Some women ‘out of touch’ as U.S. Congress breaks again on fairness & equal pay

Bernadette Cahill – WNN Opinion

U.S. women in a 1970s ERA rally
Women march in an exuberant 1970s rally to support the ERA – Equal Rights Admendment to the U.S. constitution. Image: Herizons

(WNN) Washington, D.C., UNITED STATES: Last May, an AP (Associated Press) news story reported that women were now moving into new jobs in previously all-male units in the United States army. The move opens up about 14,000 military jobs for women – making official the practice in Iraq and Afghanistan, where women have been “fighting and dying” alongside men.

The irony is that while women of the United States have already died for their country, women do not have human rights or equal rights under their Constitution. But U.S. diplomats have worked to ensure equal rights for women under the new Iraqi and Afghan constitutions.

The new U.S. army openings for women demonstrate that discrimination against women still exists in the United States; but to hear many people speak, equality of the sexes has been established for years.

Many advocates say that sex equality has actually never existed in the U.S.

Now as the 30th anniversary of the U.S. Congressional extension of the ERA amendment is coming on June 3o, 2012, the recent talk to revive the Paycheck Fairness Act has met again with the same U.S. Congressional stop that the original ERA has suffered. The Equal Rights Amendment was never ratified in the 1970s. Yet a poll that the Opinion Research Corporation conducted for for the ERA Campaign Network, a member of the National Council of Women’s Organizations revealed that even in 2001, seventy-two per cent of the population believed it had been.

Young American women seem ignorant they aren’t equal under the law. Khloe Wigginton, 19, a Nashville, Tennessee hairdresser, said she was “upset and shocked” to hear it. Adelia Kittrell, 29, a Little Rock, AR executive assistant said she “never imagined…women still were not recognized as equal under the law.”

Both Wigginton and Kittrell said they knew many women like themselves.

Equality A Founding Principle

Equality, stated in the Declaration of Independence as “all men are created equal,” was a founding principle of the United States. Yet it became clear very early that “men” did not include women – a fact borne out particularly in U.S. marriage laws throughout the nineteenth and well into the twentieth century.

Discrimination against women was most famously upheld in constitutional law in the case of Minor v. Happersett in 1875 when women lost their attempt to have the Supreme Court declare that equal voting rights applied to them under the 14th Amendment.

The most recent attempt to resolve this ancient issue was when Congress sent the ERA to the states in 1972. It achieved only 35 of the 38 ratifications necessary.

Further ratifications have not been forthcoming partly because the law relating to constitutional amendments in the United States, in the words of Walter Dellinger, then Professor of Law at Duke University writing in 1983 “is seriously flawed.”

Attempts to establish equality of the sexes by judicial review using the “equal protection” clause in the 14th Amendment have failed. Today, three standards apply to judgments of discrimination cases and sex discrimination falls, at best, in the middle.

Supreme Court Justice Antonin Scalia stated the situation in an interview with a U.S. California Lawyer in January, 2011. Referring to the 14th Amendment, he said, “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that.”

Laws and judicial review are often touted as the way to deal with continuing women’s legal inequalities in the U.S., but they involve serious shortcomings.

In 2007, Lilly Ledbetter’s failure to win her equal pay case against the Goodyear Tire & Rubber Co. in the Supreme Court demonstrated the fragility of statutory equal rights for women without an ERA.

But another problem is that if sexual equality depends only on statute law, these laws can always be repealed.

ERA More Necessary Than Ever

The 14th amendment, ratified in 1868, provided equal protection on account of race. This raises the question – as it did then:  “Why not sex?”

Sarah George, a 24-year-old marketing coordinator of Kettering, Ohio, pointed out, “Women’s rights are always relevant. There are always debates about racism. Race is still a topic today. If you can have racism, then sexism is still an issue.”

The ERA states:  “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

When the ERA was first introduced in 1923 and passed in 1972, multiple laws and practices discriminated against women – in divorce, employment, educational and sport opportunities and so on. Times have since changed: some of the young women interviewed for this article said that they had not experienced sex discrimination.

Young U.S. women protesting for equal pay rights 2012
Young U.S. women protest for equal pay rights 2012. Image: Pathways

It’s true that much legal discrimination has disappeared. Remaining inequalities and the shortcomings of statutory protections and judicial review still make the ERA necessary, argue women’s rights scholars, human rights advocates and activists.

