [00:10:08] Right. And you see how complicated it is. You know, when I, when there are people who say to us, just give me the short story of the era, you know, explain why it is and what it will do and how it got here. Well, you know, as I'm so thrilled to be with you, Jeff, with Jane and Inez, whose work I respect.
Of course, Jane's book is the Bible for where we went wrong in the seventies and eighties. Well, Article V of the Constitution sets out two requirements for amending the Constitution, which our Constitution is amended 27 times. You know, a really great start in the 1700s, a beginning, but clearly work needed to be done, to include people and fix things that were not even thought of.
Then for instance, the fact that I'm sitting here, a Black woman, a descendant of slaves, you know it was not thought of, you know, when that Constitution was written. So, you know, we do need some stipulation that says that women exist. They, you know, deserve equal footing in the country. And the only way we can get that. And as we, in the midst of systemic racism, sexism charges of whatever, you know, you cannot get any more systemic than the Constitution. That is the playbook. That's what sets, you know, the way we live, the rights we have, the responsibilities we have. And so, without question, we believe, of the ERA coalition, that we need to fix the Constitution to give women the right of the rights that men have, but more than that now, because of the recent Supreme Court decision so that there will be no discrimination based on sex. So the two requirements are: passage by Congress. And that happened in 1972, and then ratification by 38 States. And we do admit that that happened a little bit late.
That happened this year. You know, the history is that , you know, after, you know, the seventies and eighties, and we only got up to 35 States, which I think was a miracle, you know, considering if we had to do that again, you know, today. We got to 35 States and then for years and years, until 2017, there were no states ratified.
We used to talk about the three state strategy. We needed three States in order to complete that ERA that was that was in the works. And we know that in 2017, Nevada, thanks to a Black state legislator named Pat Spearman, got Nevada to ratify that ERA. And we were sitting in our office in New York city and in DC. And we were like, what just happened in Nevada? And does that really count? And our lawyers who at the time, and no one really knew what was going on then, because it just came right out of the blue. They said, yes. And then of course, the next year, Illinois ratified. And then of course it was, we only needed that one more state and Virginia took a couple of years to do it, but when it went blue last year it was able to in January of 2020 ratify that ERA, I know that Justice Ginsburg would love us to start over again, but that ERA now almost a hundred years in the works, we believe it was ratified on January 27th.
And that's the date that we're working with. The thing that we stumble over is the timeline. What used to be called the deadline, but we like to think of it as a, more of a suggestion, a time limit of seven and then 10 years, was in the what used to be called the preamble, and now it's the joint resolution. It was not something that the 38 states voted on. So that's where we believe that we are in the clear to say that we have met the requirements of the Constitution, Article V, those two things that are required, of course, that time limit and this Department of Justice and this legal memorandum have stopped us and have put us into the courts.
The attorneys general of the last three states that ratified have of course started a suit to compel the archivist to publish the the equal rights amendment. And we always say we can have a great deal of sympathy for the archivist. He's the head librarian, you know, he probably thought he had another life in store, a career, you know, but he's the one who's responsible for giving equal rights to the millions of women and others in this country.
He has said that he will not publish it until he is either forced to by a court or there is another memorandum. And as we all know, there's been a very, very long election that has taken place-- still going on, I do believe-- but we believe that we have a new president elect who has expressed his support of the ERA. Vice president elect Harris has also expressed her support of the equal rights amendment. So we do think that there will be a new Department of Justice in 2021. And we believe that we will have an equal rights amendment in 2021. I'm sure that Inez will keep us very busy once that happens, but we are expecting to be successful. We also, the ERA Coalition, you know, there are 115 members of our organizations now.
And we work in the Senate and the House miraculously, too. In February, the House of Representatives dissolved that time limit. We're still working with senators Carton and Murkowski, bi-partisan, to do the same thing in the Senate. And the ERA is in the basement of the Senate house. As the hundreds of other bills are that have been passed by the House and just have not moved in the Senate.
