By Jennifer Ju
Facing Ourselves
Jennifer Ju
“With liberty and justice for all.”
These are the words to which we pledge our allegiance. But how faithful are we to our pledge? Many point out that the Constitution was built in the image of its creators, none of whom were women or people of color, and many of whom considered enslaved people to be their property. It is not surprising then that the ensuing years have been marked by an ongoing struggle for rights equal to those which have been historically granted to white men.
Take, for example, the Equal Rights Amendment. First introduced in 1923, the ERA states, “Equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex.” Although the ERA was passed in 1972 by both the US House and Senate, before it could be officially ratified as the 28th Amendment to the Constitution it had to be ratified by three quarters of the state legislatures – with a deadline of 1979.
During the 1970s, women continued to fight discriminatory practices such as being fired for being pregnant or overcoming obstacles to getting credit cards. Despite this, three quarters of the states failed to ratify the ERA by the deadline. That deadline was extended to 1982, but still an insufficient number of states had ratified the ERA by then.
It would take almost 40 more years before the required minimum number of states had ratified the ERA.
Under the Trump administration, the Department of Justice deemed that the process needed to start from the beginning in order to officially make the ERA the 28th Amendment, since the 1982 deadline had not been met. In February 2020 and March 2021, the US House of Representatives passed a bipartisan resolution to remove the deadline to ratify the ERA and allow the ERA to become the 28th Amendment. However, Republicans filibustered in the Senate, blocking its passage. There was no support for the ERA by any male Republican senator.
Presently, the Archivist of the United States, whose duty is to certify that a proposed amendment is valid, has yet to certify that the ERA is officially part of the Constitution. As a result, state attorney generals have sued to demand certification and publication of the ERA by the Archivist.
In the meantime, resistance to the ERA remains. There are still several states that have yet to ratify the ERA. More sobering is the reality that multiple states have actually attempted to rescind their prior ratification. Others argue that the protections offered by the ERA are extraneous, as there is some protection for women already provided under the equal protection clause of the 14th Amendment. Furthermore, many assert that ratifying the ERA could be a disservice to women, as it could result in a kind of “sex-blindness” that could terminate protections afforded to women due to their gender, such as Title IX.
However, others point out that the ERA is vital, stating that the equal protection clause and the 14th Amendment offer less protection to women than that given to race, religion or national origin. Many are frustrated that gender equality in the US still lags behind the vast majority of the countries in the United Nations that have already constitutionally secured rights for women similar to those outlined in the ERA.
Supporters cite the importance of the joint House resolution, which declares that the ERA “provides a stronger constitutional basis for combating sex discrimination and provides Congress with more authority to enact laws that ensure gender equality” and that the ERA “would not allow for sex discriminatory laws and policies and could go beyond the protections that the 14th Amendment currently offers.”
After weighing the viewpoints of its opponents and supporters, you may wonder whether the ERA is much ado about nothing. Although the ERA was introduced 100 years ago, with ongoing efforts over the past 50 years to ratify it, progress in gender equality has nevertheless been made. Do we need the ERA if we are able to pass laws which support equality?
Without a more permanent protection available via the Constitution, our rights can be more easily revoked, as can be seen in the recent Supreme Court decision overturning the long-standing precedent of Roe v. Wade.
As Congresswoman Carolyn Maloney said, “I spend half my time in Congress fighting to hold on to what we already have, resisting efforts to roll back gains we’ve already made.” She added, “With women’s rights in the Constitution, we wouldn’t be dependent on who’s in Congress, who’s on the Supreme Court or who’s in the White House. Our rights would be protected.”
Recent events suggest that Constitutional protections are more urgent and relevant than ever. After all, justice is not blind. It is subject to human bias, beliefs, prejudices and agendas. We must ask ourselves: who are we as a people? What principles are foundational to who we are? What is too important to leave to chance?
Jennifer Ju, MD is a physician who is a graduate of the Brown University family medicine residency program. She is also an actor and writer who has performed in various theatres across the state and whose plays have been produced locally. Ju has also presented numerous online and in-person workshops on mindfulness, health and wellness for parents and children, as well as for pre-K-12 educators in New Haven and Fairfield counties.