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SOCIAL REVOLUTION AND THE EQUAL RIGHTS AMENDMENT
by Jo Freeman

Even before the deadline for ratification of the Equal Rights Amendment (ERA) expired in 1982, activists and scholars were analyzing the reasons it fell three states short of becoming the twenty-seventh amendment to the Constitution. A recently published annotated bibliography (Feinberg, 1987) on the ERA covering the years 1976-1985 devotes an entire chapter with 191 entries to its defeat-and four new books on the ERA have appeared since then. The ERA has attracted so much attention not just because it was an unsuccessful attempt to amend the Constitution, but because it symbolizes a revolution in relations between the sexes that has been in the public eye for the last twenty years. Those who applauded its defeat did so in the mistaken belief that the revolution was also defeated. Those who were angered knew that its defeat would change little of what had changed during the battle but deeply resented the denial of recognition a Constitutional amendment would have accorded.
The ERA has been controversial since first proposed in 1921, but the reasons and the partisans have changed over time. It was written by Alice Paul, founder and guiding light of the National Woman's Party (NWP), which had acted as the militant wing of the Suffrage Movement. After Suffrage, Paul and her supporters decided that the next step was removal of all legal discrimination against women and that the most efficient way to do this was with another federal amendment. The ERA was aimed at the plethora of state laws that restricted women's jury service, their rights to control their own property, contract, sue, and keep their own name and domicile if married; gave them inferior guardianship rights over children; and generally stigmatized them as lesser citizens. It was vigorously opposed by progressive reformer Florence Kelley and her allies in the National Consumers' League, the Women's Trade Union League, and the League of Women Voters, because she feared it would also destroy the protective labor laws for which she had spent her life fighting.
The preponderance of these laws limited the hours women could work each day and each week, prohibited night work for women, and removed women from certain occupations altogether. Some states also required minimum wages for women only, though the Supreme Court declared this unconstitutional in 1923. Although many of these laws had passed before Suffrage, Kelley and other progressives had joined the Suffrage Movement only after they became convinced that women must have the vote in order to pass more laws to improve the condition of working women. They were not about to see their decades of effort undermined by the utopian ideals of the militants.
The NWP was not initially hostile to protective labor laws; many members had fought for such laws in their home states. Early versions of the ERA exempted these laws from coverage. However, Kelley could not be convinced that any version would not be misinterpreted by the courts, and after much thought Paul and her colleagues decided that any exemption would become a universal exemption. Besides, she concluded, protective labor laws really hurt women more than they helped, because they encouraged employers to hire men. By the time the ERA was first introduced into Congress in December 1923, it had divided women's organizations into two warring camps, who fought each other to a stalemate for almost five decades.
This battle was more than a disagreement over what women wanted. Behind it was a fundamental disagreement over the meaning of equality. The NWP favored absolute equality of opportunity. Women would never achieve economic independence as long as laws treated them like children in need of protection. The reformers accepted fundamental differences in physiology and family role as incontrovertible. They noted that the female labor force was largely young, unmarried, and transitional. Labor unions did not want to organize women because they were not permanent workers and did not earn enough to pay dues. Thus collective bargaining did not offer the same protection for women workers that it potentially could for men. Only legislation could save them from gross exploitation by industrial capitalism.
Kelley called herself a socialist, though her allies in the women's organizations would not have used that term after it became tainted by the red scare of the twenties. Yet her view of women was solidly grounded in a conservative conception of the sexes. Whereas Kelley accepted the status quo, Paul was a feminist visionary; she saw what women could be, undistracted by their current reality. With rare and minor exceptions she ignored any political issue other than removal of all legal barriers to women's equality and economic independence. Despite her commitment to anti-communism, she thwarted an attempt to broaden the base of the NWP in 1952-1953 by including non-feminist patriotic issues.
Hindered by declining numbers and influence, the NWP kept the feminist faith burning through some very hard times. The Depression led to an upsurge of extant public opinion against the employment of married women, or any woman who had a male relative to support her. Such women were thought to be taking jobs away from men, who had families to support. The advent of the Roosevelt administration brought to power Kelley's disciples Frances Perkins and Molly Dewson, not to mention Eleanor Roosevelt, who, while a role model for activist women, thought the NWP "a perfectly useless organization."¹
World War II saw a renewed interest in both the ERA and working women. Several organizations shifted their opinion from con to neutral to pro, following the lead of the Federation of Business and Professional Women (BPW) in 1937, while many of the opposing organizations ceased to be active. Both political parties endorsed the ERA in 1944. When it was voted on for the first time by the Senate in 1946 it failed. When it came up again in 1950 opponents were ready with a crippling "rider" to exempt all laws for the protection and benefit of women. This was added on the Senate floor in both 1950 and 1953; after that the ERA never left committee. In the meantime, the NWP went through two crippling internal disputes involving purges and lawsuits. Leadership of the opposition was taken over by the AFL-CIO and traditional liberal organizations such as the ACLU. The Women's Bureau of the Department of Labor, a leading opponent since the ERA's inception, briefly withdrew during the Eisenhower administration (the only sitting President to endorse the ERA) but resumed its role with vigor when Kennedy appointed Esther Peterson as its director