“At a symbolic level, the ratification of the Equal Rights Amendment would affirm that the bedrock principles [of equality] of United States democracy…finally and without question apply equally to women,” said Roberta W. Francis, Chair of the ERA Task Force of the National Council of Women’s Organization in 2001.

The ERA, Francis also stated, “would clarify the law for the lower courts.”

“The ERA [would act] as a blanket insurance policy or a firewall for all laws passed for women,” said Virginia NOW President Diana Egozcue, speaking last February before a senate committee in support of Virginia’s ratification of the ERA.

Lisa Baldez and others in a 2006 Journal of Legal Studies analysis of the impact of state ERAs on judicial decision-making argued that it could raise sex discrimination cases to the much higher standard of race discrimination cases.

Problem Deadlines

The problem with the ERA is time-limits. The proposing clause in the 1972 ERA Resolution set a seven-year ratification deadline. The thirty-five states that ratified before the deadline expired represented about 72 per cent of the population, but the deadline consigned the proposed amendment to limbo.

In fact, conventional wisdom said that the ERA was dead. Its demise was so generally accepted that every Congress since has re-introduced the ERA. Representative Carolyn Maloney’s H.J. Res. 61 reintroduced the ERA in the House in June, 2011. This is called the start-over strategy and would require a two-thirds vote of both Houses of Congress and ratification by 38 states.

Yet, there is currently a debate about the necessity, the viability and the constitutionality of deadlines, arising from the ratification in 1992 of the 27th Amendment after more than 202 years. This amendment prohibited members of Congress from awarding themselves pay raises without going to the voters.

After the 27th Amendment ratification, an article in the William & Mary Journal of Women and the Law in 1997 argued that the ERA was still viable. This led to the three-state strategy – a proposal whereby the ERA would be fully ratified with three more states.

Last year, a measure that United For Equality of Washington, D.C. devised, refined this. In March 2011, House Joint Resolution 47 and in March 2012 Senate Joint Resolution 39 were introduced to remove the deadline from the original 1972 ERA resolution, basing the viability of these resolutions on the fact that the deadline in the 1972 ERA resolutions was only in the preamble to the wording of the proposed amendment. A 1977 memo to the President to do with extending the ERA deadline at that time said a change such as this required only a simple majority.

Deadline removal could help ERA workers in some of the fifteen unratified states. Camille Moran and ERA lobbyist in Louisiana, ERA, one of several that have tried ratification in recent years, said they always encounter the objection that the ERA is dead because of the deadline. Its removal could negate these objections.

Young Women In Favor

Young women who are informed do favor the deadline removal. Wigginton and Kittrell supported it. Julie Ellsworth, 33, a Huntsville, Alabama graphic designer said she wants it because Article V of the Constitution on amendments contains nothing about deadlines.

George said she was “surprised that [the Congress] would find it necessary to start over. HJ Res 61 would cost a lot of money… It surprises me that Congress would want to spend more money with the issue of the national debt today.”

Jennifer Free, 23, a music student in Redlands, California, would “probably be for the deadline removal.”

Jesse Lee Pope, 20, a math senior in Monroe, Louisiana, expressed surprise that equality of the sexes is still an issue, but  said, “I would be behind any move [to ratify].”

In 2009, The White House Project’s report, Benchmarking Women’s Leadership, analyzing U.S. women’s participation in the workforce, concluded, “while women may be participating in the workforce in equal – or in some cases, higher – numbers relative to their male peers, they rarely make it to the top…[There], women are stalled at 18 percent…”

If sex discrimination is creating this situation, young American women just starting out in work today would benefit most from a ratified ERA.

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In 1966 the U.S. Department of Labor placed this PSA – Public Service Announcement on American television nationwide. In it Batgirl, one of the main characters from the television show, adventure parody series, Batman informs that ‘she too’ deserves equal pay for equal work. On August 2011 the U.S. Department of Labor placed this PSA on Youtube for the first time. So the question is — Why aren’t women getting the same pay for the same work today and why aren’t U.S. legislators helping to get this legislation passed?

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For more detailed information on the ERA and the Paycheck Fairness Act  go to: ERA Education Project at ERA UNIVERSITY

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Scottish born Bernadette Cahill is a U.S. freelance journalist, author and historian with work based in Arkansas and North Carolina. She specializes in women’s issues, particularly the Equal Rights Amendment. She is currently researching and completing a book covering American suffragist and activist Alice Paul, who lead the campaign to get women the vote in 1920. Her upcoming book is also exploring the role and influence of woman suffrage on the American civil rights movement.

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©2012 WNN – Women News Network
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