WEBVTT - Push to Revive the Equal Rights Amendment 0:00:00.520 --> 0:00:05.720 You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:05.920 --> 0:00:08.800 The Equal Rights Amendment has been a work in progress 0:00:08.840 --> 0:00:12.080 for nearly a century, and it's back in the spotlight again. 0:00:12.440 --> 0:00:16.040 Last month, Virginia voted to ratify the amendment, becoming the 0:00:16.120 --> 0:00:19.560 thirty eight and final state needed, and today the House 0:00:19.560 --> 0:00:23.279 passed a resolution to eliminate a n two deadline for 0:00:23.360 --> 0:00:27.120 states to ratify the e r A. Two cheers on 0:00:27.160 --> 0:00:31.000 this vote. The yea's are two hundred and thirty two. 0:00:31.440 --> 0:00:35.080 The names are one hundred and eighty three. The joint 0:00:35.159 --> 0:00:41.320 resolution is past. The sponsor of the bill, Representative Jackie 0:00:41.400 --> 0:00:45.600 Spear of California, said, there's no deadline for equality. Women 0:00:46.240 --> 0:00:49.560 want to be equal, and we want it in the Constitution. 0:00:51.520 --> 0:00:53.960 I am equal on this House floor with all of 0:00:54.000 --> 0:00:56.680 my male colleagues, but when I walk out, I have 0:00:56.880 --> 0:01:01.440 fewer rights and protections than them. I rise today because 0:01:01.440 --> 0:01:05.320 the women of America are done being second class citizens. 0:01:05.680 --> 0:01:08.640 We are done being paid less for our work, done 0:01:08.680 --> 0:01:13.319 being violated with impunity, done being discriminated against for our pregnancies, 0:01:13.600 --> 0:01:17.880 Done being discriminated against simply because we are women. The 0:01:17.959 --> 0:01:21.080 e R A is about equality. My guest is Julie Sook, 0:01:21.280 --> 0:01:24.560 a professor of sociology and dean for the Master's Programs 0:01:24.560 --> 0:01:27.880 at the City University of New York. So Julie, explain 0:01:28.080 --> 0:01:30.560 what the e r A would do. So, the e 0:01:30.720 --> 0:01:32.600 R A would add an amendment to the U s 0:01:32.640 --> 0:01:37.440 Constitution that guarantees equality of rights under the law without 0:01:37.600 --> 0:01:41.039 denial or abridgement on account of sex. And it's long 0:01:41.080 --> 0:01:44.919 been understood as an amendment that would grant equal citizenship 0:01:45.000 --> 0:01:49.559 status to women. So that's just fundamentally what it would 0:01:49.600 --> 0:01:52.480 actually do. And then there's this deeper question of what 0:01:52.520 --> 0:01:55.600 would it actually change about the law that we have 0:01:55.800 --> 0:01:58.240 now and the world that we inhabit, And I think 0:01:58.280 --> 0:02:01.320 that's a deeper question. Virginia, you was the thirty eight 0:02:01.520 --> 0:02:05.120 and final state needed for ratifying the e r A, 0:02:05.400 --> 0:02:08.080 but it was a little late in doing that. So 0:02:08.200 --> 0:02:12.400 explain the situation. So the Equal Rights Amendment was actually 0:02:12.440 --> 0:02:16.200 adopted by Congress in nineteen seventy two. It was drafted 0:02:16.200 --> 0:02:19.520 and introduced for about fifty years before nineteen seventy two. 0:02:19.600 --> 0:02:23.160 But the Constitution says that both houses of Congress have 0:02:23.240 --> 0:02:26.400 to adopt an amendment by a two thirds majority. In 0:02:26.440 --> 0:02:29.400 each House before it goes to the states for ratification, 0:02:29.639 --> 0:02:33.400 and so the Congress did not adopted until nineteen seventy two, 0:02:33.639 --> 0:02:35.440 and when it did that, it put a seven year 0:02:35.520 --> 0:02:38.840 deadline on ratification by the states. By the time you 0:02:38.880 --> 0:02:42.640 got to nineteen seventy seven, thirty five states had ratified, 0:02:43.160 --> 0:02:46.880 and currently you need thirty eight states in order to 0:02:47.040 --> 0:02:50.359 constitute the three fourths of the states that Article five 0:02:50.400 --> 0:02:53.760 of the Constitution requires. So the problem was that by 0:02:53.960 --> 0:02:57.880 nineteen seventy seven, which was about five years in, there 0:02:57.880 --> 0:03:02.040 were only thirty five ratifications, and Congress got worried rightly 0:03:02.200 --> 0:03:05.120 that they would not get to thirty eight by the deadline. 