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Friday, 7 April 2017

Essay: The Failure of the 1972 Equal RIghts Amendment



Hi, everyone, this is an essay I composed for a survey on American History. It's about the success of Phyllis Schlafly, and the new right alliance over the odious and disturbing Equal Rights Amendment. It is written from a moderate position and little rhetoric given its academic aims, however, as you likely know, I have a strong stance on these issues. I will concede though that an ERA amendment might actually have/ be a good thing for western countries, because of the marriage laws as they stand (eg) Post Canada Divorce Act's 1986 revision), I think a legal order that caters to the needs of women needs to be built on real marriage not the nonsense of no-fault divorce; if it is constructed on such a foundation then women have no obligations to man and family. Regardless, enjoy. 


On March 22, 1972, the United States Congress passed the Equal Rights Amendment.[1] This began the ratification process; the ratification process itself ended in failure on June 30, 1982, despite it coming within fifteen states of success.[2] Furthermore, the amendment had overwhelming popular support, and it continued to have popular support in the years up to the failure of the amendment.[3] From this observation, several important questions emerge about how a movement, the success of which was taken as a given, managed to fail even after an extension of the ratification period by thirty-nine months in 1978.[4] Why and how did a concentrated defensive movement by opponents of the ERA obstruct the amendment and stop it from reaching ratification?
With this question in mind, a historical analysis of the campaign leads to the conclusion that the amendment, from its outset, once a coherent oppositional force emerged, was doomed to failure.  By carefully investigating the limits of the Pro-ERA campaign and its lack of both historical awareness and organizational capability in contrast to the anti-ERA campaign’s strengths in both organization and outreach relative to the limits and nature of the constitutional amendment process of the United States, the failure of the amendment takes on greater clarity.
The 1960’s and the 1970’s, were a time of unprecedented change in American social life.[5] This change impacted women in new and novel ways. The contraceptive pill, the legalization of abortion nationally in Roe V. Wade, and the publication of Betty Friedan’s the Feminine Mystique in 1963 (you can read chapter 2: Here to get a sense of the book) were all emblematic of the shifting social and gender relations in the United States.[6] Evidence for these changes is observable in the movement of American women, particularly educated women as opposed to the traditionally poor, minority, immigrant, and single women into the workforce in the period. By 1970, 3.1 million or 42% of American women over 16 were working, most were part of this new demographic compared to a relatively static percentage of 25% of women over 14 in the period between 1910 and 1940.[7] This shift gave rise to a reinvigorated feminist movement concentrated in educated and middle-class women;[8] as a result, women as a whole entered a debate about what it meant to be a woman in American society.
The debate between women centered on what was best for women, and whether women as whole were different by nature from men.[9] On these fault lines, women attempted to define what was in their collective best interest. If women did have a unique role in society, due to their nature and demeanor, then they ought not to pursue political or social goals on the same terms as men. However, if women were equal as individuals and in their nature then it meant full legal equality seemed to be the best option for women.[10] Evidence for this divide is found in the fact that campaigners both for and against the ERA agitated on behalf of different views about how best to realize the well-being of women, and women composed the principle activists on both sides of ratification debate.[11]       
From these initial changes in the social life of America, the newly coalescing feminist movement sought to achieve some form of substantial legal equality with men. This process began with the pursuit of piecemeal reforms throughout the states, but the initiators of this process and the organizations they formed, including NOW (National Organization for Women) in 1966 and ERAmerica later in 1976,[12] supported the amendment on the grounds that  proposing and passing legislation on an ad hoc basis in each individual state was insufficient for realizing their goals in a timely manner.[13] Given this frustration, these women proposed the Equal Rights Amendment of 1972 which stated ‘equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.’[14] This amendment passed quickly in congress with votes of 354 to 24 in the House of Representatives and 84 to 8 in the Senate; given the rapid legal changes proceeding in the country these activists felt confident in the success of the ratification process.[15] Opponents like North Carolina Senator Sam Ervin protested that the amendment “would abolish gender distinctions in military service, expose women to the draft, . . . force them into combat. . . ."rob" women of child support, alimony, and widow's benefits, and would require the use of mixed-gender prisons and "unisex toilets.’ But they were considered insignificant and quickly discredited.[16] Indeed activists felt so successful they did not assign resources for campaigns in the individual states.[17] This strategy seemed gratuitous as the ratification process raced along with 20 states ratifying in the three months and an additional ten within a year.[18]
