Abstract
In 1972, a proposed amendment to the national Constitution was approved by Congress and submitted to the states. The proposed provision, which was popularly known as the Equal Rights Amendment (ERA), declared that “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 ERA has been depicted as an indispensable tool in the campaign to eliminate gender differentiations in the law of the country and in the facets of social life (e.g., employment) to which this law is applied. The present chapter contends, with supporting demographic data, that the ERA did not become part of the Constitution because during the period (1972–1982) when states were deciding whether to ratify it, the societal place of women differed materially from the societal place of men. Although substantial movement toward convergence was occurring in the social position of women and the social position of men, American society as a whole had not yet undergone much of the gender-relevant societal change that took place after the midpoint of the twentieth century.
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- 1.
The Constitution allows an amendment to be proposed by Congress. The proposal must be backed by two-thirds of the members of the Senate and by two-thirds of the members of the House of Representatives. If this backing is obtained, the proposal is reviewed by the states, and assuming that it is endorsed by three-fourths of the states, the amendment becomes part of the Constitution. U.S. Const. art. V.
- 2.
Proposed Amendment to the Constitution of the United States, H.R.J. Res. 208, 92d Cong., § 1, 86 Stat. 1523 (1972) (received by the Office of the Federal Register, March 23, 1972) [hereinafter H.R.J. Res. 208]. The proposed amendment had two additional sections:
Sec. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Sec. 3. This amendment shall take effect two years after the date of ratification.
H.R.J. Res. 208, supra, at §§ 2, 3.
- 3.
E.g., U.S. Comm’n on Civil Rights, Statement on the Equal Rights Amendment 2, 4, 10–12, 30 (1978); Martha F. Davis, The Equal Rights Amendment: Then and Now, 17 Colum. J. Gender & L. 419, 422, 458–59 (2008). Contra, Paul Benjamin Linton, State Equal Rights Amendments: Making a Difference or Making a Statement?, 70 Temple L. Rev. 907, 940–41 (1997).
- 4.
U.S. Comm’n on Civil Rights, The Equal Rights Amendment: Guaranteeing Equal Rights for Women under The Constitution 2 (1981).
- 5.
Leslie W. Gladstone, Cong. Research Serv., The Proposed Equal Rights Amendment 5 (Rep. No. 82-51) (1982), available at https://digital.library.unt.edu/ark:/67531/metacrs8499.
- 6.
Sacha E. de Lange, Toward Gender Equality: Affirmative Action, Comparable Worth, and the Women’s Movement, 31 N.Y.U. Rev. L. & Soc. Change 315, 317–21 (2007).
- 7.
E.g., Deborah L. Rhode, Equal Rights in Retrospect, 1 Law & Ineq. 1, 72 (1983) (depicting the ERA as “an increasingly divisive constitutional symbol”); Serena Mayeri, A New E.R.A. or a New Era? Amendment Advocacy and the Reconstitution of Feminism, 103 Nw. U. L. Rev. 1223, 1229 (2009) (describing the attempt to ratify the ERA as “a bruising … battle”).
- 8.
Roberta W. Francis, Alice Paul Inst., The Equal Rights Amendment: Frequently Asked Questions (2017), http://www.equalrightsamendment.org/faq.htm (select “PDF version”) (last visited June 14, 2018).
- 9.
H.R.J. Res. 208, supra note 2.
- 10.
117 Cong. Rec. D 540 (1971).
- 11.
118 Cong. Rec. D 172 (1972).
- 12.
H.R.J. Res. 208, supra note 2.
- 13.
H.R.J. Res. 638, 95th Cong., 92 Stat. 3799 (1978) (received by the Office of the Federal Register, Oct. 20, 1978).
- 14.
H.R. Rep. No. 95-1405, at 4–5 (1978); id. at 23 (dissenting views of Mr. Mazzoli); id. at 52 (concurring views of Mr. Fish).
- 15.
124 Cong. Rec. 32,613 (1978) (letter from Professor Charles Alan Wright); 124 Cong. Rec. 32,614 (1978) (statement of Professor Stephen A. Salteburg); Orrin G. Hatch, The Equal Rights Amendment Extension: A Critical Analysis, 2 Harv. J.L. & Pub. Pol’y 19 (1979). For a contrary view, see Allison L. Held et al., The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States, 3 Wm. & Mary J. Women & L. 113 (1997).
