New era for ERA? 50-year battle heads toward face-off between Biden White House and Trump Supreme Court

By: - December 2, 2020 7:00 am

Clarissa Horsfall demonstrates at a 2017 rally in Miami in support of equal pay for equal work. Photo by Joe Raedle/Getty Images

Five decades after a wave of lady-led conservativism killed the Equal Rights Amendment, the ERA is back and now faces its best of hope of being added to the U.S. Constitution.

President-Elect Joe Biden, who sponsored passage of the ERA nine times as a congressman, and Vice President-Elect Kamala Harris, the first woman elected to the White House, pledged to work to “enshrine gender equality” in the Constitution as its 28th amendment.

However, President Donald Trump, who opposes passage of the ERA, may yet see to the amendment’s defeat, thanks to the conservative justices he placed on the U.S. Supreme Court.

“I definitely think that now we have a decent chance of seeing it pass,” says Dr. Claire Oueslati-Porter, cultural anthropologist and director of gender studies and women’s studies at the University of Miami. “But don’t underestimate the cultural forces that will mobilize to shut it back down.”

Law professor Caroline Mala Corbin, at UM’s School of Law, said a president can place obstacles in the ERA’s way, as Trump did, but cannot simply usher it into the Constitution, as ERA advocates hope Biden would do.

“The Supreme Court has the ultimate say on what the Constitution means,” Corbin said. And the solidly conservative majority that Trump and his allies have assembled on the high court is likely to look unfavorably on abortion-rights cases and any laws, such as the ERA, that might bolster abortion rights, Corbin predicted.

Still, there are huge moving parts that will direct the path of the proposed amendment, which would permanently guarantee equal treatment for all people regardless of their sex.

A new administration

Big things happened on the ERA front in 2020, starting when the Virginia Assembly in January became the requisite 38th state to ratify the measure, which was approved by Congress and sent out to the states in 1972.

However, the 1989 deadline on ratification has long expired and five of the 38 states rescinded their ratifications when the tide of public opinion turned in the late 1970s.

Citing those and other reasons, Trump’s Department of Justice, run by Attorney General William Barr, refused to acknowledge Virginia’s action and declared the ERA dead.

The group Equal Means Equal, and other ERA advocates, including the attorney general of the state of the Virginia, filed lawsuits asking the courts to overrule Barr, arguing that contemporary Americans clearly support equal rights for all under the law.

Attorneys general of several states who oppose the ERA, substantively because they oppose abortion rights, joined the fray on the side of the Trump administration.

Scores of interested parties joined the legal challenges on each side, and the battles continue.

Then, in an historic turn of events, liberal Supreme Court Justice Ruth Bader Ginsburg died, creating a vacancy that Trump and the Republican-controlled Senate hastily filled with a conservative, seating Amy Coney Barrett just before Election Day and solidifying the conservative majority on the court.

Now enter Biden and Harris, scheduled to be sworn into office Jan. 20.

“We are heartened to see Biden strongly support the ERA in his women’s agenda, where he promises to work hard to make ERA a reality,” said Kamala Lopez, executive director of Equal Means Equal, which launched a social-media campaign, #PublishERA, on Nov. 24 to rally support.

The campaign has called upon Biden to reverse the Department of Justice actions blocking acceptance of Virginia’s ratification documents. Equal Means Equal believes that will trigger the publishing of the ERA as the 28th amendment to the U.S. Constitution, and the group requests that happen on Jan. 27, exactly one year after Virginia became the 38th state legislature to ratify.

“We ask President-Elect Biden to make this quick and easy call, which will go such a long way towards thanking the American women for their yeoman’s work in the past election as well as showing us the respect we deserve.”

Florida Congresswoman Val Demings and Florida state Sen. Linda Stewart, both Democrats in Orlando, who have sponsored or co-sponsored pro-ERA legislation, also are counting on a new direction for the ERA under the Biden-Harris administration.

“Many Americans believe that equal rights for women is already part of our Constitution, because it seems so basic. It’s baffling to me that any lawmaker would block laws designed to ensure their daughters, granddaughters, and nieces are treated equally and fairly,” Demings wrote in a statement for the Phoenix.

She continued, “President-Elect Biden shares this important goal, and I am hopeful that with a new administration we can finally remove these archaic barriers. It’s time.”

Stewart, along with Democratic state Reps. Fentrice Driskell of Hillsborough County and Dotie Joseph of Miami-Dade plan to sponsor, not for the first time, legislation to ratify the ERA in Florida in the upcoming 2021 session. With Republicans long controlling the state House, Senate and governor’s office, such legislation has not even been granted a hearing for many years.

“I plan to again push for Florida to take the long-overdue step of ratifying the ERA at the state level, and I’m hopeful that Florida’s action, along with support from the incoming Biden-Harris administration, can be a signal to Congress to heed the decades-long call of the American people to finally guarantee women equal rights in the Constitution,” Stewart wrote in a statement for the Phoenix.

Kim Porteous, president of the the National Organization for Women in Florida, said she is hopeful that Biden, Harris and the U.S. Senate will act to abolish the controversial ERA deadline.

“Joe Biden and Kamala Harris have exactly what it takes to move our Senate forward, drop the deadline, and move the ERA forward,” Porteous said. “Equality is a fundamental need and a right that we will not stop fighting for until we have it.”

Florida Sens. Rick Scott and Marco Rubio, Republicans, did not respond to questions about whether they would support or oppose passage of the ERA.

“It’s going to be tough”

Corbin and Oueslati-Porter predict the ERA will continue to face legal and cultural challenges that the Biden-Harris administration will not be able to control, though their support from the White House and among voters who elected them will be important.

Oueslati-Porter, the cultural anthropologist, cites anti-feminism among conservatives who may actually practice and insist on equal treatment regardless of sex but are put off by the feminist brand.

Likewise, Phyllis Schlafly, who was Harvard-educated, ambitious but regimentally ladylike, mobilized an army of homemakers by calling feminists “radicals” and used them to snuff out the ERA in the 1970s as it neared the 38-state threshold, according to the profile posted by Eagle Forum, the conservative, fundamentalist group she founded and led.

Corbin, the law professor, foresees that Trump’s Supreme Court likely will view abortion rights law and the ERA through the same lens.

“The bottom line is, the same court that will decide if abortion is protected under the Constitution will decide if the ERA protects abortion rights,” Corbin said.

The two scholars predict young women and young conservatives may be the deciders in the end, at least on the cultural front, because respect for reproductive rights and equal rights for women, LGBTQ people and all people seems to come naturally to them in an increasingly diverse society.

“The difference is a lot of young women are unapologetic feminists. They could be a real force to be reckoned with,” said Oueslati-Porter.

“Young Republican women and other Republican women have often been a force for resisting misogyny of some conservative men … and supporting women, so that abortion remains safe and legal, or so they don’t seek abortions in the first place.”

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Laura Cassels
Laura Cassels

Laura Cassels is a reporter, former statehouse bureau chief, and former city editor. She is a classical pianist, a Florida State University graduate and proud alum of the Florida Flambeau, an independent college newspaper.