Given these successes and the information gathered from national polls suggesting strong support for the amendment,[19] proponents of the amendment did not hesitate to make arguments in favour of legal equality in the public forum even on controversial issues such as women in the draft, access to abortion, homosexual marriage, and divorce settlements assuming women had come together on these issues.[20] However, state by state polling, especially in contentious jurisdictions like Illinois, told a different story. There 40% of women and 58% of men favoured the amendment in 1976. In non-ratifying states, the degree of support remained weak and quickly declined with women’s support falling to under 40% in 1978. [21] Many women opposed these reforms and there was confusion about the aims and goals of the feminist movement. When women and men were polled on support for the amendment in 1978 they found that 23 percent of the men and 26 percent of the women did not have an opinion.[22] Although resistance took time to coalesce, the public perception of the amendment was already uncertain.
In part, these complications and the failure to ratify the amendment in a timely matter stemmed from divisions within the leadership of the proponents. NOW and ERAmerica had different plans for achieving their goals, with traditional lobbying being the focus of ERAmerica, and NOW focusing on protest and civic agitation following the model of the civil rights activists to secure their goals.[23] In addition to the two major national organizations, radical women’s groups such as Redstockings, WITCH (Women’s International Terrorist Conspiracy from Hell), and New York Radical Women emerged, and this led to swift condemnation from Betty Friedan and NOW.[24] NOW itself received criticism for undermining traditional lobbying efforts in the states.[25] The Democratic Party itself further contributed to the disunity among proponents; the party experienced upheavals during the period between ‘New Democrats’ and the old Democrats.[26] For example, when Eugenia Chapman attempted to secure Democratic support from Chicago Mayor Richard Daley, political expediency trumped ideology as men like Daley worked to secure the re-election of favoured candidates in the face of challenges from newcomers, even if this happened at the expense of the ERA and supporters like Chapman.[27]
These harms could have potentially been limited if the proponents of the amendment provided positive arguments that affirmed the benefits women would receive.[28] Instead, they remained rather vague or overly optimistic about the outcomes of the amendment and often failed to articulate a case that seemed suitable to people in all demographics. To Historian Bruce Schulman, the 1977 National Women’s Conference in Houston exposed just how divorced from popular opinion the women’s movement had become.[29] High achieving women assembled for self-exaltation of future successes and goals producing the pamphlet What Women Want, which touched on all areas of life, and confirmed suspicions that the feminist mission involved a complete restructuring of the social and familial order; meanwhile the ERA had stalled.[30]
Given the defeat of Sam Ervin in the Senate, it seemed overwhelmingly ironic that Ervin would reach out to Illinois lawyer, Republican party activist, campaign organizer, and successful author and publisher Phyllis Schlafly.[31] Schlafly’s movement gave a voice to what political scientists Virginia Gray and Pamela Conover called, a new bourgeoise.  This new bourgeoise was composed of middle-class men and women who had recently ascended from the working-class and found themselves exposed to the social transformation of the 1960’s and 1970’s.[32] Schlafly’s STOP-ERA campaign not only organized these people, but served as the foundation for a new political movement that would title itself the New Right, and it emerged out of the alliance she fostered of secular, religious, and pro-family conservatives.[33] To feminist proponents of the amendment, Schlafly was a conundrum, not only because of her consummate political abilities but because she lived a traditional life and believed in traditional social roles in the home while also maintaining a high profile liberated career in law and politics.[34] Schlafly’s example seems to potentially show just how difficult it was for proponents to support the contention that traditional family roles were incompatible with the modern woman.