0:03:05.120 --> 0:03:07.880 So they extended the deadline once, and they extended it 0:03:07.960 --> 0:03:12.880 to two but the three ratifications that they were waiting 0:03:12.919 --> 0:03:16.280 for did not come in by night two, and so 0:03:16.680 --> 0:03:20.960 the e r A was long presumed dead after ninety two, 0:03:21.320 --> 0:03:26.480 but very interestingly, some states started ratifying it again in seventeen. 0:03:26.680 --> 0:03:31.920 Nevada ratified in seventeen, Illinois ratified in eighteen, and Virginia 0:03:32.160 --> 0:03:35.200 ratified it. So now we're at the magic number, which 0:03:35.240 --> 0:03:38.520 is thirty eight. But there remains a legal and political 0:03:38.600 --> 0:03:41.840 question as to whether or not those three states that 0:03:42.000 --> 0:03:46.120 ratified after the deadline should be counted. There are dueling 0:03:46.280 --> 0:03:49.680 lawsuits by states. Let's start with the three states that 0:03:49.840 --> 0:03:54.000 passed the e r A in ten, eighteen, and nineteen 0:03:54.160 --> 0:03:58.160 who are suing the national archivists. Virginia, Nevada, and Illinois 0:03:58.160 --> 0:04:02.160 are the three states that ratified in the twenty one century, 0:04:02.280 --> 0:04:04.880 and they are claiming in the lawsuit that the e 0:04:05.080 --> 0:04:09.200 r A should be recognized as part of the Constitution now. 0:04:09.680 --> 0:04:12.720 So they're suing the Archivist of the United States demanding 0:04:12.760 --> 0:04:15.320 that he add the e r A to the Constitution 0:04:15.400 --> 0:04:20.560 now on the theory that the deadline has no legal effect. 0:04:21.440 --> 0:04:24.680 And so their legal theory is that because Article five 0:04:24.800 --> 0:04:29.400 does not mention any deadlines, the Equal Rights Amendment has 0:04:29.600 --> 0:04:33.279 met the requirements that are actually mentioned in the text 0:04:33.320 --> 0:04:36.520 of the Constitution at Article five, which is two thirds 0:04:36.560 --> 0:04:40.240 of Congress in each house and three fourths of the 0:04:40.279 --> 0:04:44.000 states ratifying. So that is the argument that is being 0:04:44.279 --> 0:04:47.440 put forth there. They noted that the last amendment to 0:04:47.520 --> 0:04:51.440 be added in took more than two years to be 0:04:51.520 --> 0:04:55.120 ratified by thirty eight states. Yes, so that amendment was 0:04:55.160 --> 0:04:59.280 actually written by founding father James Madison himself, and it 0:04:59.320 --> 0:05:01.960 was proposed. It was adopted by both houses of Congress 0:05:01.960 --> 0:05:05.760 in seventeen eighty nine along with the original Bill of Rights, 0:05:05.760 --> 0:05:08.960 but they didn't get enough states to ratify it in 0:05:09.040 --> 0:05:13.160 the eighteenth or nineteenth centuries, and then there was a 0:05:13.200 --> 0:05:17.800 movement that began ratifications all over again in the nineteen eighties, 0:05:17.920 --> 0:05:22.200 and they finally reached thirty eight ratifications in nineteen. The 0:05:22.320 --> 0:05:26.760 Justice Department's Office of Legal Council issued an opinion last 0:05:26.839 --> 0:05:31.160 month that told the National Archives it should not certify 0:05:31.320 --> 0:05:35.040 the e r A as they amendment tell us about 0:05:35.120 --> 0:05:39.240 that opinion. That opinion says, the legal opinion taken by 0:05:39.240 --> 0:05:42.400 the Justice Department is that the e r A is 0:05:42.440 --> 0:05:46.120 no longer open to ratification because of the deadline that 0:05:46.279 --> 0:05:51.760 lapsed in two and therefore the three states that ratified 0:05:51.800 --> 0:05:55.880 after that deadline should not be counted as ratified states. 