- 16.
See supra note 1.
- 17.
Thomas H. Neale, Cong. Res. Serv., R42979, The Proposed Equal Rights Amendment: Contemporary Ratification Issues 14–16 (2018), https://fas.org/sgp/crs/misc/R42979.pdf (last visited July 28, 2018). The 35 states that ratified the ERA during 1972–1982, and the 5 ratifying states that approved measures to revoke their ratification, are named in id. at 14 nn.75 & 76. All of the 35 states that ratified the ERA during 1972–1982 did so before the initial ratification deadline, that is, before March 1979. Id. at 14 n.75.
- 18.
Id. at 5, 16. A bill to ratify the ERA was adopted by the state of Nevada in March 2017 and by the state of Illinois in May 2018. Id. at 5–6. However, these states acted after the Congress-specified ratification period was over. See text accompanying supra note 13. Uncertainty exists regarding whether a state that so acts has effectively ratified the ERA. Id. at 22–26.
- 19.
Possible paths to bringing the ERA or a similar provision into the Constitution are discussed in id. at 16–18.
- 20.
Louis Bolce et al., ERA and the Abortion Controversy: A Case of Dissonance Reduction, 67 Soc. Sci. Q. 299 (1986). Cf. Paul Taylor & Philip G. Kiko, The Lost Legislative History of the Equal Rights Amendment: Lessons from the Unpublished 1983 Markup by the House Judiciary Committee, 7 U. Md. L.J. Race, Religion, Gender & Class 341 (2007) (reviewing several major reservations—including the potential ramifications of the ERA for law on same-sex marriage, government funding of abortions, conscription for military service, and assignments of military personnel to combat units—that were expressed in proceedings of a committee of the U.S. House of Representatives during 1983 when the committee took up, after the ratification period for the ERA had ended, a renewed ERA proposal).
- 21.
In supra Chap. 1, see notes 85–87 and accompanying text. Indeed, this function is implicit in the definition of the word “constitution” as “[t]he system or body of fundamental principles according to which a nation, state, or body politic is constituted and governed.” 3 Oxford English Dictionary 790 (2d ed. 1989) (emphasis supplied) (def. 7).
- 22.
The gender-relevant cases that were decided by the Court during 1972–1982 are summarized in John E. Nowak & Ronald D. Rotunda, Constitutional Law 980–89, 994–96 (8th ed. 2010).
- 23.
An empirical indicator of the extent to which American adults supported tradition during 1972–1982 can be derived from the responses to a question that was asked in national sample surveys conducted in 1974, 1975, 1977, and 1982. The question was: “The United States Supreme Court has ruled that no state or local government may require the reading of the Lord’s Prayer or Bible verses in public schools. What are your views on this—do you approve or disapprove of the court ruling?” In each of the four years, at least three out of five respondents expressed disapproval. Mariana Servín-González & Oscar Torres-Reyna, Religion and Politics, 63 Pub. Opinion Q. 592, 620 (1999) (reporting the distribution of responses to the question in a Gallup survey done in 1963 and in the General Social Survey from 1974 to 1998). The question measured whether respondents approved or disapproved; it did not measure degrees of approval or disapproval (e.g., by allowing respondents to choose between “somewhat disapprove” and “strongly disapprove”). General Social Survey, GSS Questionnaires, http://gss.norc.org/Get-Documentation/questionnaires (last visited June 15, 2018). Accordingly, while a majority of the adult population in the United States during 1972–1982 evidently regarded tradition as important, the extent of a firm commitment to tradition is uncertain.
The mnemonic label for the question in the General Social Survey is prayer. Nat’l Opinion Res. Ctr., General Social Surveys, 1972–2016: Cumulative Codebook 346 (Sept. 2017), available at http://gss.norc.org/get-documentation (last visited June 15, 2018). The General Social Survey is briefly described in note 76 in supra Chap. 1. See also Philip Schwadel, Changes in Americans’ Views of Prayer and Reading the Bible in Public Schools: Time Periods, Birth Cohorts, and Religious Traditions, 28 Sociol. Forum 261 (2013) (studying responses to the question in the General Social Survey from 1974 to 2010).
