“We Lack a Firm Constitutional Basis for Equal Rights on the Basis of Gender”: Mary Frances Berry Argues for the ERA

In the years following the 1920 ratification of the 19th Amendment extending voting rights to women, the National Woman’s Party, the radical wing of the suffrage movement, advocated passage of a constitutional amendment to make discrimination based on gender illegal. The first Congressional hearing on the equal rights amendment (ERA) was held in 1923. Many female reformers opposed the amendment in fear that it would end protective labor and health legislation designed to aid female workers and poverty-stricken mothers. A major divide, often class-based, emerged among women’s groups. While the National Woman’s Party and groups representing business and professional women continued to push for an ERA, passage was unlikely until the 1960s, when the revived women’s movement, especially the National Organization for Women (NOW), made the ERA priority. The 1960s and 1970s saw important legislation enacted to address sex discrimination in employment and education—most prominently, the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, and Title IX of the 1972 Higher Education Act—and on March 22, 1972, Congress passed the ERA. The proposed amendment expired in 1982, however, with support from only 35 states—three short of the required 38 necessary for ratification. Strong grassroots opposition emerged in the southern and western sections of the country, led by anti-feminist activist Phyllis Schafly. Schlafly charged that the amendment would create a “unisex society” while weakening the family, maligning the homemaker, legitimizing homosexuality, and exposing girls to the military draft. In the following 1983 House committee hearing, Mary Frances Berry of the U.S. Commission on Civil Rights argued that the ERA was still necessary due to the lack of clear constitutional guidelines for court decisions and enforcement efforts regarding sex discrimination legislation.

TESTIMONY OF MARY FRANCES BERRY, COMMISSIONER, U.S. COMMISSION ON CIVIL RIGHTS . . .

Ms. BERRY. The Civil Rights Commission has, in fact, supported ERA. We supported the amendment as necessary for women under our jurisdiction that we got over sex discrimination first in 1972, the year ERA was passed, and we have repeatedly affirmed our support for the amendment.

We are not dissuaded because it is taking a lot of time to get ERA passed. If you look at the history, constitutional amendments, most of them, if they are substantive, take years to get passed. It does not bother me.

I would have preferred it if it had been ratified a long time ago, but that does not mean that we don’t need it because it is taking a long time. We see that the basic principle that ERA embodies is that the law must not treat men and women differently on the basis of gender alone.

The ERA, as we understand it, would not apply to private conduct that Government does not normally regulate. In other words, private personal relationships, for example, between men and women or decisions on the part of individuals that they would like to be homemakers or workers or whatever they would like to be, ERA has nothing to do with that. ERA applies only to action by Government and would bar sex discrimination in any law, policy, or practice involving governmental entities and institutions.

ERA, as we understand it, would apply to both men and women, and the law could not ignore individual characteristics and they would have to treat men and women as citizens and individuals having equal rights.

ERA would not require men and women to share restrooms or dormitories, according to our understanding. Only actions that violate the principle of equal rights would be prohibited.

Now, when one asks why you still need ERA—and I noted carefully that Mr. Gekas, for example, said that one of the things he wanted out of this hearing was whether, in fact, we still need it. What is the situation now? It seems clear to us in the employment area that he has mentioned and other witnesses have mentioned that women do continue to suffer economic inequality that could be addressed by ERA. We know that in 1981, women who worked full-time earned 59 cents for every dollar male full-time workers earned, and that this was a decrease, a decrease from the 64 cents women earned per dollar in 1955.

We did a study that we issued recently at the Commission on disadvantaged women and their households, and in that study, there is a lot of information about the significant employment barriers, including occupational segregation, wage inequities and discriminatory exclusion from high-wage jobs, that women, in fact, suffer.

Sex role stereotyping that shunts women disproportionately into lower paying jobs still exists, and there are many State and Federal laws that deprive women of employment opportunities under the “guise,” we know of protecting the weaker sex.

These laws probably could not withstand court challenges. If everybody went to court all over the country and challenged all the laws, and had the resources and time to do that, some of them would go down, but they remain on the books and may be tacitly enforced.