0:05:55.960 --> 0:05:58.960 And therefore, if the e r A is going to 0:05:59.040 --> 0:06:02.000 be made into an amendment, Congress would have to go 0:06:02.080 --> 0:06:05.239 back to square one in passing it all over again 0:06:05.320 --> 0:06:08.320 by two thirds majority in both houses, and then you 0:06:08.440 --> 0:06:10.920 have to start the ratification process by the states all 0:06:10.920 --> 0:06:13.800 over again. So that is the Justice Department's position. It's 0:06:13.800 --> 0:06:17.200 a position with which, obviously to the three states that 0:06:17.240 --> 0:06:21.120 have ratified recently disagree, and that's the basis of their lawsuits. 0:06:21.440 --> 0:06:24.960 To my mind, the one question that remains is whether 0:06:25.120 --> 0:06:28.440 or not Congress has the power to put deadlines in 0:06:28.920 --> 0:06:32.839 and also to extend deadlines or remove deadlines under the Constitution. 0:06:33.080 --> 0:06:35.440 And I believe that Congress actually does have the power 0:06:35.800 --> 0:06:39.159 to control the ratification process, and I think it's that 0:06:39.279 --> 0:06:42.960 power that may give Congress the power to impose deadlines 0:06:43.279 --> 0:06:46.440 that would also give Congress the ability to remove a deadline. 0:06:46.839 --> 0:06:52.280 You mentioned legal and political reasons. Is the Justice Department's 0:06:52.400 --> 0:06:57.080 position more legal or political? Could a Justice Department under 0:06:57.320 --> 0:07:01.440 another president role differently, Yes, So I think whether it's 0:07:01.520 --> 0:07:05.800 legal or political, I believe that there are different reasonable 0:07:05.839 --> 0:07:09.479 positions that could be taken on this question, whether by 0:07:09.680 --> 0:07:14.080 a future Justice Department or even by a judge. So 0:07:14.360 --> 0:07:18.200 the Justice Department's position is that the deadline was valid 0:07:18.520 --> 0:07:21.920 and that it passed. And they've also taken the view 0:07:21.960 --> 0:07:25.800 that once a deadline passes, Congress is without power to 0:07:25.920 --> 0:07:28.960 change the deadline after it has passed. And I think 0:07:29.000 --> 0:07:31.600 that's the question on which there is a lot of 0:07:31.640 --> 0:07:36.800 reasonable disagreement. That is, Congress actually extended the deadline once already. 0:07:36.920 --> 0:07:42.720 Of course, that deadline extension happened in before the deadline passed. 0:07:43.160 --> 0:07:45.560 So it's this question of timing, and I don't think 0:07:45.560 --> 0:07:49.120 that the Constitution or even some of the precedents about 0:07:49.360 --> 0:07:55.440 deadlines on amendments offer a clear answer. Let's talk about 0:07:55.560 --> 0:08:00.000 the e r A itself and the arguments for and again, 0:08:00.800 --> 0:08:05.440 so what do advocates of the e r A say 0:08:05.480 --> 0:08:09.000 it will do. What are the implications of it? Well, 0:08:09.080 --> 0:08:13.080 I think the advocates fundamentally, I think it's important that 0:08:13.160 --> 0:08:19.640 a constitution recognize sex equality as a foundational principle in 0:08:20.120 --> 0:08:24.840 this nation's foundational document. I think that's the most important argument. 0:08:25.280 --> 0:08:29.040 And it's a fact that most constitutions around the world, 0:08:29.600 --> 0:08:33.520 and every constitution written after World War Two has language 0:08:33.520 --> 0:08:38.840 in it that explicitly speaks to sex equality or equality 0:08:38.880 --> 0:08:42.480 between women and men. And so that's something that I 0:08:42.520 --> 0:08:46.760 think that's extremely important. And there are many different things 0:08:46.800 --> 0:08:49.280 that it might do legally. One thing that it will 0:08:49.320 --> 0:08:54.360 do legally is prohibit discrimination on account of sex. Part 0:08:54.400 --> 0:08:57.760 of the disagreement as to whether that's really necessary in 0:08:57.800 --> 0:09:00.800 the U s Constitution, right now is that the fourteenth 0:09:00.800 --> 0:09:04.440 Amendment of the U. S Constitution, adopted after the Civil War, 0:09:05.280 --> 0:09:09.040 has an equal protection clause in it. It doesn't say 0:09:09.080 --> 0:09:13.760 anything about women or about gender or sex. But since 