So we are preparing there to dissolve the time limit. We'll have to start all over again in the House in 2021, and then do the same thing in the Senate to remove that obstacle that keeps keeps getting in our way, but the ERA is more alive than it ever has been. We are dramatically close and expect to, to be victorious so that, you know, all of the people who were left out in the beginning, not even thought of, you know, we'll say that we, you know, we too belong in the Constitution, are in the Constitution, and therefore our rights, whatever they may be, and the one thing that I love about that, there is no discrimination and that the ERA also gives the right to write laws that will make the lives of the people in America better. And we can just go through everything--
I mean, I want to feed hungry children. I want maternal health that's better. I want to go, I want to see the fabulous work that we can do to create the laws that will stop hunger, poverty, and that most of the poor of this country are women. So I think that it will give us a much better future.
Rosen: [00:17:32] Inez, we just heard a very clear explanation of an argument that the ERA Coalition also makes in an Amicus brief filed in Commonwealth of Virginia vs. David Ferriero, the archivist, about why the deadline that Congress initially placed in the ERA should not be considered binding. And the core of the argument as we just heard and has also made in the brief is that the deadline appears in the preface, but not in the text of the ERA itself.
The brief actually says Congress didn't incorporate the time limit into the language of the ERA itself, but inserted the time limit only in the resolving clause. At a minimum, this means Congress can change the time limit at its discretion in a subsequent joint resolution, as it did by simple majority in 1978. So, the argument is that at the very least, if Congress today with president-elect Biden and vice-president elect Harris' support were to extend the deadline, then that would validly extend the deadline and the archivist should ratify. The Justice Department strongly disagrees with the office of legal counsel has written a long memo about why the deadline should be binding. Tell us why you agree with the Justice Department, think the deadline is binding, and believe that the ERA cannot be considered validly part of the Constitution.
Stepman: [00:18:45] That's right. And by the way that the Justice Department memo also takes issue with a previous memo or at least parts of a previous memo from 1977. So they actually dispute the legitimacy of the extension of the deadline the first time to 1982, as well. I just wanted to make that clear. But, I think that fundamentally, if we take a look at what proponents like Carol and others have argued, the procedure laying aside the merits of the ERA for a moment, the procedure, they've set up a situation in which at least the spirit of Article V seems to me to be violated.
Presumably those barriers that Jane laid out and all of those veto points, right, are there because it should be difficult to play something into the highest law of the land. And we want to make sure that there is the broadest possible base of popular support for doing so, which is why that the requirements for two-thirds of Congress, why three quarters of the states, right.
It was just supposed to ensure a certain amount of popularity of this idea of changing the highest law of the land. Now, if we go with all of the various legal arguments that the proponents of the ERA have advanced, one, we have a basically endless timeline in terms of the time period over which an amendment can be ratified.
Now we do have the 27th amendment and that was ratified, you know, over 200 years. But that is very much the outlier in terms of amendments. And, furthermore, does beg the question, right? If you have a completely different electorate, that the meaning of words changes over time, reasons change over time. As Jane has chronicled, a lot of the initial debates over what the ERA might and might not have done, a lot of the things that proponents wanted the ERA to do have been done already. All of these things change the conversation. And I think there is something fundamentally wrong with counting those past ratifications alongside the more modern ones in Nevada and Illinois and in Virginia, especially when 62% of the electorate was either not born or not old enough to vote right now, when the ERA was debated and discussed in the public eye, back in the seventies. So that's one.
And two, it seems to me to be a little bit unfair for proponents to want to count all of the the ratifications in their favor, as Ruth Bader Ginsburg says, but not to count that then the rescissions or the states have decided to rescind their support for the ERA or the one state that put a sunset clause in its ratification. It seems to me that even if we grant the proposition that amendments can be modified over an indeterminate amount of time, that states should then have the freedom to sign on or off. Especially if, again, the spirit through which we're viewing this is the idea that we need to prove, not through polling, but through actual voting of representatives, this kind of massive, popular support that is needed to amend the Constitution.
And then finally, I alluded a little bit in my first point, but meaning of words, especially legally right, is extremely important and it changes over time. And so for example, discrimination on the basis of sex, we have a very different debate or definition of sex today than we did in the 1970s. So those states that ratified this amendment in the 1970s context, might've thought they were ratifying something very different then at least, what some proponents argue this amendment, the word sex in this amendment actually means in 2020. So for those three reasons, I think it's important that the procedure, these procedural elements--these will get fought out in the courts, right? There's still this very big question, not so much that the courts endorse these long ratification periods. In fact, they've said that they ought to be reasonably contemporaneous. But, whether that's a question for the court to decide, or whether that's a political question for Congress to decide, and I think that's where a lot of the crux of the debate will be.