When the women's liberation movement emerged in the mid 1960s, the ERA was a non-issue. Founders of the movement had no idea how much they owed to the lengthy battle over the ERA. Their focus was on the elimination of discriminatory practices and sexist attitudes, not legal rights. The role model for the women's liberation movement was the civil rights movement, not the old feminist movement. Nonetheless, the NWP knew an opportunity when it saw one. It infiltrated the National Organization for Women (NOW) as it had BPW and many other organizations, and in 1967 NOW endorsed the ERA. But by 1967 the world was a very different place than it had been in the 1920s. Women were one-third of the labor force, with a median age over forty. The fastest growing segment was mothers of young children. The traditional idea that "woman's place is in the home" was clearly out of date. The first objective of the new movement was to declare that "woman's place is in the world."
This new consciousness brought a new interest in the ERA and in 1970 Representative Martha Griffiths, a Democrat from Michigan and ERA's Congressional sponsor, launched a major campaign. By then the new feminist movement was the subject of an enormous press blitz with the ERA one of its three major issues. It took two years of intensive lobbying and two votes by each house, but the ERA was finally passed by overwhelming majorities and was sent to the states in March 1972. During those two years the ERA became a symbolic issue on which most everyone could agree. The traditional opposition from labor and liberals had crumbled as protective labor legislation was found by the courts to be in violation of Title VII of the 1964 Civil Rights Act, which prohibited employment discrimination.
Yet even as states raced to ratify, a new opposition was emerging. As in the twenties the opposition was organized by women, but this time it came from the right. Phyllis Schlafley had been active in the right wing of the Republican Party for many years and had a large following. In January 1973 she mobilized a STOP ERA campaign. The mostly northern and urban states that already had strong feminist movements quickly ratified the ERA. But after 1975, four states short of the thirty-eight needed, the ERA floundered. NOW recovered enough from its own internal conflicts to take over leadership of the ERA campaign in 1977, but it was already too late. The last state ratified that January. Even an unprecedented extension of the seven-year deadline was not enough to gain a single state, and in June 1982 the ERA became the fifth Constitutional amendment passed by Congress to be rejected by the states.
Post mortems abound to explain how what seemed to be a sure thing when it emerged from Congress in 1972 became problematical within a couple of years and a virtual impossibility after ten. Although it would have taken a switch of only seven votes in three states to achieve ratification, the commentators look to larger social trends rather than the microcosm of state politics for answers. Jane Mansbridge's insightful explanation of Why We Lost the ERA contains the sole case study of a state ratification campaign -- that of Illinois, an urban northern state atypical of the states that did not ratify.
Mary Francis Berry, a lawyer and historian, argues that ratification was never a sure thing. Defeat was predictable, she maintains, because consensus was lacking. The voters simply did not believe there was an urgent problem that only a constitutional amendment could solve. Comparing the ERA ratification experience with that of other amendments, she argues that the successful ones came after years of agitation "during periods of reform and not during periods of reaction" (1986:120).
Mansbridge, the only participant among the observers, agrees that it was an uphill battle in which consensus dissolved rather than solidified, particularly in the unratified states where the debate was heaviest. But she looks to organizational characteristics for a major part of the explanation. Both sides depended on volunteers, but even more than its opposition, "the ERA offered its supporters no tangible benefits." it was the principle of equality that sustained them and the resulting pursuit of ideological purity that scared those who were neutral. Most proponents argued that "the ERA would require the military to send women draftees into combat on the same basis as men" and some that the states would have "to fund medically necessary abortions if they were funding all medically necessary services for men." (Mansbridge, 1986:3). These arguments fed right into the right wing's paranoia that the ERA would destroy the family and persuaded the legislators to stick with the status quo.
Though ERA opponents raised many issues, some real (conscription) and some imagined (homosexual marriages), Gilbert Steiner pinpoints abortion as the issue that made the difference. Until the Supreme Court declared its restriction generally unconstitutional in January 1973, no one had thought to link abortion to the ERA. But organizations that favored the ERA tended to favor pro-choice, and those that opposed one usually opposed the other. After 1976 opponents of ERA claimed that the "Hyde" amendments to appropriations bills prohibiting funds for the abortions of poor women would be endangered if the ERA were ratified because the courts would find them a sex-based denial of equal protection. Consequently "public financing of abortion is to the [modern] ERA campaign . . . what protective labor legislation was to the [earlier] ERA campaigns" (Steiner, 1985:103).
