Is there a need for the ERA in 2020?

The Equal Rights Amendment (ERA) to the U.S. Constitution — referring to the 1972 proposed constitutional amendment that would mandate that “(e)quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex” — is back on the national radar, even if it may only be in a symbolic sense.

Two weeks ago, Virginia became the 38th state to ratify the amendment. After Democrats took control of the commonwealth’s Legislature last November (electing a record number of women in the process), the long-sought ratification appeared within reach.

By law, amendments are added to the U.S. Constitution only after three-fourths of the states approve their passage. Virginia’s approval put the ERA past threshold.

However, proposed constitutional amendments are not on the table for perpetuity. The ERA’s window for passage was originally set to close in 1979, but that was extended to 1982. Even so, the amendment fell three states short of passage at that time.

Efforts have been ramped up in recent years to get three more states on board, and it finally worked. Nevada approved the ERA in 2017, followed by Illinois in 2018 and, now, Virginia.

However, five states — including South Dakota and Nebraska — have rescinded their earlier ratifications, and now South Dakota has joined Alabama and Louisiana in filing suit to halt further efforts at ratifying the 1972 amendment.

Whether the ERA can still be adopted is a matter for the courts to untangle, Frankly, because the amendment missed its extended window of opportunity for passage, one wouldn’t be surprised to see it dismissed.

But the symbolism of it getting this far may ignite a fresh effort to add this amendment to the Constitution.

Certainly, a lot has changed since the ERA was passed by Congress 38 years ago. One of the big arguments against the amendment at the time was that it might expose women to a military draft and combat. Obviously, women have now become integral components of America’s fighting forces — female soldiers have fought and died for this country — so that argument now feels antiquated. There were also arguments that women might lose alimony rights, as well as the advantages they had in child custody cases in divorce. But those situations have also evolved through the years.

So, it could be argued that the ERA that passed in 1972 is from a much different age.

But the general concept of equal protection under the law on the basis of sex should be universal. (In fact, 25 states have their own versions of the Equal Rights Amendment in their constitutions.) And now, as more women are in leadership roles in lawmaking, politics, business, the military and other endeavors, the spirit of the ERA should be a fact. And given the strength of the #MeToo movement, the demand for equal justice is louder and more powerful than ever.

But the reality that there’s even a perceived need for a #MeToo movement and the fact that, for instance, women in 2019 made only 79 cents for every dollar a man made, according to CNBC, paints a picture of lingering, frustrating inequity that remains rooted in the American landscape nearly four decades later.

So, if the ERA ratification fails to gain legal approval, a new version of it should be crafted and, eventually, put to the states for another vote.

When South Dakota Attorney General Jason Ravnsborg announced this state’s lawsuit to halt the ERA’s implementation (a move that, otherwise, had an unfortunate symbolic look for this state), he noted in a press release, “If Congress wants to pass an updated version of the ERA, taking into consideration all the changes in the law since 1972, I have no doubt the South Dakota Legislature would debate the merits in a new ratification process.”

Ultimately, the matter of equal rights for men and women shouldn’t be a point of argument, whether it was in 1972 or it’s in 2020. But it is. One way or another, equal protection must become the spirit and rule of the land, not an exception. And if an ERA is needed to achieve that, then so be it.

* Guest editorial from the Yankton Daily Press & Dakotan in South Dakota.


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