With regard to the, the deadlines that were placed in the congressional. And there's a great podcast that you hosted with my former professor Sai Prakash, at UVA Law, so, there is an additional question then about whether these deadlines-- the Supreme Court has upheld Congress' right to include them, but it has not ruled on the question as to whether Congress can then modify them later. So that's an additional, so there are all kinds of legal issues, procedural legal issues surrounding the ERA. And that's before we get to the substance of the merits of the amendment.
Rosen: [00:23:07] Thank you very much for all that. Thank you for calling out the We the People podcast and thanks to all for putting the procedural arguments on the table so well. I'm gonna ask Lana Ulrich, our great head of content, to post in the chatbox the brief that the ERA Coalition and advocates filed in the Commonwealth of Virginia vs Ferriaro case. And on the other side, the DOJ opinion by the office of legal counsel, which makes the arguments on the other side and you'll have a good sense of what both of them are. All right. Now we're going to turn to the substantive question. We've already, we've talked about the procedure is the ERA now currently validly part of the Constitution? Now we'll say should it be? Should the ERA be ratified or does it deserve support?
And I'm going to begin with a question from the Q and A box posed by a Colin Teebo, who's a star student in our high school classes on the Constitution and always puts his finger on a central issue. And I'm going to offer it to Professor Mansbridge. Colin asks, with the Supreme Court having recognized sex as heightened scrutiny characteristic and its rulings under the 14th amendment, is the ERA still necessary? Professor Mansbridge, what's your response to Colin Teebo?
Mansbridge: [00:24:23] I'll make a quick response to that. And then I'd like to respond just to a little bit on the issue of the current situation. I don't think there are any particular laws that the ERA would immediately change.
I think the parallel is to the moment of the framers, when they put the bill of rights in the Constitution. They didn't put free speech in because they thought, Oh gosh, that's going to change one, two, three, four, five, six, seven, eight, nine laws. They thought, this is the right kind of principle to put in the Constitution.
And in fact, I don't think the Supreme Court used that clause to change any laws, anywhere near when it was put in the Constitution, but it was there. And we, as Americans, are very proud that we have the First Amendment in our Constitution. We're very proud of free speech and we should be proud of an amendment that gives everybody equal rights, even if it wouldn't change a law right now.
So, I think that that's why I think it should be in the Constitution, because when I say when I end my pledge of allegiance with liberty and justice, to all, I want that justice to include equal rights. So, that's my answer to that question, but I'd like us to go back if you will. I don't think it's quite as complicated as it sounded when we were going through this issue of bringing up the ERA again. I think that Carol mentioned that she and a bunch of people were sort of sitting around in Washington and New York and suddenly this stuff kind of came out of the blue. Why did it come out of the blue? Because this kid, Gregory Watson, if I can just take a minute to tell this stor. He was an undergraduate at the University of Texas.
He had to write a paper for his American government course. He was going to write a paper actually on the ERA because his mom was in now, but he went to the public library, pulled a book out about amendments that hadn't been passed. And there was some what we now call the Madison amendment, an amendment that said that if you make a, if you raise Congress's salary, it won't go into effect until after the next election. It was a way of letting the people say, we don't want to let you raise your salary. He felt, he said later that he felt that bolt of lightning hit him and he went after it and almost single-handedly got one state after another to ratify this amendment, which had been in the original package of the bill of rights, and then just kind of not gotten ratified. He got one state after another to ratify, ratify, ratify, ratify, ratify it. And then it's in the Constitution. 27th amendment. No woman had any, no feminist activist had anything to do with that.
And in fact, it wasn't until a couple of years later, that three women at the University of Richmond in Virginia, supported by their women's law association, looked at it and said, you know what? If the Madison amendment can be put in the Constitution 203 years later, so can the ERA. So, this wasn't just a vague proposition. This was a historical fact. So that's what happened and that's why the ERA is now live again. So I just wanted to put that little piece of history in to kind of, to get that out to your audience. It's not that complicated.
