Lee Milner
Sen. Heather Steans, D-Chicago, asks a question during a Senate Executive Committee session last week to determine whether to approved a new effort to ratify the Equal Rights Amendment. The previous efforts were unsuccessful in 1972 and 2014. The committee sent the proposal to the full Senate on a 12-3 vote. 
Posted May 1, 2017 10:06 AM
Updated May 1, 2017 11:30 AM
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ERA fight still alive 35 years later

By Andrew Maloney
Law Bulletin staff writer

SPRINGFIELD — Phyllis Schlafly, the conservative activist and tip of the spear in the battle against a women’s rights constitutional amendment, remembered decades later how arduous the fight was in Illinois.

“It just consumed the Illinois legislature for 10 years,” she told the New York Times in a short documentary about the 1972 Equal Rights Amendment last fall, just before she died. “I really got tired of going to Springfield. But I went.”

More than 30 years after it initially lost steam, the fight is back in the Land of Lincoln. State lawmakers have reintroduced a plan that would put the U.S. Constitution on track for a 28th Amendment that says equal rights can’t be denied “on account of sex.”

“You read it, and it’s just saying there should not be discrimination on account of sex. It’s very straightforward,” said Sen. Heather Steans, a Chicago Democrat and chief sponsor of the offering. “It’s hard to believe that in this day and age there are folks who would argue we shouldn’t have as many protections for women as we have for men.”

Conventional wisdom says the idea is an easy sell in a state that typically errs progressive, whose legislature is controlled by Democrats at a time when left-leaning groups are energized to oppose new Republican President Donald Trump.

But political math is not always easy. Illinois lawmakers have declined the invitation multiple times, most recently in 2014, when it was approved by the Senate but never called for a vote in the House. That’s exactly what happened in 1982 when Schlafly, who was born in St. Louis, inundated lawmakers with arguments about forced military conscription for women — and homemade bread.

From a legal standpoint, resurrecting constitutional proposals is not totally foolproof, either. The text of the Constitution hasn’t changed much over two-plus centuries, so there is little precedent for any type of tweak.

Opponents also argue the original 10-year deadline for the Equal Rights Amendment invalidates modern efforts to get it approved. But those working for passage of a 28th Amendment have a role model: the 27th Amendment.

The Madison amendment and the three-state strategy

It began with a middling paper in college. It ended with ratification.

That’s the thumbnail history of Gregory Watson and the reincarnation of the amendment that says congressional members can’t give themselves instant pay raises.

Watson, then a 20-year-old economics major at the University of Texas, needed a research topic in a class on government in 1982. That’s when he found out about a constitutional proposal from James Madison nearly 200 years earlier.

“No law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened,” it said.

It was voted on by only a handful of states before going dormant until 1873, when the Ohio legislature approved it as a protest of congressional lawmakers’ vote to give themselves a $5,000 pay boost. Wyoming made a similar vote more than 100 years later after another, similar congressional pay raise.

Watson argued the amendment was still viable. His professor reportedly gave him a C for his efforts. But the paper inspired him to reach out to other states and convince them to belatedly vote on the amendment as well.

The rest, as they say, is history. His grassroots effort picked up steam, and by 1992, more than 40 states in total had approved the “Madison amendment” as it was originally written. It was certified by the nation’s archivist, and — knowing full well the potential political costs — the House and Senate members overwhelmingly greenlighted it as the 27th Amendment to the Constitution.

For women’s rights groups, the Madison amendment is proof-positive their proposal is still viable — despite the fact there was a 10-year deadline in the Equal Rights Amendment. Amy Jo Conroy, a member of the American Association of University Women who testified for the change in Springfield last week, said one key is where the deadline was written.

“It’s in the preamble, the resolution. It’s not in the text of the amendment. It’s not in the active body, it’s not in the part that would be added to the Constitution,” Conroy said. “That is not what people — what state legislators are voting on, they’re voting on the text of the amendment. Therefore, Congress can change the rules.”

The amendment won support of 35 states before the deadline. But if the deadline wasn’t mandatory, the thinking goes, the amendment only needs three more states to approve it before it could be ratified — or at least go back to Congress, which could determine the timeliness of the idea. The so-called “three-state strategy” was developed at a summit of supporters in 1991.

Recharged effort

A 1997 paper in the William & Mary Law Review helped reinvigorate the discussion. It argued that whether the courts chose a strict construction of the language in Article 5 dealing with amendments, or the U.S. Supreme Court’s analysis in the 1939 case Coleman v. Miller — which said Congress has the final power to determine timeliness of a change — the time limit in the initial Equal Rights Amendment was not binding.

