It’s Time for a New Equal Rights Amendment
By Dr. Kristi Winters
It is time for a new Equal Rights Amendment in America. This wouldn’t be your mother’s Equal Rights Amendment. America has changed a lot since 1972. Our values have changed a lot since 1972. Our families have changed a lot since 1972 and that is why we need a new Equal Rights Amendment for the 21st century.
In my view, it is time to rewrite the Equal Rights Amendment to include sexual orientation to truly protect all American men and women from discrimination. Only a small addition in the wording is needed:
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex or sexual orientation.
When I get to thinking about it, there are many good reasons for a New ERA. In this article I will only focus on three. First I will look at a few of the arguments offered by Phyllis Schlafly; a key actor in the defeat of the original ERA. I then compare that out-dated worldview to three examples of why a new ERA could help working women, same-sex couples and men’s parental leave.
The Equal Rights Amendment debated in the 1970s was (by comparison) a narrow argument that contested the roles of heterosexual women and men in the public and private spheres. I use the views of Phyllis Schlafly to represent the attitudes that were advanced to defeat the original ERA. On marriage she wrote: ‘Marriage and motherhood give a woman new identity and the opportunity for all-round fulfillment as a woman’ (Schlafly 2003, p. 196). How should women act within marriage and motherhood? According to Schlafly, ‘Society simply has not invented a better way of raising children than the traditional family…[The] division of labor is cost efficient, the environment is healthy, and the children thrive on the ‘object constancy’ of the mother’ (ibid, p. 207). She is dismissive of women’s roles outside the home. “After twenty years…a mother can see the results of her own handiwork in the good citizen she has produced and trained. After twenty years…in the business world, you are lucky if you have a good watch to show for your efforts” (Schlafly 1977, p. 52).
Mrs. Schlafly’s fantasy world where everyone is heterosexual, fertile, and where men earn enough money to feed, house and clothe themselves, their wives and all their children never existed in America, but it bears even less resemblance to the America of today than the 1960s and 1970s.
Let’s consider the reality of people’s lived experiences. The most obvious difference between Mrs. Schlafly’s notion of marriage and today is the movement for marriage equality. The Supreme Court of the United States announced on June 26 that denying same sex couples the same federal benefits as their opposite sex counterparts was ‘treating those persons as living in marriages less respected than others’. They concluded that the Defense of Marriage Act was ‘in violation of the Fifth Amendment’.
Advocates of marriage equality now turn their attention to the state-by-state campaigns to alter state legislation, court cases demanding equal treatment under the law. It seems to me that a constitutional amendment enshrining those rights in the form of a New ERA should be part of that effort.
Another stark difference to the fantasy world of Mrs. Schlafly is found in the breadwinngin role that increasing numbers of American women are taking up in the home. According to Pew Research Center, US Census Bureau data showed that in 2011 40 percent of leading or sole breadwinners in American households were women. That is up from only 11 percent in 1960 (Langfield 2013). Yet despite the fact that women are equally or better educated than their husbands, most men still earn more than their spouses, the Pew study noted. I would argue that part of that wage gap is the result of not having constitutional protections against sexual discrimination.
With a New Equal Rights Amendment we could protect women’s wages from the 2011 views of Supreme Court Justice Antonin Scalia who said: ‘Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws’ (Terkel 2011).
I agree with Justice Scalia. If the Constitution has a blind spot for the protections of Americans based on their sex or sexual orientation then let’s change it!
Finally I want to address the men’s rights and the new ERA as regards family leave policies. According to a Boston College study, less than 1 percent of American men take significant amounts of parental leave. It also found that the more time fathers spent with their children the more confident they felt as parents. American men clearly experience an invisible form of sexual discrimination when they seek to take up a caring role rather than the role of earner.
Anecdotally, I found an article where an employer details a male employee who had taken off time for family leave, during which time the company held performance reviews. The employer wrote, ‘Bonuses are based on these reviews, and some of the management team feel like he doesn't deserve a bonus because of taking 3 months off. Do we have to give him a review? Can we skip giving him a bonus?’
The answer that came back was loud and forceful: ‘Simple answer? No. You cannot withhold a bonus because someone took legally allowable time off. I suspect that if this was a woman taking maternity leave, the conversation about withholding the bonus would have never even come up’ (Lucas 2011). The author’s response was right, of course. But shouldn’t our goal for American fathers be that no manager or employer even considering financially punishing a man for spending time in that most vital of all men’s roles in life: being a father?
For these reason, and for far more, all Americans need a new Equal Rights Amendment. Rather than pitting men against women, this new Equal Rights Amendment debate can be about eliminating sex and sexual orientation as a basis for discrimination for all Americans: straight, lesbian, gay, bisexual and transgendered. It will protect working moms, stay-at-home dads, and every form of family we have in America.
That is why I call upon U.S. Senator Tammy Baldwin to author and introduce a new Equal Rights Amendment. As the first openly gay woman elected to the Senate she embodies the presence of women in traditionally male spaces. Further her presence upends the heteronormativity that dominates the framing of work-life balance issues. I hope that she and Senator Robert Menendez, who introduced the old ERA as S. J. Res 10 on March 5th of this year, will draft new language that will restart an old debate from a completely different perspective.
Please lend your support by signing and sharing the petition calling on Senators Tammy Baldwin and Robert Menendez to introduce a new Equal Rights Amendment for the 21st century.
Langfield, Amy. 2013. ‘Pew Study Shows Women Leading Breadwinners in 40 Percent of Households’ The Daily Beast. Retrieved from: http://www.thedailybeast.com/articles/2013/05/29/pew-study-shows-women-leading-breadwinners-in-40-percent-of-households.html
Lucas, Suzanne. 2011. ‘Will paternity leave hurt your career?’ CBS Money Watch. Retrieved from: http://www.cbsnews.com/8301-505125_162-57322597/will-paternity-leave-hurt-your-career/
Schlafly, Phyllis. 1977. The Power of the Positive Woman. New York: Arlington House Publishers.
Schlafly, Phyllis. 2003. Feminist Fantasies. Texas: Spence Publishing Company.
Terkel, Amanda. 2011.‘Scalia: Women Don't Have Constitutional Protection Against Discrimination’ The Huffington Post. Retrieved from: http://www.huffingtonpost.com/2011/01/03/scalia-women-discrimination-constitution_n_803813.html
This article was edited on 05 September 2013.