0:09:13.800 --> 0:09:18.200 the nineteen seventies, the Supreme Court has said that the 0:09:18.240 --> 0:09:22.800 Fourteenth Amendment prohibits sex discrimination. Even if you take the 0:09:22.880 --> 0:09:25.000 view that it does that there seems to be no 0:09:25.160 --> 0:09:30.120 harm in adding an amendment that also mentioned sex. I 0:09:30.160 --> 0:09:32.400 agree with you on that. I don't think there's any 0:09:32.400 --> 0:09:34.440 harm to it, and in fact, I would argue that 0:09:34.520 --> 0:09:38.600 it's also necessary to do it. And here's why. For 0:09:38.679 --> 0:09:42.800 a long time, people tried to bring lawsuits before judges 0:09:42.840 --> 0:09:45.520 and that eventually went up to the Supreme Court that 0:09:45.720 --> 0:09:50.640 challenged sex discrimination, and the courts said, but the Fourteenth 0:09:50.679 --> 0:09:54.400 Amendment did not prohibit sex discrimination in those cases. And 0:09:54.440 --> 0:09:57.920 they really just changed what they were doing in a 0:09:58.000 --> 0:10:00.960 huge way in the n seventies. And it wasn't the 0:10:01.000 --> 0:10:05.280 coincidence that the Supreme Court started recognizing sex discrimination as 0:10:05.280 --> 0:10:08.839 a constitutional problem at the very moment that the e r. 0:10:08.920 --> 0:10:13.280 A was gaining political traction in the House of Representatives. 0:10:13.480 --> 0:10:16.760 Was after the House of Representatives voted by an overwhelming 0:10:16.800 --> 0:10:20.000 majority to adopt the r A, and we were waiting 0:10:20.040 --> 0:10:22.440 for the Senate to act, but at that moment, the 0:10:22.480 --> 0:10:25.640 Supreme Court decided Read versus Read, which is the first 0:10:25.720 --> 0:10:29.240 case that says that sex classifications in the law should 0:10:29.280 --> 0:10:32.520 be scrutinized under the equal protection class of the Fourteenth Amendment. 0:10:32.760 --> 0:10:34.520 So I think one of the things that the the 0:10:34.760 --> 0:10:37.679 r A would do that's very important is to recognize 0:10:37.920 --> 0:10:40.000 the work that the e r A has already done 0:10:40.120 --> 0:10:42.640 to change the Constitution. And a lot of that work 0:10:42.679 --> 0:10:45.440 has been done by women as constitution makers. There were 0:10:45.440 --> 0:10:49.560 women in Congress who advocated fiercely for the Equal Rights 0:10:49.600 --> 0:10:52.520 Amendment against a lot of opposition, uh, and then there 0:10:52.520 --> 0:10:56.440 were women who advocated in those Supreme Court cases like 0:10:56.520 --> 0:11:00.880 Read versus Read to recognize sex discrimination as a principle 0:11:01.160 --> 0:11:04.480 under the Fourteenth Amendment. And I think that work has 0:11:04.559 --> 0:11:08.280 gone kind of invisible and unrecognized in the text of 0:11:08.280 --> 0:11:11.360 our constitution, and the e r A is really needed 0:11:11.760 --> 0:11:16.320 to acknowledge the contributions of women as constitution makers and 0:11:16.360 --> 0:11:19.400 acknowledge the process by which sex equality has become an 0:11:19.400 --> 0:11:23.680 important constitutional value. So it will have symbolic value as 0:11:23.679 --> 0:11:26.680 well as legal value. Right and I think it's important 0:11:26.679 --> 0:11:30.280 to say symbolic as well as legal, not merely symbolic, 0:11:30.760 --> 0:11:34.200 because a story that I've just told with recognizing things 0:11:34.200 --> 0:11:36.480 that have already happened, I don't think of that as 0:11:36.520 --> 0:11:39.880 merely symbolic. I think that is actually legal. That is, 0:11:39.920 --> 0:11:44.240 we're acknowledging something that has changed, and we're recognizing the 0:11:44.320 --> 0:11:47.200 sources of that authority in the law. And I think 0:11:47.520 --> 0:11:51.480 doing that is very important for creating the legal conditions 0:11:51.520 --> 0:11:55.880 by which other important legal change can happen. One argument 0:11:55.880 --> 0:11:58.400 of opponents of the e r A is that it 0:11:58.400 --> 0:12:02.840 would quash state a board action restrictions. Is that