Unlike protective labor laws, the potential impact of the ERA on the availability of abortions was not at all certain. But like that earlier period, the "real" effects of equalizing legal rights were almost irrelevant to the real debate. In the modern period even more than the earlier one, the ERA was the quintessential symbolic issue. It meant what people thought it meant, and all involved projected onto it both their fears and their hopes. But this time the emphasis was different than it was fifty years ago. The argument was not over the meaning of equality, but the role of women. This time the opponents rejected equality of any kind as desirable for women, favoring instead protection of women to pursue the traditional goals of wife and motherhood in a traditional way. To them the ERA symbolized not equal legal rights, but the entire women's liberation movement which, along with the other social movements of the sixties, was, they felt, a severe threat to their basic values and way of life.
While not a new issue, the ERA became newly public at the end of a major period of social reform and at the beginning of the women's movement. The timing couldn't have been worse. The sixties saw a major transformation in American society, and like previous social reform movements, it stimulated a backlash. The initial focus of that backlash was on busing, but it quickly spread to encompass the new issues of feminism, abortion, and gay rights, all of which were interpreted as an attack on the family and the American way of life. At the time the right arose, feminism was still riding on the crest of enthusiasm that accompanies all new social movements. This enthusiasm was sufficient for the two-year Congressional campaign but it was not uniform throughout the states. The new feminist organizations were not yet sufficiently organized to transfer resources to where they were most needed (states without an active movement) or to deal with practical political problems. By the time they were, it was too late.
Nonetheless, as several commentators pointed out, the war fared better than the battle. Feminism made the personal political and, in the process, raised everyone's consciousness about the importance of family issues, sexuality, and the role of women. It also stimulated major strides toward the legal equality that the ERA was originally written to achieve. Many state equal rights amendments were passed, discriminatory laws were changed, and the Supreme Court reinterpreted the basic premise against which laws affecting women were to be judged from one of protection to one of equal opportunity.
After the deadline expired in 1982, NOW and other groups saw that the ERA was reintroduced into Congress. Although no feminist of note has publicly opposed this move, it is not at all clear that it is desirable as other than a token gesture. Most of the real changes the ERA would have effected have already been achieved, and the value of debate over the symbolic issue has been pretty much exhausted. Unfortunately, there is no consensus within the movement on where to go next, so it continues to defend what it has already achieved.
Sylvia Hewlett, in a book that has been strongly criticized by feminists, supports a redirection of the movement. A former ERA supporter who has since concluded that the amendment was irrelevant to the real needs of American women, Hewlett argues that the important issue is not equal rights but "social benefits to ease the family responsibilities of working women" (1986:402). She urges adoption of the "family policies" of such countries as Sweden, Italy, France, and Great Britain, who she feels carried out the agenda only begun by Florence Kelley and her associates in the United States. Criticizing the radical feminists of all countries as "profoundly anti-children and anti-motherhood," she notes that this is not the dominant theme in Europe as it is in the United States. Hewlett repeatedly expresses surprise at how little interest and support she has been able to garner for such proposals as maternity leave and universal day care, which are common in Europe.
Although her proposals sound reasonable, in some ways they are much more radical than the ERA. This country at least has a tradition of equal rights, which legitimated the ERA. But it does not have a tradition of social support for working women. The right wing which read destruction of the family in the ERA, would also read it into policies that encourage mothers to participate in the labor force. The ERA was ahead of its time in the 1920s. The NWP saw it as a legal revolution, but did not realize that an economic revolution had to come first. Women had only just won the right to work; they had not achieved the right for their work to be taken seriously. The real revolution of the contemporary women's movement is that the vast majority of the public no longer questions the right of any woman, married or unmarried, with or without children, to work for wages or to achieve her fullest individual potential. The Supreme Court reflected this revolution in its series of decisions in the 1970s that took the legal revolution almost as far as the ERA would have done.
The next revolution is a social one -- a revolution in personal and family relationships. Although women have finally won the right to work, there is still a fundamental assumption that the principal social unit is the two-parent family, only one of whom is a primary wage carrier. There is still a basic division of labor in which men are expected to be the "breadwinners" and women are expected to focus their energies on the family, though each may "help" with the other's task.
The women's liberation movement began the social revolution with its critique of established sex roles. But it raised more questions than answers, and the backlash clearly indicates that, like the NWP in the 1920s, the movement is ahead of its time. Our society is not yet ready for the vast changes in the organization of work and in social policies that will be required to bring about this next step. These changes, like those that constituted the economic revolution, will probably accrue over time. They will come about as more women, and more men, adjust their lives to the conflicting pressures of family and work until a threshold of incompatibility is reached. At that time, as in the sixties, a new feminist movement will be needed to propose a new vision that can confront the problems of the social revolution.