One significant advantage emerged in the STOP-ERA campaign; Schlafly and her supporters were better able to secure support for their cause because they were fighting a single-issue campaign. They fought against one motion and could counter it with diverse, and occasionally hyperbolic arguments about consequences, which to opponents of the amendment at least, seemed logically consistent with the wording of the legislation.[35] Schlafly and her supporters played off topics as diverse as the idea that the states would be forced to fund and endorse abortion, that states rights would be violated, that women would lose their traditional support in divorce, that women would become subject to the draft, and that private property itself was under attack.[36] Compared to the failure of the proponents of the amendment to argue effectively for the necessity of an amendment, the opponents’ rhetoric looked fierce and moved people by a much more compelling force: fear. This can be seen most notably in the plunging support for the amendment with a 30% decline between 1976 to 1980 with less than three-fifths of women supporting the motion in non-ratified states after the initiation of the STOP-ERA campaign.[37] The movement to halt the ERA looked more effective once a handful of states expressed interest in rescinding their support after initial votes for the amendment.[38]
Given the passion Schlafly and her STOP-ERA supporters had, it is unsurprising that they used novel means to organize and efficiently capitalized upon the plurality of structures available to them to reach out to people at the grassroots level while also securing the legislative votes necessary to prevent the passage of the amendment. This state by state campaign focused predominately on lobbying as well as securing the election of state legislators who supported the cause of the Schlafly alliance. They did this by capitalizing on the political action committees (PACS), which given recent changes to campaign funding legislation became an extremely effective means to gather funding in support of candidates.[39]
Meanwhile, they waged a ground campaign, going door to door. and working by mail order,[40] which became crucial given that media support for the STOP-ERA cause was marginal outside of conservative journal’s like the Phyllis Schlafly Report and the National Review.[41] This did not mean that the campaign of ERA opponents received no coverage, however, as news media by 1973 mentioned Schlafly in the majority of ERA reports and articles on the debate. Likewise, ERA opponents still received substantial coverage in women’s publications.[42] Meanwhile, the Viguerie Company, an engine of the conservative movement, demonstrated the power of direct mail when it managed to send over four million letters to conservatives and inundate one official with over 720, 000 letters.[43] In this way, Schlafly proved successful in reaching many middle-class homemakers and women concerned about the amendment. She did this in part by working with Church’s and other institutions as well ad hoc groups and national groups at the local level such as National Council of Catholic Women, Women Who Want to be Women, and the Family Preservation League, while leading the national campaign in a strictly hierarchical fashion.[44] In addition, through Christian associations such as Jerry Falwell’s Moral Majority, James Robinson’s Religious Roundtable, and Pat Robertson’s Christian voice, they could reach a subscriber base of over 560, 000 when coupled with the reach of the Schlafly Report (initial) 3000 subscribers and National Review they were able to contact a broad and motivated base.[45] This tied into another key advantage, the opponents of the amendment consistently demonstrated greater political knowledge on average and a greater readiness to vote in state and local campaigns.[46]