the case, well, 0:12:03.040 --> 0:12:06.760 the Equal Rights Amendment says equality of rights under the 0:12:06.880 --> 0:12:09.800 law shall not be denied or abridged by the United 0:12:09.840 --> 0:12:12.960 States or any state on account of sex, and so 0:12:13.040 --> 0:12:15.120 the question would come up as to whether or not 0:12:15.240 --> 0:12:19.600 there are some abortion restrictions that amount to a denial 0:12:19.679 --> 0:12:23.520 of equal rights on account of sex. And I don't 0:12:23.559 --> 0:12:27.319 think that you can answer the question about every single 0:12:27.360 --> 0:12:32.280 abortion regulation that exists. But if there exists some abortion 0:12:32.320 --> 0:12:37.240 regulations that are based on gender stereotypes and uh work 0:12:37.360 --> 0:12:41.040 in a manner that actually amount to discrimination against women, 0:12:41.400 --> 0:12:44.280 then I think there is an argument that the Equal 0:12:44.360 --> 0:12:48.920 Rights Amendment is incompatible with some abortion restrictions. I do 0:12:49.120 --> 0:12:51.559 think that the debate has gotten a little confused because 0:12:51.600 --> 0:12:54.400 some of the opponents of the e r A suggests 0:12:54.440 --> 0:12:59.240 that every possible abortion regulation you could imagine would become 0:12:59.600 --> 0:13:02.880 invalid it, and I don't think that is true. But 0:13:03.200 --> 0:13:06.320 at the same time, I think it's important to recognize 0:13:06.520 --> 0:13:11.719 that reproductive justice is linked in important ways to equality 0:13:11.760 --> 0:13:14.000 for women, and that's something that's recognized by people who 0:13:14.040 --> 0:13:18.120 are both pro life and pro choice. Finally, there seemed 0:13:18.160 --> 0:13:21.640 to be a lot of obstacles to the e r A. 0:13:22.280 --> 0:13:25.120 What do you think the chances are that it will 0:13:25.160 --> 0:13:28.480 actually be added to the Constitution. I think in the 0:13:28.520 --> 0:13:31.400 long run, it will be added to the Constitution. I 0:13:31.480 --> 0:13:33.880 can't predict what the Senate will do. There is a 0:13:33.880 --> 0:13:36.520 bipartisan bill in the Senate as well. I don't know 0:13:36.559 --> 0:13:39.400 if it's going to move and if they will get 0:13:39.480 --> 0:13:42.520 enough votes, at least in this session. But I do 0:13:42.640 --> 0:13:45.720 think that this is the centennial year of the nineteenth Amendment, 0:13:45.720 --> 0:13:48.480 which gave women the right to vote, and a lot 0:13:48.520 --> 0:13:51.839 of the polling that has been done in states that 0:13:52.200 --> 0:13:54.360 had not ratified so there was a lot of polling 0:13:54.400 --> 0:13:58.880 in Virginia before Virginia ratified that suggested that of Virginians 0:13:58.960 --> 0:14:01.160 supported the e r A. I think there have been 0:14:01.200 --> 0:14:05.480 similar polls now in Utah suggesting that a majority, a 0:14:05.559 --> 0:14:09.000 healthy majority of Utah's UH support the r A. They 0:14:09.000 --> 0:14:13.760 haven't yet ratified, So given that there is popular support 0:14:14.120 --> 0:14:16.719 for the e r A, I do think that in 0:14:16.760 --> 0:14:20.480 this particular year, when we're celebrating women having the right 0:14:20.520 --> 0:14:22.680 to vote for a hundred years, there might be some 0:14:22.720 --> 0:14:26.680 political consequences for members of Congress who are not willing 0:14:26.800 --> 0:14:30.880 to remove the deadline in this election year. And I 0:14:30.960 --> 0:14:33.760 think that if that happens, then perhaps next year or 0:14:33.760 --> 0:14:36.640 the year after, there might be support in both Houses 0:14:36.640 --> 0:14:39.360 of Congress for removing the deadline. And I think if 0:14:39.360 --> 0:14:42.360 that happens, we will have an e r A that 0:14:42.640 --> 0:14:47.000 is added to the Constitution without its legitimacy is being questioned. 0:14:47.640 --> 0:14:50.840 Thanks for being on Bloomberg, lad Julie. That's Julie sifteen 0:14:50.920 --> 0:14:54.080 for the Master's Programs at the City University of New York.