- 24.
In 1975, the U.S. Supreme Court recognized the increasing similarity of male and female roles when it dealt with a statute that set the age of adulthood at 21 for males and at 18 for females. Stanton v. Stanton, 421 U.S. 7 (1975). As applied to monetary payments for child support, the statute was held to violate the equal protection guarantee of the Constitution because a divorced parent could make three fewer years of payments for a daughter than for a son. Id. at 17. In justifying its holding, the Court reasoned that
[w]omen’s activities and responsibilities are increasing and expanding. … If a specified age of minority is required for the boy in order to assure him parental support while he attains his education and training, so, too, is it for the girl. … [I]f the female is not to be supported so long as the male, she hardly can be expected to attend school as long as he does, and bringing her education to an end earlier coincides with the role-typing society has long imposed. Id. at 14–15
A similar line of reasoning was used in Trammel v. United States, 445 U.S. 40, 44, 52 (1980) (stressing that law once believed that a “husband and wife were one, and that since the woman had no recognized separate legal existence, the husband was that one”; observing that “[c]hip by chip, over the years those archaic notions have been cast aside” as societies have modernized; and quoting Stanton v. Stanton, supra, at 14–15, for the point that, in modern American society, “‘[n]o longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas.’”).
- 25.
Three indexes have been used to measure the extent of sex segregation in occupations, that is, the extent to which the distribution of women across occupations deviates from the distribution of men across occupations. To ascertain change over time in the magnitude of sex segregation in occupations, the indexes were applied to data collected in each of the six decennial U.S. censuses from 1950 to 2000. Asaf Levanon et al., Occupational Feminization and Pay: Assessing Causal Dynamics Using 1950–2000 U.S. Census Data, 88 Soc. Forces 865 (2009). All of the indexes rose from 1950 to 1960 and then steadily declined. Id. at 877 tbl. 3. The measure of sex segregation labelled Index A estimates the factor by which, in a given year, the average occupation has an overconcentration of either women or men. Maria Charles & David B. Grusky, Models for Describing the Underlying Structure of Sex Segregation, 100 Am. J. Sociol. 931, 946 (1995). For the categorization of occupations in the United States that is favored by Levanon et al. (which categorization incorporates shifts over time in the occupational makeup of industries), Index A showed that one sex was overrepresented in the average occupation by a factor of 5.35 in 1970 and by a factor of 4.51 in 1980. Otherwise expressed, in the average occupation, one sex was 5.35 times more likely in 1970 and 4.51 times more likely in 1980. Overrepresentation of one sex was thus substantial in the 1970–1980 period, although it was less than in 1960 (when Index A = 7.13). Levanon et al., supra, at 872, 877 tbl. 3.
- 26.
See Jo Freeman, Social Revolution and the Equal Rights Amendment, 3 Sociol. Forum 145, 147, 151 (1988) (contending that American society had not reached the point in the 1970s and 1980s where it would make the changes in gender-relevant social practices that were wanted by the feminist movement of the 1960s and by ERA advocates).
- 27.
See note 112 in supra Chap. 1 (discussing Larry D. Barnett, Legal Construct, Social Concept 47–55 (1993). Cf. Holly J. McCammon et al., How Movements Win: Gendered Opportunity Structures and U.S. Women’s Suffrage Movements, 1866 to 1919, 66 Am. Sociol. Rev. 49, 59, 62 tbl. 2 (2001) (studying the period from the year after the American Civil War concluded until the year before the Nineteenth Amendment, which permitted women to vote in federal and state elections, was added to the federal Constitution; using the share that women comprised of all college students in each state as an independent variable that might account for whether a state during this period adopted law that allowed women to vote; and finding that a state was more likely to have adopted such law when women were a larger share of college students than when women were a smaller share).
- 28.
The indicator is not a completely accurate measure of sex-role inequality because, inter alia, it fails to take into account disparities that can exist between women and men in their fields of concentration while in college, that is, in their college majors. See note 112 in supra Chap. 1.
- 29.