Rosen: [00:27:44] Thank you very much for the reminder and for calling out the Madison amendment and telling that wonderful story, which is indeed a reminder that even, not even, but especially a student like Colin Teebo or like that great college student can change the Constitution by doing research and by leading to ratification. Carol Jenkins, I'd like you to put on the table as vigorously as possible, your arguments for why it is necessary to ratify the ERA. Supporters say that the ERA would among other things, and I'm quoting from the New York Times summary of some of the arguments, sweep away discrimination in the workplace, help women to achieve pay equality, allow men to get paid paternity leave, require states to intervene in cases of domestic violence and sexual harassment and guard against discrimination based on pregnancy and motherhood, as well as bolstering protections for gay and transgender people. Do you agree with some of those effects? Do you think those are necessary and are there any others that you think are necessary to ratify the ERA?
Jenkins: [00:28:45] Well, I don't think, does it have to do all of those things in order to be valid? That's what we say. We never argue that, you know, the world is going to be dramatically changed the day that we get the equal rights amendment. I think it's a sense of, you know, the first thing that will happen is that that children who happen to be of a different color or a different gender expression or a different, I mean--different--you know, will believe that they belong in this country and that they are represented by the Constitution, which stipulates, you know, how we run our lives. At this point it doesn't exist. And so, you know, for those who say, Oh, it's only symbolic. And I say, okay, we'll take it. It will mean so much, even if it's only symbolic. We happen to believe that the, the ability to write the laws that we want to see to make lives better, you know, it's possible. It's not, the ERA is not just saying, do not discriminate. You know, it's saying, and here's this tool, you know, look at your country, decide what needs to be, what needs to be fixed and go and do it.
And so, you know so I, you know, we don't want to be held to that high bar that it has to do all of those things in order to be worthy. You know, why does this country treat its women so badly? You know, why did it take so long to get the vote? I was just, it was a disgrace. Why is it taking a hundred years to get an equal rights amendment?
It's a scandal. You know, these are things that should not happen,.You know, to be so adamant that women cannot have equal rights in this country, you know, or that you can't put in an amendment in the Constitution that only says you can't discriminate. You know, I know we always quote Justice Scalia, you know, who says, if you're asking me--a good friend of Ruth Bader Ginsburg, by the way, as you know, thank you for your great book. I love it--but if you're asking me if the Constitution has anything in it that says you cannot discriminate based on sex, the answer is no. So go and do it, you know, so I think that that's what we're trying to do, but, I don't think we should be held to the, you know, to this you know, will it help in equal pay?
It will, ultimately. Not the day after we get it. You know, but every year, and we know that the coalition that drives me crazy that we, if you're talking about equal pay for women, what the figures are for a Black woman, a Latino woman has to work, you know, almost a year to make what a white man, you know, made.
And the numbers are not changing. And here's the thing that we say about fixing the Constitution. In all of this time, we have spent so much money, so much time and energy trying to fix it, and it's not fixed and it won't be fixed until you fix the reason that all of this exists. And that is the Constitution. The fundamental understanding of who we are. Who has worth. It's got to change, you know. America has run on the cheap labor of women and its entirety, the cheap labor of its slaves and Black people. Its entirety, you know, the disenfranchisement of indigenous people and its entirety, you know, and until, you know, we say that we want to remedy this discrepancy, the sexism, racism that you know, is running wild through our country, you know, in the aftermath of this election that you know, that we've been through, we have to turn back to the document, you know, that everybody reveres so much and say, who's left out? Do you think we could get to the point where in 2021, you know, we would put them back in, even if it doesn't fix every single problem that we have? But anyway. You can tell that I get, I'm sorry, I got a little overly dramatic as the ERA Coalition staff even would say.
Rosen: [00:33:00] Not, not at all. The vigor of the arguments is very much appreciated, and this is a wonderful discussion. Inez, as that New York Times discussion of what the ERA might be construed to do added, "opponents have argued that the amendment would among other things, undermine family structure, intrude on religious practice and lead to the outlying of separate men and women's bathrooms, single college dormitories, and other accommodations." So, give us a sense of how you think if the ERA passed it might be construed and what changes it would wreak.
