“I am woman, hear me roar
In numbers too big to ignore”
Helen Reddy, “I Am Woman” (1972 song)
The Equal Rights Amendment (ERA) is in limbo as it enters its second half-century at the national level, and it probably will not be moving out of that state of suspended animation for quite a while. But that inertia does not impede its progression toward potential state-level adoption as an amendment to the Minnesota Constitution.
The national measure simply reads: “Equal rights under the law shall not be denied or abridged … on account of sex.” If adopted, it would become the 28th Amendment to the U.S. Constitution, the first addition to that instrument since 1992. The proposition was initially proposed 100 years ago and approved by Congress 51 years ago on March 22, 1972, for submission to the states, where approval of three-fourths of them, 38, is required for ratification.
The proposition seemed to be on a fast track to adoption as seven states approved it within the first week and 12 others followed within the first few months before slowing down and then spinning its proverbial wheels for decades.
Minnesota, as is its wont, was among the first 26 states to adopt the ERA, emulating its posture in the forefront of constitutional amendments as the very first to jump on the bandwagon in 1970 for the 26th amendment, lowering the voting age to 18.
The approval of the ERA by both houses of Congress and dissemination to the states for ratification occurred in the infancy of the feminist movement, one of whose champions passed away last week, former U.S. Rep. Patricia Schroeder of Colorado, who died at age 82.
Elected in 1972, eight months after the ERA made it through Congress, the University of Minnesota graduate and Harvard-educated attorney was a strong and vocal advocate for many women-oriented causes during her 22 years in the nation’s capital. She was one of only 16 women in the House of Representatives when she took office, a number that has swelled to 125 today. There are 25 women in the U.S. Senate today, including both Amy Klobuchar and Tina Smith of Minnesota, a state where 72 women currently serve in the Legislature, comprising about 36% of the state’s solons.
Schroeder’s passing occurred in the midst of Women’s History Month, highlighted by International Women’s Day, which was observed Wednesday, March 8. That commemoration provides an opportune occasion to review the historical peaks and valleys of the ERA, both nationally and in Minnesota.
As the ERA was advancing fast five-plus decades ago, a not-so-funny thing happened on the way to the National Archives in the nation’s capital, the repository of constitutional amendment. It stalled. While 35 states had adopted and approved it by 1975, no other state did so for several years. As a result, the seven-year deadline for adoption, set forth in the original proposition was extended in 1979 by an additional 39 months in hopes of acquiring three more state approvals.
But that did not happen until 2017-2020, when three more states to jumped on the bandwagon. In the meantime, five states changed their legislative minds and rescinded their earlier approvals: Nebraska, Idaho, Tennessee, South Dakota, and Kentucky. That left the status of the ERA in disarray and dispute.
Not surprisingly, litigation was looming as all of these developments occurred. Litigation seeking certification of ratification by 38 states competed with a lawsuit seeking a declaration that late-blooming ratifications were invalid.
A pair of lawsuits were in the forefront, one in the 1st Circuit and the other in the District of Columbia. Both of them turned out badly for the ERA proponents. The 1st Circuit upheld a lower court ruling throwing out a lawsuit on grounds of lack of standing in Equal Means Equal v. Ferriero, 3 F. 4th 25 (2nd Cir. 2021). But proponents still hope for a better result in the D.C. case, which is pending before that appellate tribunal after District Court Judge Rudolph Contreras, an appointee of President Barack Obama, dismissed it both on standing grounds and on the merits, deeming the latest ratifications “too late to count” because the initial ratification deadline had “expired long ago” in Virginia v. Ferriero, 525 F. Supp. 826 (D.D. C. 2021).
Meanwhile, back here in Minnesota, the effort to amend the state constitution by adopting a similar provision barring discrimination based on “gender” has been booking with progress for a number of years, spearheaded by an organization called ERA Minnesota and individuals seeking to make Minnesota join 26 other states that have their own state constitutional mini-ERAs.
Prior efforts, which were stymied by Republican opposition, may reappear this year with both legislative chambers now under Democrats’ control. The two companion measures making their ways through the Senate and House, S.F. 37 and H.F. 173, go well beyond mere sex discrimination and extend to disparate treatment on a wide variety of grounds paralleling most of the protected categories in the state Human Rights Act, Minn. Stat. 363.01, et seq., including sexual orientation and gender identity, but noticeably not religion.
If passed by majorities in each chamber, the measure would be presented to the voters for approval, which requires 50% plus one of those casting ballots in all races.
It is difficult to pass constitutional law in this state. Although this one would seem to breeze through, it would face some head winds. Historically, barely half of the amendments of the constitution that have been on the ballot have been approved, 122 of 213. The last two efforts to change the state constitution both failed in 2012 — a proposition to allow the Legislature to adopt a voter identification statute, as well as one to prohibit same-sex marriage.
Both of them were promoted by conservative interests, whereas the ERA attracts most of its support from more liberal sectors, giving it a better chance of passage by the 50% plus one necessary for its adoption.
If it passed, Minnesota would join the slight majority of states that have adopted similar measures, part of a long struggle dating back 80 years. In 1943, two decades after the concept initially cropped up, Alice Paul, a veteran leader of the Women’s Suffrage Movement, proposed a national ERA. But it took nearly 30 years for it to be approved by Congress — and more than five decades later, the suffragists’ aspiration is still unfulfilled.
If it comes to fruition at the federal level or here in the state, ERA advocates will be able to look back a century and explain that they “have come a long way,” to paraphrase a slogan for a tobacco company, Virginia Slims, and its chic cigarette products back in the day shortly before Congress approved the measure.
Another song by the late Australian chanteuse, Helen Reddy, who passed away in 2020, resonates with many of the frustrated ERA seekers: It was her last best seller way back in 1975: “Ain’t No Way to Treat a Lady.”
Other top-selling Helen Reddy songs
- Angie Baby (1974)
- You and Me Against the World (1974)
- Delta Dawn (1973)
- Peaceful (1973)
Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.
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