Larry D. Barnett, The Place of Law: The Role and Limits of Law in Society 226–27 (2011) [hereinafter The Place of Law]; Jennifer Flashman, A Cohort Perspective on Gender Gaps in College Attendance and Completion, 54 Res. Higher Educ. 545, 552, 564–65 (2013). See Claudia Goldin et al., The Homecoming of American College Women: The Reversal of the College Gender Gap 44 tbl. 10 (Nat’l Bureau of Econ. Research, Working Paper No. 12139, 2006) (using data on native-born White women aged 30–34 who had graduated from college; finding among these women that from 1970 to 1990 increases occurred in the proportion who were employed in a full-time job while decreases occurred in both the proportion of full-time employed women who were teachers and the proportion of women who had a child; and finding that the preceding proportions were essentially stable from 1990 to 2000).
- 30.
- 31.
A corollary effect of cohort replacement in the United States was a rise in gender egalitarianism among Americans during the last three decades of the twentieth century. Note 124 in supra Chap. 1.
- 32.
The data used to construct Fig. 3.1 are from U.S. Census Bureau, Table A-2: Percent of People 25 Years and Over Who Have Completed High School or College, by Race, Hispanic Origin and Sex: Selected Years 1940 to 2016 [hereinafter College Completion Rates by Race and Sex], https://www.census.gov/data/tables/2016/demo/education-attainment/cps-detailed-tables.html (under “Historical Tables,” select “Table A-2”) (last visited June 15, 2018). Figure 3.1 employs the data in the column labeled “White” and does not employ the data in any other column that explicitly references Whites, that is, the columns labeled “Non-Hispanic White,” “White alone or in combination,” or “Non-Hispanic White alone or in combination.” The column that was used to construct Fig. 3.1 reports percentages for only some years prior to 1964, namely, 1940, 1947, 1957, 1959, and 1962. The data omit persons who are institutionalized, that is, persons who are not expected to be labor force participants because of the types of facilities in which they are then housed. Illustrations of institutionalized persons include residents of correctional, juvenile, and psychiatric facilities. U.S. Census Bureau, Glossary, http://www.census.gov/glossary/#term_Institutionalizedpopulation (definition of “Institutionalized population”) (last visited June 15, 2018).
- 33.
- 34.
During the last half of the twentieth century, the course taken by the ratios in Fig. 3.1 noticeably paralleled the change that occurred at this time in the degree of sex segregation in the average U.S. occupation. To ascertain the latter change, I used the numerical values for Index A that were the basis of the discussion in supra note 25. Between adjacent census years, the extent to which the average occupation exhibited sex segregation differed by the following percentages:
1950–1960
+8.7
1960–1970
−25.0
1970–1980
−15.7
1980–1990
−16.9
1990–2000
−3.2
Calculated from the data for Index A under OCC1950*IND1950 in Levanon et al., supra note 25, at 877 tbl. 3.
- 35.
Similarly, although sex segregation in occupations decreased in the 1970s, 1980s, and 1990s, the decrease started in the 1960s. See supra note 34.
- 36.
David Card & Thomas Lemieux, Going to College to Avoid the Draft: The Unintended Legacy of the Vietnam War, Am. Econ. Rev., May 2001, at 97, 101.
- 37.
The ratio of the percentage for White males to the percentage for White females was 1.000 in 2014.
- 38.
Louis Bolce et al., The Equal Rights Amendment, Public Opinion, & American Constitutionalism, 19 Polity 551 (1987).
- 39.
Neale, supra note 17, at 14 & n.76, 16.
- 40.
The thesis is summarized in the text accompanying notes 12–16 in supra Chap. 1.
- 41.
Riva B. Siegel, Text in Context: Gender and the Constitution From a Social Movement Perspective, 150 U. Pa. L. Rev. 297, 309–10 & n.29 (2001).
- 42.
Cong. Research Serv., The Constitution of the United States of America: Analysis and Interpretation, S. Doc. 112-9, at 49–51 (2017), available at https://www.congress.gov/constitution-annotated (last visited June 15, 2018).
- 43.
- 44.
This hypothesis is supported by the findings of Katy M. Pinto & Scott Coltrane, Divisions of Labor in Mexican Origin and Anglo Families: Structure and Culture, 60 Sex Roles 482, 492 (2009). For a discussion of the nature of culture and the relevance of culture to law, see Sect. 2.3.2 of supra Chap. 2 as well as the following in the second volume: Sect. 2.2.2.1 of Chap. 2, Sect. 4.4.1 of Chap. 4, and Sect. 5.2.1.2 of Chap. 5.