Stepman: [00:33:32] Before we get to the effects of the ERA, I would say first that I dispute the premise and I think that maybe this is perhaps two important premises that underlie the arguments that Carol just made. One, I do not think that in 2020 America is a systematically sexist nation. In fact, women have, prior to the pandemic, we had the lowest unemployment rate for women since the 1950s, since we started recording those statistics. Women own the majority of wealth in this country, meaning the average net worth of women is higher than men, particularly towards the end of their lives, because they live longer. And women make up the majority of new small businesses opening. Again, this is all pre pandemic. I don't know what has happened in the last eight months, but I don't think that the virus can be blamed for--as sexist. Right. So, and furthermore, women get the majority of college degrees, they get the majority of graduate degrees.
Right. So I don't see this same systemic sexism that Carol sees in this country. And so I dispute that underlying premise and therefore dispute the need for an ERA to fix it. In particular, I dispute the idea that the pay gap is a result of systemic sexism rather than a result of different choices that on aggregate women make than men.
So for example, women choose different college majors. They choose different hours. They often choose more flexibility over higher pay. Right? We can knock this argument back one step and talk about why they make those choices. But, I mean, even the Obama labor department in 2009, when an undertook, a massive review of all of the academic literature on the subject concluded that active discrimination is at most I think something like a cent that they couldn't explain of the wage gap, i.e. The rest of the wage gap is explained by the different choices that men and women make. So, I dispute all of those underlying premises and therefore dispute that the ERA would be the fix to those things. But, further, so even a more conservative estimate of what the ERA might do, right?
The one you will hear talked about in legal circles versus activist circles is, okay, we're going to raise sex to heightened scrutiny, right? The same way that we deal with race in the Constitution, we're going to deal with sex at the exact same standard, i.e. the courts are going to be extremely suspicious, without going into the different tiers of scrutiny and stuff, but extremely suspicious and require an absolutely ironclad reason for a state to treat men and women differently under the law, the same way that it requires an extremely high standard in all cases, in fact, except for affirmative action, which is controversial, to treat--the law cannot treat, you know, Black citizens differently from white citizens differently from Asian citizens.
Right. There is rightfully a very high tier scrutiny for that and the courts are suspicious of laws that discriminate on the basis of race. Sex, I would argue, is fundamentally different from race in the fact that there are real biological differences between men and women. First of all, obviously the physical, right.
We are, we are smaller. We are on average weaker. And these things have consequences. Now, not you know, they don't have consequences as to who can be an astronaut perhaps or who can be you know, the next Marie Curie. But they do have limited consequences that then have to be recognized by the law.
So I'll give you one example of a consequence where heightened scrutiny exactly resulted in an outcome that I think would be really disastrous for women. So, the Supreme Court has held that heightened scrutiny has to apply to any kind of discrimination on the basis of race within the prison system.
So even though there is very good evidence, for example, that you know, segregating prisons by race and racial gangs does decrease violence because you have less interaction in prison between rival gangs. So there is very good evidence that in fact it does lower violence. Nevertheless. The Supreme Court said, that's not a good enough reason.
Right. They kicked it back down to the lower courts and said, no, you have to apply heightened scrutiny. Even in this case, it is such an important principle under our Constitution that the state cannot discriminate on the basis of race that we're even going to say, you cannot use that tool to even to mitigate violence in the prisons.
Well, what happens when sex is you know, considered at the same level of scrutiny, right? Do we have mixed men's and women's prisons? It seems to me that the physical weaknesses of women in comparison to men make women uniquely vulnerable, if they were to be put in with male inmates in prison.
But according to the way we've treated race in this question, and if we were to raise sex at the same level, that would not be considered a good enough reason to keep separate men's and women's prisons, which after all is a discrimination on the basis of sex. And that's just the tip of the iceberg in terms of the laws that recognize these very real differences between men and women. That again, you know, might not matter in, you know, a certain academic context. They don't matter in, let's say 99% of situations in life, but they matter enormously in certain types of situations. So again, for example, public universities have sports teams, right?