To understand the failure of the proponents of the Equal Rights Amendment one final observation is necessary; the difficulties of the proponents have been contrasted with the efficacious organizational methods of the New Right opponents of the amendment and this contrast exposes necessary consequences. Though the bottom up campaign waged by the Schlafly STOP-ERA movement was fierce and effective, there can be no doubt that it only showed itself as truly effective in the context of the ratification process itself. A constitutional amendment in the United States is a necessarily trying thing, as historian Elizabeth Perry makes clear. She cites the times to ratification for various amendments into the constitution studied by Mary Berry;[47] the amendments concerning prohibition, Women’s Suffrage, and slavery took 72, 108, and 57 years to pass successfully.[48] Meanwhile, one need only look at the arduous history of the 1923 Equal Rights Amendment proposed by Alice Paul to see that when constitutional challenges entered the public forum opposition would always be fierce and ratification difficult.[49]  Furthermore, states with high Mormon populations in the west Nevada, Arizona, and Utah, as well as the Democratic bastion composed of the former confederate states, had proved virtually impenetrable to prior amendments, and in the example of the 14th amendment success only came with circuitous methods.[50]
These issues would have been less burdensome if there had been plans for a national campaign in support of the ERA working on a state level, or if proponents had built up stable bases of support in individual states before asserting their cause at the national level,[51] but this was not the case. Instead, feminists and proponents of the amendment lobbied congress for the passage of an amendment without fully convincing the public of its necessity, and in being too optimistic about the prospects failed to recognize the gradual social shift taking place in reaction to the changes of the prior decade.[52] They failed to notice trends like the shift from moderate Methodist, Presbyterian, and Episcopalian Churches to new evangelic and fundamentalist Churches that saw explosions in their congregations over the same period.[53] Nor did they effectively rectify themselves to the historical difficulties intentionally placed in the amendment process, and their opponents who in only needing to secure 13 states against, had the strategic advantage from the outset.[54] The rise of the New Right and the conservative resurgence of the 1980’s under the leadership of Ronald Regan revealed the degree that pro-ERA activists misjudged the public mood and the complexities of ratification as a whole.[55] 



[1] David E Kyvig, "Historical Misunderstandings and the Defeat of the Equal Rights Amendment," The Public Historian 18, no. 1 (Winter, 1996): 45.
[2] Ibid., 45-46.
[3] Donald T Critchlow and Cynthia L. Stachecki, "The Equal Rights Amendment Reconsidered: Politics, Policy, and Social Mobilization in a Democracy," Journal of Policy History 20, no. 01 (January 2008): 162-163; Pamela J. Conover and Virginia Gray, Feminism and the New Right: Conflict over the American Family (New York: Praeger, 1983), 8.
[4] Kyvig, “Defeat of the Equal Rights Amendment,” 45.
[5] Philip Jenkins, A History of the United States, 3rd ed. (New York, N.Y: Palgrave Macmillan, 2007), 285; Bruce J. Schulman, The Seventies: the Great Shift in American Culture, Society, and Politics (Cambridge, MA: Da Capo Press, 2002) 11-12, 162-163; Conover and Gray, Feminism and the New Right, 3.
[6] Jenkins, A History of the United States, 284; Maldwyn A. Jones, The Limits of Liberty: American History, 1607-1980 (New York: Oxford University Press, 1983), 585.
[7] Jones, The Limits of Liberty, 284.
[8] Schulman, The Seventies, 162-163.
[9] Kyvig, “Defeat of the Equal Rights Amendment,” 52; Laura R. Woliver, "The Equal Rights Amendment & the Limits of Liberal Legal Reform," Polity 21, no. 1 (1988): 185; Elisabeth I. Perry, "Scholars Confront the ERA," Canadian Review of American Studies 18, no. 3 (October 1987): 395; Conover and Gray, Feminism and the New Right, 10.
[10] Conover and Gray, Feminism and the New Right, 10.
[11] Ibid., 9.
[12] Critchlow and Stachecki, "The Equal Rights Amendment Reconsidered,” 170; Jones, The Limits of Liberty, 585.
[13] Jones, The Limits of Liberty, 585-586
[14] Kyvig, “Defeat of the Equal Rights Amendment,” 45.
[15] Kyvig, “Defeat of the Equal Rights Amendment,” 51; Mary F. Berry, Why Era Failed: Politics, Women's Rights and the Amending Process of the Constitution (Bloomington, I.N: Indiana University Press, 1988), 63-64. It should be noted that Berry’s text reads passage in the house as 354/23 as opposed to 354/24. I was unable to identify the reason, or access the microforms of the congressional record, to identify the error. However, NOW lists the vote in the house as 354/24 "Chronology of the Equal Rights Amendment, 1923-1996," NOW.org, 2017, accessed March 18, 1017, http://now.org/resource/chronology-of-the-equal-rights-amendment-1923-1996/.
[16] Kyvig, “Defeat of the Equal Rights Amendment,” 51.
[17] Berry, Why Era Failed, 65.