- 45.
In Chap. 2 of the second volume, see (1) notes 68–73 and their accompanying text (discussing the demographic impact of World War II) and (2) note 77 (discussing the demographic impact of World War I and the 1918–1919 influenza epidemic).
- 46.
The observable effects on societal structure of shifts in technology are probably uneven over time rather than continuous and constant in magnitude. If so, improvements in technology have period-specific effects on societal structure. A noteworthy instance of change in the societal structure of the United States has occurred since the end of World War II: The labor force participation rate of working-age men became more similar to the labor force participation rate of working-age women as the rate fell among men and rose among women. Willem Van Zandweghe, Interpreting the Recent Decline in Labor Force Participation 8 chart 2 (Fed. Res. Bank Kansas City, 2012), https://www.kansascityfed.org/publicat/econrev/pdf/12q1VanZandweghe.pdf (last visited June 15, 2018). From at least the mid-1960s onward, the decline in labor force participation has been much larger among men who had not gone beyond high school than among men who had earned at least a bachelor’s degree, but after the initial years of the twenty-first century, change in educational attainment had a relatively small impact on rates of male labor force participation within education levels. White House Council Econ. Advisers, The Long-Term Decline in Prime-Age Male Labor Force Participation 13 fig. 9, 14 fig. 10 (2016), https://obamawhitehouse.archives.gov/sites/default/files/page/files/20160620_cea_primeage_male_lfp.pdf (last visited June 15, 2018). Once expanding educational attainment added little to male labor force involvement, there was no offset to the negative impact on that involvement from the increasing power of technology. Eleanor Krause & Isabel Sawhill, Brookings Inst., What We Know and Don’t Know About Declining Labor Force Participation: A Review 11–15 (2017), available at https://www.brookings.edu (last visited June 15, 2018). Cf. David H. Autor et al., The Skill Content of Recent Technological Change: An Empirical Exploration, 118 Q. J. Econ. 1279, 1322 (2003) (focusing on the spreading availability of computer technology during the period from 1960 to 1998; studying the effect of the spread of this technology on routine tasks and on tasks requiring originality and flexibility; and surmising that the wider use of computer technology increased the economic demand for college-educated workers). Notably, just a small portion of the decline observed in male labor force participation during the twenty-first century was due to changes in the age composition of the population. White House Council Econ. Advisers, supra, at 12 fig. 7, 16.
- 47.
The 48 states in the continental United States are listed by their geographic region in Table 2.1 in Chap. 2 of the second volume. The two states outside the continental United States—Alaska and Hawaii—are in the West. U.S. Bureau of the Census, Geographic Areas Reference Manual. Ch. 6: Statistical Groupings of States and Counties 24 (1994), available at http://www.census.gov/geo/reference/garm.html (follow “Chap. 6” hyperlink) (last visited June 15, 2018).
- 48.
Supra note 17 and accompanying text. For the names of the 15 states that did not ratify the ERA during 1972–1982, see Julie Suk, An Equal Rights Amendment for the Twenty-First Century: Bringing Global Constitutionalism Home, 28 Yale J.L. & Feminism 381, 437–38 tbl. 2 (2017).
- 49.
- 50.
Supra note 17.
- 51.
- 52.
Id. The measurement of this dimension of culture (labelled “morality situs”) is described in the text that accompanies notes 67 through 72 in supra Chap. 2.
- 53.
Two studies have identified state-level variables that contributed to whether a state ratified the ERA, but none of the variables examined in these studies directly measured male-female disparities in education attainment, for example, college completion. Sarah A. Soule & Susan Olzak, When Do Movements Matter? The Politics of Contingency and the Equal Rights Amendment, 69 Am. Sociol. Rev. 473, 484 (2004); Sarah A. Soule & Brayden G. King, The Stages of the Policy Process and the Equal Rights Amendment, 1972–1982, 111 Am. J. Sociol. 1871, 1887–88 (2006).
- 54.
- 55.
See Theorem 11 and its accompanying discussion in supra Chap. 2.
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Barnett, L.D. (2019). Equal Rights Amendment. In: Societal Agents in Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-01827-6_3
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