They have generally male and female sports teams. We are having this huge debate over you know, what to do with a small number of people who are born one sex and identify as the other. Right. So but the ERA in my view would, sort of, would make that debate sort of irrelevant because it wouldn't matter whether, you know, somebody identifies as which sex, it would just be, I'm a boy. I want to run on the women's track team because perhaps I, my score doesn't qualify for the men's track team, but it does you know, beat out all of the women's scores on the women's track team. I'm being kept out from this team exclusively because of my sex as a man. That's a discrimination based on sex and an ERA would make that a viable constitutional challenge. And in fact, that's not pie in the sky speculation because we've actually seen it happen in Massachusetts. There's a case in 1979, in Massachusetts, that bases the ability of a boy to then join the women's team, particularly if that sport is not available to boys, it says that that the athletic association for public schools cannot forbid boys from joining the girls team on the basis of the ERA in that state. So again, state level ERA. So, you know, the consequences of this seems to me could be very, very radical. Sure, we're going to have to see how courts interpret it.
They may interpret it narrowly, but even that narrow interpretation, which would be raising it to heightened scrutiny and not, you know, sort of fomenting an entirely new branch of law, underneath the ERA, just sort of you know, putting sex on par with race in the Constitution, which is sort of the baseline that a lot of legal scholars and proponents say the ERA will do, even that I think will have a very substantial and oftentimes very negative consequences for women and girls, when those actual sex differences are no longer able to be recognized by the law.
Rosen: [00:40:23] Thank you very much for that. And thanks to all for joining the substantive debate so well. Professor Mansbridge, as you've just heard, there is a vigorous disagreement among your co-panelists about how broadly the ERA might be construed. And also whether the broad construction would be a good thing or not. What can we learn from history? In a review of the Mrs. America mini series, you wrote a piece for the American Prospect saying that one of the lessons of the ERA is to try today to avoid the dynamic of deafness and remember that the ERA movement in the seventies was truly a political movement from the ground up. And that social change requires that kind of mobilization. How would you advise young women who try to achieve goals they believe the ERA would achieve today? Should they focus on ratification of the amendment on making arguments in court or on political activism or on all of those things?
Mansbridge: [00:41:28] The head of the women's Christian temperance union once said when she was working to get the vote and it was her work, and the work as a woman's Christian temperance union that had a great effect on bringing women to vote, when asked what strategies the different organizations should take she said, we have a do everything program. And that meant if you were in Wyoming, do what's right for Wyoming. If you're in New York, do what's right for New York. If you're in Maine, do what's right for Maine. So I would say, just like Frances Willard, we should have a do everything program. People should work for women's rights in every way they possibly can. Sometimes that'll mean that they're in a position to try and get their state to ratify the ERA. But the other thing I said in that American Prospect article was about the dynamic of deafness. Let's be realistic about what the court will do. Will the court actually send women into combat on the same basis as men?
No, it won't. Will the court actually say that women have to share a prison cells with men? No, it won't. Will the court force teams? No. Amy Barrett just joined the Court. She's 48 years old. She's going to be on that Court for a long time. She's not going to make that decision. So, let's be a little realistic about what's actually going to happen. And let's take a look at the ERA as something that we put in the Constitution, so that just the way people say now, I have my right to free speech, you can't tell me what to do. Actually that's not true. A worker doesn't have a right to free speech in the factory. That's about that phrase. That's about a state action. But what makes people feel throughout the United States--I have free speech and they say to somebody, I have free speech--and so a girl can say, I have my equal rights. And she will say, I have my equal rights and that's how we'll get our equal rights is because she will stand up and she'll stand up for them because the principle is in the Constitution.
Rosen: [00:43:35] Thank you very much for that, and for that historical argument for an all prongs approach, and for your thoughts about how the ERA is likely in practice to be interpreted, if it were to be ratified by the courts today. Well, the Q and A box is just full of the most wonderful and relevant questions. There are so many, and I'll just offer a couple to each of you, Carol, Inez, and then we'll have closing arguments. We have a question asking, how would the intent of the ERA be determined today? Would it be the intent of the people who introduced it in 1972 or the ratifiers in 2021 or somewhere in between? And we have a question asking whether if the ERA is passed, would that mean a woman could be drafted? And then another question, how would the ERA affect interpretations of the equal protection clause under the 14th amendment? And just to put that legal bit of doctrine on the table, the Supreme Court in the Virginia Military Institute opinion that Justice Ginsburg wrote, said that gender-based classifications need an exceedingly persuasive justification.
