By: Lori G. Levin
The Illinois House is currently poised to consider finally ratifying the Equal Rights Amendment to the United States Constitution after SJRCA 4, supporting ratification, recently passed the Illinois Senate.
The Amendment simply states that “Equal rights under the law shall not be denied or abridged by the United States or any state on account of sex.” This sentence, ensuring gender equality under the United States Constitution was first proposed by the National Women’s Party to Congress in 1923.
This appears to be a simple concept: Women should have equal rights to men under the United States Constitution. Illinois’ state constitution guarantees equal rights, but the federal Constitution does not do so. In Illinois, Article 1, Section 18 of the Illinois Constitution states:
“The equal protection of the laws shall not be denied or abridge on account of sex by the State or its units of local government and school districts.” As each legislator has sworn to uphold the Illinois Constitution, it would seem that support of the Equal Rights Amendment would be necessary.
The battle for equal rights for women in this state has been long and hard. While the United States Supreme Court has extended a level of protection to women under the Constitution, at least two United States Supreme Court justices from opposing sides of the political spectrum believe that the 14th Amendment does not apply to gender. The Equal Rights Amendment would ensure that women receive the same protection as other groups no matter where they live in the United States.
Amending the United States Constitution can be an arduous as well as a long process. Congress must pass all amendments by a two-thirds majority in both houses. Amendments must then be ratified by three-fourths of the state legislatures.
The ERA was passed by both houses of Congress in 1972. It was then sent to the state legislatures for debate and ratification. A deadline was set for ratification of March 22, 1979. Within the first year, 30 of the necessary states ratified the amendment, with an additional five joining ratification by 1977. In 1978, the ratification deadline was extended to 1982. Although the Illinois House voted to support ERA in 1980, the vote fell short of the necessary three-fifth requirement. Last year, Nevada voted in favor of the ratification. Parenthetically, five states have voted to rescind their ratification.
In the 1970s, a female Illinois lawyer Phyllis Schlafly, led the charge against the ERA. She claimed that the passage of ERA would eliminate alimony, sexual assault laws and same sex bathrooms. Per ushistory.org, the Stop-ERA movement delivered baked apple pies to Illinois legislators and hung “don’t draft me” signs on baby girls.
Although many of these “scare” tactics evidently worked thirty years ago in the Illinois legislature, that movement did not keep women from pursuing careers nor from achieving significant steps towards equality.
Congress, itself, has introduced the ERA in every session since 1982. There is pending legislation in the United States Senate and in the House of Representatives to eliminate the deadline. Proponents of the ERA assert that Congress has the ability to eliminate the deadline for ratification, recognize prior ratifications, and even to nullify the attempted rescissions of the ratifications.
As United States Congresswoman Carolyn B. Maloney (D-NY), who has sponsored the ERA since the 105th Congress, states in her letter to her colleagues that “Our democracy rests on the principle of ‘liberty and justice for all.’ We need the ERA to ensure that this concept applies equal to women.”
One of Representative Maloney’s most cogent legal arguments in her ERA position paper describes how ERA would make a difference in the litigation of allegations of discrimination based on gender. She states that “the courts currently determine whether a government statute or classification is discriminatory by using a heightened standard of intermediate scrutiny test. The intermediate scrutiny test provides that the government must prove that its classification based on sex is substantially related to achieve an important government interest.
The passage of a constitutional amendment regarding sex discrimination would likely raise the standard utilized by the courts from intermediate scrutiny to strict scrutiny The strict scrutiny test, which is currently only applied to classifications based on race, national origin, and alienage, is nearly impossible to overcome. Strict scrutiny requires that the government prove the classification is necessary to achieve a compelling government interest, with no less restrictive means to achieving that interest available.” She further states that it would be difficult under the strict scrutiny standard of review to justify government classifications based on gender. In order to rectify that, support and ratification of the Equal Rights Amendment is necessary.
Illinois is poised to be one of the two last states necessary for ratification. Two years ago, the Illinois State Association unanimously voted to support ratification and the Women’s Bar Association of Illinois has long supported ratification. The Illinois House should join the Illinois Senate and ratify the ERA.
“Every Constitution written since the end of World War II includes a provision that men and women are citizens of equal stature. Ours does not.” Supreme Court Associate Justice Ruth Bader Ginsburg
“We ask justice, we ask equality, we ask that all the civil and political rights that belong to citizens of the United States, be guaranteed to us and our daughters forever.” Declaration of Rights for Women, July 1876
Lori G. Levin is an experienced criminal and juvenile defense attorney who practices in the North Shore and greater Chicago area. She can be reached at 312-972-3756 or [email protected]. Her website is www.lorilevinlaw.com. She can also be found on Facebook at www.facebook.com/chicagodefense and Twitter @LoriLevin.