GUEST EDITORIAL: Rebuke to Trump, a century in the making

Saturday, April 21, 2018 -- Donald Trump's presidency is also having some effects he probably doesn't intend. Rage at the election of a man who boasted about grabbing women's genitals helped set off the #MeToo movement's reckoning with sexual misconduct. A record number of women are running for office around the country. And now feminists could reach a goal nearly a century in the making, and that many assumed would never come to pass -- ratification of the Equal Rights Amendment to the Constitution.

Posted 9:00 a.m. Apr 21, 2018 — Updated 6:08 p.m. Jul 13, 2018

EDITOR'S NOTE: This editorial original appeared in The New York Times.

Having a sexist in the Oval Office who curries favor with conservative religious groups is having dire consequences. Health workers in developing nations are preparing for a rise in unsafe abortions due to President Donald Trump’s reinstatement of the global gag rule that prohibits federal funding of groups that provide abortion services or referrals. Here at home, his administration has been hostile not only to abortion access, but even to birth control.

But Trump’s presidency is also having some effects he probably doesn’t intend. Rage at the election of a man who boasted about grabbing women’s genitals helped set off the #MeToo movement’s reckoning with sexual misconduct. A record number of women are running for office around the country, many of them announcing their candidacies after participating in women’s marches the day after Trump’s inauguration.

And now, on Trump’s watch, feminists could reach a goal nearly a century in the making, and that many assumed would never come to pass — ratification of the Equal Rights Amendment to the Constitution. It 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."

The fight centers on Illinois, where the state Senate recently passed a bill to ratify the ERA. If the state House of Representatives also passes the legislation — supporters hope to see a vote next month, and are cautiously optimistic about the outcome — then Illinois will become the 37th state to ratify the amendment.

Approval by just one more state would bring the measure to the three-quarters threshold required for constitutional amendments. There are a handful of good possibilities, including Florida, Virginia and Utah.

Congress sent the measure to the states in 1972 with a seven-year deadline that was later extended to 1982. Thirty-five states signed on by 1977, then extensive conservative opposition arose, preventing further ratification. Nevada’s ratification last year was the first since then.

This recent progress counts as dizzying, considering how long supporters have been at it. So long that one of the original writers of the amendment, Crystal Eastman, died in 1928 — she was only 47, granted, but her co-writer, Alice Paul, has also been dead for decades.

An entire generation of feminists has come of age largely knowing the ERA as their mothers’ and grandmothers’ fight. That’s if they know about the amendment at all — a 2016 poll conducted by ERA supporters found that 80 percent of respondents thought the Constitution already explicitly guaranteed equal rights for women and men.

There are some questions about what will happen if a 38th state ratifies the amendment, given that it would miss the deadline Congress set by at least 36 years, and five states have even voted to rescind their ratifications. But ERA supporters and some legal experts make a plausible case that the amendment should still be recognized, pointing to, among other things, the 27th Amendment, on congressional pay, which was ratified more than 200 years after its passage by Congress, although no deadline had been set.

Then there’s the question of what the ERA would do. Even the most die-hard proponents of the amendment acknowledge that it’s unlikely to radically advance women’s rights, at least in the short term. That’s because, for decades, many courts have applied the Equal Protection Clause of the 14th Amendment to sex discrimination, creating a body of case law that’s functioned as a sort of de facto ERA. As to whether the amendment could actually undo some programs that are beneficial to women, like sex-based affirmative action efforts, legal experts point to the fact that though the Constitution already protects the rights of people regardless of race, race-based affirmative action continues to exist. They also point to parts of the country that have state-level ERAs and have not had such outcomes.

The fight against the ERA is being led by groups on the religious right like the Illinois Family Institute, using arguments that are the ideological heirs of those so vociferously expressed by Phyllis Schlafly, whose group STOP ERA — the first word standing for “Stop Taking Our Privileges” — which became the Eagle Forum, prevented the ERA’s ratification at the time.

Those arguments include fearmongering about how coed locker rooms could become standard and alimony for women outlawed — arguments that are hard to take seriously but that nonetheless helped Schlafly to very effectively convince Americans, including many women, that the ERA was bad news. (Schlafly, who died in 2016, would no doubt be appalled that her home state, Illinois, could now play such a pivotal role in ratification.)

Another conservative talking point is that the ERA would lead to abortion restrictions being struck down. That outcome is not at all certain, but it would help many women. (For obvious reasons, the anti-ERA crowd already had to slink away from an argument that the amendment would lead to legalizing same-sex marriage.)

Looking at everything the ERA would not do raises the question of why it’s still needed. Here’s why it is: The court decisions that make up the “de facto ERA” can be undone in a way a constitutional amendment cannot. The ERA would add an extra layer of legal protection for women — and men — against discrimination. This could become especially important if Trump gets to pick additional conservative Supreme Court justices.

There’s also a symbolic and emotional element to this fight that’s not to be discounted. Ruth Bader Ginsburg — who, before becoming a Supreme Court justice, fought many legal battles over gender discrimination and is a longtime supporter of the ERA — summed up this argument in 2014.

“I would like my granddaughters, when they pick up the Constitution, to see that notion — that women and men are persons of equal stature,” she said. “I’d like them to see that is a basic principle of our society.”

Enshrining women’s rights in the Constitution matters. Doing so now, during this presidency, would be particularly fitting.

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