The ERA would require that they have a compelling governmental interest, which is a higher tier of scrutiny. So, Carol recognizing that you'd think that the effect would not be radical, in what cases would it actually make a difference?
Jenkins: [00:45:08] Well, I think that I'm, I'm with Professor Mansbridge on this, that we will need to, you know, to see. I mean, I do believe, I think that it would have to be where we are in 2021. You know, that as opposed to back in the 1970s, we were living in a completely different world with a set of a set of expectations. But I think that that is to be determined. And, we are, you know, completely happy to, and expect, that whatever... that we are moving to the courts and that issues will be decided, you know, there, you know, once we have equal rights, completely willing to carry that all the way, you know, if it goes to the Supreme Court, as some say that it will, you know, we think that they probably would not take it up, you know, because it would be too much of a political, you know, action, you know, they would throw it back to Congress and they would have to, you know, decide it. But I, you know, I think we don't we don't know that much. I know Inez is, I've listened to her wonderful podcast about that, if you want, you know, to take your position up on that point.
Rosen: [00:46:26] Inez, I will ask a few questions to you from the Q and A box too, in the Bostock case, our great student Colin asks again, the Supreme Court recognizes that the title seven of the civil rights act protects LGBTQ people from employment discrimination. Would the ERA prohibition of equal rights under law on account of sex extend to members of that community, and how would that change existing protections under Bostock? And then we have questions about whether if the ERA has passed, would that mean that a woman could be drafted? Give us some more specific examples of changes that the ERA would affect if it were ratified.
Stepman: [00:47:08] Sure. So with regard to Bostock, yes, I do think that the analysis of title seven would be instructive. I don't know how, again, how judges would interpret it and how much of that would be that analysis would be imported into the ERA.
But it's important to remember that under Bostock there wasn't actually a quote unquote Soji finding, right? It wasn't-- there wasn't a finding that gender identity or expression was protected by title seven. In fact, Neil Gorsuch's opinion reads title seven and its prohibitions against discrimination on the basis of sex, just like the ERA, as including such things as, you know, if for example, a biological man wants to wear the uniform in a place of business that is normally intended for female employees. He can't be fired for that because it's a discrimination on the basis of sex, i.e. If he were a biological female wearing the skirt, then he wouldn't have been fired, but because he is a biological male wearing the skirt, it's a discrimination on the basis of sex. So they didn't actually find that that gender identity as a whole was protected under title seven, they found exactly that kind of discrimination on the basis of sex that the ERA prohibits.
So, to that extent, I do think a lot of the Bostock analysis would be imported into, you know, potentially imported into the ERA. In terms of other policy consequences, once you think beyond the immediate state and law, which I talked about before with regard to, you know, public school bathrooms, public school locker rooms public school sports teams, public university dorms, all of those things, and then of course prisons, and once you think of beyond that circle, there's the question of whether any institution that accepts federal money would be you know, pulled in to court cases under theERAa. So for example, battered women's shelters often accept either local state or federal money.
And, a lot of them are women only, right? For obvious reasons. These are women who have been traumatized by domestic violence, and they don't want to stay in a room with men while they're fleeing to these shelters. And again, we're seeing a lot of these issues come up with regard to the transgender context, but in that context, we're essentially talking about, you know, what accommodations we want to make for people who are representing a small number of exceptions.
Whereas under the ER we're talking about it in a much broader sense, right? Any kind of sex- segregated environment, certainly a sex-segregated environment that is directly linked to government and state action, but even perhaps a private institution that then gets some threshold amount of money, perhaps could not operate without federal state or local money that opens an entire can of worms as well. So, I think there are consequences there. Also, there are laws-- Ruth Bader Ginsburg said there are potentially hundreds or even thousands of laws, right, on the books that in some way recognize the distinction between men and women.
And, sometimes they do so without explicitly naming men and women, and Justice Ginsburg thought that in itself, that kind of renaming, right, so for example, that the spousal social security act, which was originally exclusively for women, for wives, to then draw spousal social security benefits on their husbands' work, right?