REFERENCES

Berry, Mary Frances, Why ERA Failed. Indianapolis: Indiana University Press, 1986.

Boles, Janet K., The Politics of the Equal Rights Amendment: Conflict and the Decision Process. New York: Longman, 1979.

Cott, Nancy F., The Grounding of Modern Feminism. New Haven, CT: Yale University Press, 1987.

Feinberg, Renee, compiler, The Equal Rights Amendment: An Annotated Bibliography of the Issues, 1976-1985. Westport, CT: Greenwood Press, 1986.

Harrison, Cynthia, On Account of Sex: The Politics of Women's Issues, 1945 to 1968. Berkeley: University of California Press, 1988.

Hewlett, Sylvia Ann, A Lesser Life: The Myth Of Women's Liberation in America. New York: Survival in the Doldrums: William Morrow, 1986.

Hoff-Wilson, Joan, ed. Rights of Passage: The Past and Future of the Era. Bloomington: Indiana University Press, 1986.

Mansbridge, Jane J. Why We Lost the ERA. Chicago: University of Chicago Press, 1986.

Rupp, Leila J. and Verta Taylor, American Women's Rights Movement, 1945 to the 1960s. New York: Oxford University Press, 1987.

Steiner, Gilbert Y.,Constitutional Inequality: The Political Fortunes of the Equal Rights Amendment. Washington, DC: Brookings, 1985.

¹ Letter of March 12, 1952, Eleanor Roosevelt to Gertrude W. Fairbanks, Katherine St. George Papers, Manuscript Department, Cornell University Libraries; also in St. George oral history, Library of Congress.