The other relationship between employment and the thing that discourages women sometimes is that when women do get educated or trained, they still find they are disadvantaged in terms of income that they get from employment. We found that an additional year of education gave women a wage increase in earnings that was only 40 percent of the increase it gave to men. And there is a lot of talk about the fact that wage disparities are caused by women being employed in jobs that paid low incomes.

The pink collar ghetto, or whatever the ghetto is that women are shuffled off into, is a factor, but it does not account for the entire discrepancy.

In a study we did on unemployment and underemployment among blacks, Hispanics, and women, we found that many women still receive less pay than men do for the same work or for similar work. And we found that there are high levels of many types of underemployment among women, especially among white non-Hispanic women.

We also found that black and Hispanic women, like males who are black or Hispanic, generally had higher levels of unemployment and underemployment than did white non-Hispanic men.

We are very concerned about this continuing problem of the poverty of women. All the statistics indicate that if matters keep going at the rate they are now, the poverty population would be composed solely of women and their children by about the year 2000, which is a frightening prospect to even think about.

We found in our study on disadvantaged women and their children that discrimination in training and employment constitutes a major impediment to financial security for women.

We have called attention to these problems and we have said that one of the problems is lack of enforcement. Another problem is that under the 14th amendment and the court decisions that have evolved, we have not gotten the kind of standard that would be used in the case of women that would make it more possible for more vigorous enforcement to happen more easily.

In education, the Commission has found that this is a significant area of continuing inequality. We have title IX which prohibits sex discrimination, but anybody who has paid any attention to what has been happening in Washington recently knows that title IX is not being enforced vigorously; that that is an understatement.

I will say it again, that it is not being enforced vigorously; that there are continuous efforts to narrow the scope of what that language means, to narrow it and narrow it until it practically means nothing. And so with ERA the courts would get a firm handle for deciding constitutional challenges to sex bias in public schools.

ERA, of course, would apply not only to institutions that got Federal funding but also to others where State action is involved and there is not any Federal funding.

We also documented sex discrimination in a lot of other areas including marital property, domestic relations law, social security, disability, pensions, the administration of justice and the military . . .

We believe that one reason sex discrimination persists is that we lack a firm constitutional basis for equal rights on the basis of gender.

Now, people who are opposed to ERA say, “Well, you have got the 14th amendment and that is all you need.” But the Supreme Court of the United States has stopped short of applying the same 14th amendment standards to sex discrimination that they do to race discrimination. And part of the reason why, Justice Powell says, is that there is no ERA, and that is why we don’t have to make sex a suspect class.

What he said is ratification would “resolve the substance of this precise question.” Of course, without it the result is a “catch-22.”

Women are told they don’t need ERA because they have the 14th amendment, but they can’t have the 14th amendment’s full protection because they don’t have ERA. So you are caught however you go.

As we have said before in the Commission on Civil Rights, the chief advantage of an ERA as opposed to other kinds of reforms is that it would provide stronger protection. And in the absence of a formal constitutional foundation for gender equality, a hostile legislature, we know, could wipe off all the antidiscrimination laws that are now on the books. So what we would do is just put women’s equality into the Constitution.

Of course, we could do it on a piecemeal basis. One argues every time a constitutional amendment is proposed in the country, you look at the history of it. Why don’t you do it State by State, one by one, and if you got all the States, then we would have it.

Well, the framers of the Constitution would not have put the means for getting a constitutional amendment in article 5, which provides for the Congress to adopt an amendment and send it out to the States, if they had not thought, based on the legislative history at the convention, that such a procedure on matters of national importance was absolutely necessary. We may not like it, but it has been proven to be absolutely necessary over time. . . .

Source: Congress, House, Committee on the Judiciary, Equal Rights Amendment: Hearings before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, House of Representatives, 98th Cong., 1st sess. on H.J. Res. 1, July 13, September 14, October 20, 26, and November 3, 1983, Serial No. 115 (Washington: U.S. Government Printing Office, 1990).