Decades of work paying into the system, that was originally a program intended for women, but is now relabeled as gender neutral. Justice Ginsburg was looking askance at some of those laws saying they are in fact, a cover for a subsidy to a particular sex and therefore a violation of what she called the equality principle.
Similarly, we have programs like WIC, women and infant children, right? So even if those laws were rewritten to be theoretically gender neutral or sex neutral, they still would be drawn into some of these court cases, depending on how the Supreme Court interprets this, how broadly they interpret it. And, here I do want to respond perhaps to something that Jane said. You know, all of these policy issues are contentious and being resolved by the electorate, an electorate, by the way, which is majority female in all modern elections, not just there are more female registered voters, but there are more actual female voters in nearly every modern election, for the last several decades. I'm sure Jane can give me the precise numbers on exactly when the last time it was that men out voted women in elections. And, it's just not convincing to me to say that we need to remove all of these issues, even potentially from this electorate, from Americans voting and working out in the normal process of public policy and legislation on both on the local and state level and on the federal level.
We need to potentially take all of these issues out of their hands and put it into the judiciary, which yeah, you're right. You know, the current Supreme Court is unlikely to interpret this law particularly broadly. Perhaps they interpret it in line with current equal protection doctrine, but current equal protection doctrine does allow a certain amount of flexibility, exactly for some of the issues that I've pinpointed. There is no guarantee that the ERA, on the face of it, which, I mean, the face of it prohibits these kinds of things that I've been saying about, you know, segregated prisons, sex-segregated prisons, and so on. On the face of the language, the ERA prohibits those things.
Now, maybe courts, you know, have a narrow reading that allows some of those things, but that won't always be the case. Right. And I'm not willing to just accept as a solution, we take all of these issues out of this, this electorate, we take it out of a vigorous public debate, we place it in the courts where it's extremely difficult to change.
And, so I, that argument is just not convincing to me that the fact that it might be temporarily read narrowly because of the particular composition of the Supreme Court at this moment in time, that for similar reasons, as I think proponents would like to put it in to the Constitution, I would argue against putting it into the Constitution because once you do that, there's very little going back and it's very, very difficult for the American public, if they don't like the consequences of that amendment, to then remove it. Like, the only instance we have of that of course is prohibition. So I, that's why that argument is not particularly convincing to me.
Rosen: [00:53:16] Thank you so much for those thoughtful, concluding thoughts and friends our one rule at the Constitution Center, as at the Supreme Court, is that we have to end on time. So we're going to do that. And I will conclude first by urging all of you to continue to educate yourself about the 19th amendment. You can do that on the National Constitution Center's Interactive Constitution. There is the most exciting interactive we've just posted that includes an interactive map that helps you see how women's suffrage at the state level paved the way for the 19th amendment and also the debates, these really exciting audio clips of the range of arguments that were advanced in the long fight for women's suffrage and as well as the drafting table. Oh, this is so cool. We've put on the early drafts of the 19th amendment and you can explore how they evolved over time, as well as early drafts ERA. And then of course you can make up your own mind, as is your privilege and responsibility as a learner about the Constitution. And with that, I will thank very sincerely our superb panelists, Jane Mansbridge, Carol Jenkins, and Inez. I am so grateful to all of you for having made your arguments with such distinction and educated our audience about the Constitution.
Jane Mansbridge, Carol Jenkins, and Inez Feltscher Stepman, thank you so much for joining.
Mansbridge: [00:54:44] Thank you.
Stepman: [00:54:45] Thank you.
Jenkins: [00:54:46] Thank you.
Rosen: [00:54:47] Thanks to you all. Have a great night, everyone. Thanks for the great questions. Happy holidays. And we'll look forward to seeing you early in 2021. Bye.
McDermott: [00:54:57] This episode was produced by me, Jackie McDermott, along with Taaya Tauber, John Guerra, and Lana Ulrich. It was engineered by Greg Sheckler. Please rate, review, and subscribe to live at the National Constitution Center on Apple podcasts, Spotify, or wherever you listen, and join us back here next week. On behalf of the National Constitution Center, I'm Jackie McDermott.