But opponents say the three-state strategy is legally dubious. For one, the 10-year deadline was initially seven years and was extended to 10 without states’ approval or a supermajority in Congress. Many of the states passed the language believing it would be on the table for seven years — not 10, let alone 45 — so tinkering amounts to a unilateral contract change, they argue.

Additionally, Kentucky, Idaho, Tennessee, Nebraska and South Dakota tried to rescind their ratifications. A U.S. district court upheld those moves to rescind in 1981 in Idaho v. Freeman, and the high court dismissed the case as moot in 1982 once the deadline elapsed.

“I think if we take something like this that has such serious ramifications and we manipulate the mechanisms to pass it, we erode people’s faith in the law,” Elise Bouc, chair of the group Illinois Stop-ERA, told lawmakers last week. “And I think it’s very important that we take that seriously, that you take that seriously as legislators, to maintain credibility under the law.”

The three-state strategy is now more of a two-state strategy, after Nevada approved the amendment in March.

The Senate Executive Committee where Bouc testified Wednesday approved the measure 12-3 with only one Republican vote.

Debate remains heated

“If the ratification of this amendment is fatally flawed, as you confidently stated at the onset of your closing, then why are you concerned and spend so much time dealing with the substance if it should never become part of the Constitution?” Sen. Donald F. Harmon, the chair of the committee and an Oak Park Democrat, asked Bouc during the hearing.

Essentially, Bouc said, because you can’t tell for sure how courts will interpret some things.

“We have seen some decisions by the Supreme Court recently that have left us scratching our heads — where we felt like their decision wasn’t really based on sound legal doctrine,” she said. “So we prefer to come to each of you and educate you and enable you to make a good, reasoned decision, rather than leave it up to the courts to make a decision.”

According to opponents like Bouc, the amendment would end beneficial policies that make sensible distinctions based on gender. That means eliminating exemptions from military combat, accommodations for pregnant women and Social Security benefits for stay-at-home mothers based on a spouse’s income.

Her group cited cases from other states that, like Illinois, have their own version of an equal rights amendment. In Massachusetts, the group argues, the state amendment was used to determine that stricter punishment for male inmates could also be used on female inmates (DuPont v. Wyzanski, 2004).

In Pennsylvania, it was used to determine women have to pay the same automobile insurance rates as men (Hartford Accident & Indemnity Co. v. Insurance Commissioner, 1984) and that a father didn’t have to pay primary support for his children (Conway v. Dana, 1974).

Opponents also argue current laws provide sufficient support for women. There are laws calling for equal pay, fair treatment of pregnant workers and, of course, the 14th Amendment calls broadly for equal protections.

Current laws go only so far

But, said Deane B. Brown, who chaired the Illinois State Bar Association’s Professional Conduct Committee and represents executives in employment disputes, unequal treatment isn’t totally covered by the 14th Amendment.

“Because the majority of sex discrimination is not intentional and for that reason can be even more persistent and damaging, the [ERA] could help in cases when a clear pattern of disadvantage to their sex exists, with or without demonstrable intent,” she said.

“If the ERA can eliminate the element of intent to prove systemic bias against women, that would be extremely beneficial to women.”

That could result in better workplace accommodations for pregnant women. As it stands, rights like extra restroom breaks are not covered under the Pregnancy Discrimination Act, she said.

Additionally, women could gain a new tool to challenge arbitrary pay discrepancies under a constitutional ban on sex discrimination.

Finally, she said, the amendment could be beneficial for lesbian, gay, transgender and bisexual citizens.

The 7th U.S. Circuit recently ruled that sexual orientation is a protected class under Title VII, in Hively v. Ivy Tech Community College. That decision, however, will likely be appealed to the high court. But a constitutional amendment based on “sex” could cover sexual orientation as well.

Bouc, with Illinois Stop-ERA, said she favors equal rights for women — just not through this version of a constitutional change.

“Again, we believe in equal opportunities for women, but we are opposed to the poorly written language of this amendment, because we believe this language will lead to extreme applications,” she said.

But Conroy said the “extreme” applications Bouc suggested would require court scrutiny that’s “devoid of logic, compassion, understanding, nuance, circumstances, et cetera.”

“Strict scrutiny is a balance of interests,” Conroy said. “My understanding, personally and from everything else I’ve read, it’s compelling interests, it’s narrowly-drawn [laws], and everything else you learn in constitutional law class.”

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