[18] Kyvig, “Defeat of the Equal Rights Amendment,” 45.
[19] Critchlow and Stachecki, "The Equal Rights Amendment Reconsidered,” 162-163; Conover and Gray, Feminism and the New Right, 8.
[20] Perry, "Scholars Confront the ERA,” 397; Matilda Butler and William Paisley, "Equal Rights Coverage in Magazines, Summer 1976," Journalism & Mass Communication Quarterly 55, no. 1 (Spring, 1978): 158; Critchlow and Stachecki, "The Equal Rights Amendment Reconsidered,” 169.
[21] Critchlow and Stachecki, "The Equal Rights Amendment Reconsidered,” 158, 163.
[22] Ibid., 163.
[23] Critchlow and Stachecki, "The Equal Rights Amendment Reconsidered,” 159; Schulman, The Seventies, 164.
[24] Schulman, The Seventies, 164-165
[25] Critchlow and Stachecki, "The Equal Rights Amendment Reconsidered,” 170.
[26] Ibid., 162.
[27] Ibid., 162.
[28] Berry, Why Era Failed, 68; Perry, "Scholars Confront the ERA,” 395, 297.
[29] Schulman, The Seventies, 186.
[30] Schulman, The Seventies, 186-187.
[31] Kyvig, “Defeat of the Equal Rights Amendment,” 51; Critchlow and Stachecki, "The Equal Rights Amendment Reconsidered,” 165.
[32] Conover and Gray, Feminism and the New Right, 68-70
[33] Conover and Gray, Feminism and the New Right, 77; Schulman 187-188, 193, 201-202; Critchlow and Stachecki, "The Equal Rights Amendment Reconsidered,” 165.
[34] Schulman, The Seventies, 169.
[35] Critchlow and Stachecki, "The Equal Rights Amendment Reconsidered,” 166.
[36] Phyllis Schlafly, "How ERA Would Change Federal Laws," Phyllis Schlafly Report, (November 1981 Vol 15. No 4. November 1981) Accessed March 18, 2017, http://eagleforum.org/publications/psr/nov1981.html.
[37] Critchlow and Stachecki, "The Equal Rights Amendment Reconsidered,” 163.
[38] Kyvig, “Defeat of the Equal Rights Amendment,” 58.
[39] Conover and Gray, Feminism and the New Right, 91-92.
[40] Butler and Paisely, "Equal Rights Coverage in Magazines,” 158-159; Conover and Gray, Feminism and the New Right, 91.
[41] Critchlow and Stachecki, "The Equal Rights Amendment Reconsidered,” 165-166; Schulman, The Seventies, 195.
[42] Butler and Paisely, "Equal Rights Coverage in Magazines,” 159; Conover and Gray, Feminism and the New Right, 75.
[43] Schulman, The Seventies, 198.
[44] Critchlow and Stachecki, "The Equal Rights Amendment Reconsidered,” 165-166, 167; Perry, "Scholars Confront the ERA,” 398.
[45] Conover and Gray, Feminism and the New Right, 76.
[46] Critchlow and Stachecki, "The Equal Rights Amendment Reconsidered,” 163-164.
[47] Berry, Why Era Failed, 2-3, 56; Perry, "Scholars Confront the ERA,” 396.
[48] Perry, "Scholars Confront the ERA,” 396.
[49] Kyvig, “Defeat of the Equal Rights Amendment,” 49.
[50] Berry, Why Era Failed, 9; Critchlow and Stachecki, "The Equal Rights Amendment Reconsidered,” 160; Schulman, The Seventies, 170.
[51] Berry, Why Era Failed, 64.
[52] Kyvig, “Defeat of the Equal Rights Amendment,” 52, 62; Perry, "Scholars Confront the ERA,” 394, 397.
[53] Jenkins, A History of the United States, 288-289.
[54] Woliver, "The Equal Rights Amendment & the Limits of Liberal Legal Reform,” 194.
[55] Schulman, The Seventies, 187-188; Jenkins, A History of the United States, 288-289.