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 document submitted in 1984 to a House committee considering a new bill to enact the ERA, a male rights advocate assessed potential legal benefits men might receive due to its passage.
THE EFFECT OF THE EQUAL RIGHTS AMENDMENT ON MEN
by Robert J. Gray
Project Director, Men’s Rights/ERA Project
The proposed Equal Rights Amendment, when ratified, will affect men in a number of ways. This discussion deals with the legal benefits that men will obtain and with the mutual benefits that both men and women will gain in a society without discriminatory practices.
As in any discussion on the ERA, it must be remembered that the United States Supreme Court will be the final arbiter on the amendment’s meaning. However, a fairly accurate picture of the ERA’s effects can be gained through careful study of the discrimination faced by women and men in our society, and through study of Supreme Court decisions in those areas where sex discrimination occurs.
Legal Benefits for Men—Family Law
In recent years, there has been a movement towards gender-neutral laws in the divorce-related areas of child custody, alimony, and child support. In family law dealing with unwed fathers and paternity suits, there has been no movement towards gender-neutral laws.
Despite gender-neutral divorce laws, men still suffer discrimination in our nation’s family courts. This discrimination shows up in the often cited statistic which states that more than 90% of custody decisions grant mothers sole custody of the children. This discrimination is also responsible for the growing strength of father’s rights groups, which are committed to ending the sex discrimination in our divorce courts. . . .
The addition of the ERA to our Constitution will guarantee that men will be equal with women in all areas of family law. Thus, we can expect the Supreme Court to be called upon by fathers who feel that their rights are being ignored by our family courts.
The fact that our family courts grant sole custody to mothers in more than 90% of divorce cases needs careful investigation. Currently, most of our states require that custody be determined on the basis of the “best interests of the child.” Unfortunately, this concept is so vague that it differs from state to state. For example, some states include a presumption of joint custody within this “best interests” standard, while other states do not. A vague legal standard applied by judges whose thinking may be affected by outmoded sex-role stereotypes can lead to discriminatory awards that benefit neither parents nor children. . . .
The ERA will provide rights to unwed fathers who want to support their children both financially and emotionally. Currently, most states only care about financial support. The ERA will allow these fathers to sue for joint custody, sole custody, or visitation rights, and it will guarantee a decision that is not clouded by obsolete sex-role stereotypes. . . .
It is an unfortunate fact that persons involved in a unintended pregnancy are not always ready to accept the weighty responsibilities of parenthood. In the case of a woman, the United State Supreme Court decision on abortion (Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)) has made it illegal for a state to impose motherhood. The ERA will extend this decision and make it illegal for a state to impose fatherhood. It should be noted that a man saying “no” to fatherhood will not force the woman to obtain an abortion—she may place the child up for adoption, raise the child herself, or find a partner who wants to be a father.
Our current laws governing unwed parents and unintended pregnancies are far from gender-neutral. These laws permit women the options of abortion or adoption, but they subject men to various procedures to attempt to establish paternity.
A court decision, which extends the constitutional reasoning in Roe and applies it to men, would most likely permit the establishment of reasonable requirements on the procedure by which a man formally decides to accept or reject fatherhood. One reasonable requirement is to insist that an unwed father state his desire concerning fatherhood within a suitable time after he has learned of his situation. Such a requirement would add clarity and stability to the “unwed family.” Currently, an unwed father is often placed in or assumes a nebulous position with respect to his child. This cloudy relationship may last for many years; in Quilloin (38 S.Ct., at 552–553), it lasted eleven years. The ambiguity in the relationship between an unwed father and his child is in need of clarification. Children born out of wedlock need parents that want to accept the responsibilities of parenthood—forcing either sex to be a parent is not in the best interests of the child.
Legal Benefits for Men—Other than Family Law
The Military Draft.
Throughout the history of our nation, only men have had to bear the weighty responsibility of compulsory military service. There can be no doubt that the ERA will require women to share this responsibility with men. Currently, the legislative history of the ERA includes the rejections of every amendment that attempted to eliminate the ERA’s impact in military matters.
It is of historical interest that the ancient Greek philosopher Plato discussed the role of women in the military (The Republic, Book V). He argued that both sexes should be trained to fight and should be responsible for the defense of their homeland. . . .
Most automobile and life insurance policies require men of a given age to pay higher premiums than women of the same age. Conversely, most annuities from life insurance policies provide women with lower yearly benefits than men. The ERA will prohibit such sex discrimination. The insurance companies will have to base their premium and annuity schedules on factors other than sex.
The United States Supreme Court, in a 5–4 decision, (Mississippi University for Women v. Hogan, 102 S.Ct. 331 (1982)), ruled against sex discrimination in admission policies in a public university. The ERA will strengthen this decision by opening the doors of all schools, public and private, to both sexes.
The ERA will also open the curricula of some of our schools. Currently, a number of colleges and universities have women’s studies programs that study the problems that women have in our society. The ERA will require those colleges and universities that have women’s studies programs, but do not have men’s studies programs, to broaden their curricula to study the problems that men have in our society.
Mutual Benefits for Men and Women
The ERA will increase everyone’s freedom of choice within our society—no longer will a person suffer legal limitations or bear extra responsibilities because of gender. The ERA’s granting of benefits to one sex does not necessarily imply that the other sex will lose benefits. Often the benefits to one sex will flow back and benefit the other sex.
Career and Family.
The ERA will mandate that women be paid equally with men for comparable work. When women are paid fairly, the men married to these women will also benefit. These men will no longer bear the heavy responsibility of primary breadwinner. It will be much easier than it is at present for these men to take time to raise their children or to consider career changes.
The ERA will demand that men be treated equally with women in the area of childrearing leaves. Women married to men taking childrearing leaves will have more time to devote to their careers. Currently, if a mother can obtain a childrearing leave and the father cannot, the mother feels pressured to take time from her career to raise the child.
Equitable Divorce Settlements.
The ERA will demand that the inequities in our present divorce system be rectified. The current divorce situation, in which mothers usually receive sole custody, is hurting fathers, children, and mothers. Fathers are denied emotional companionship and the access needed to develop a close relationship with their children. Conversely, children are denied significant access to their father and their father’s relatives. Finally, sole custodial mothers are often expected to simultaneously pursue a career and raise their children. It is not surprising that much of the “feminization of poverty” is linked to single mothers. A single parent has little time or energy left to pursue a career.
Our current divorce system cries out for repair. As mentioned above in the discussion on the ERA’s effects on child custody, the Harvard Law Review (vol. 93, 1980, p. 1329–1331) has already published an article which contains an argument for a constitutional mandate providing for a presumption of joint custody in contested divorce cases. Studies on custody have shown that joint custody can handle the problems that seem to be endemic to the sole custody system. These problems include the growing emotional separation between children and the noncustodial parent, refusal by the custodial parent to honor visitation rights, and difficulty of collecting support payments from the noncustodial parent. Even in cases where joint custody is not a viable option, respect for the rights of all individuals involved in a divorce will help alleviate the problems of our current system.
During the first attempt to ratify the Equal Rights Amendment, the ERA was widely regarded as a “women’s amendment.” As this testimony demonstrates, the ERA also addresses the problems that men have been having in our society.
In the future, the Equal Rights Amendment will hopefully be viewed in the way it is written—“Equality of rights under the law shall not be denied or abridged by the United States or by any State on the account of sex . . .”—as an amendment that requires both sexes to be treated equally. For true equality between women and men will not develop until the problems of both sexes are seriously addressed.
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).