The ERA, the Military, and the Making of Constitutional Meaning

Introduction

Cary Franklin

The Equal Rights Amendment (ERA), originally sent by Congress to the states in 1972, is now one state away from reaching the thirty-eight-state supermajority required for ratification. Should another state ratify the ERA, a major constitutional battle will commence over the legitimacy of the Amendment’s ratification, in part because the deadline for ratification passed nearly forty years ago.1

But the ERA’s opponents are hoping it won’t come to that. In a recent column, entitled “The ERA is Dead. It Should Stay That Way,” George Will urges readers to reject growing efforts to secure a thirty-eighth vote for ratification.2 Will argues that ratification of the ERA would be disastrous because its text—“[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex”3—has no clear meaning and would thus “arm liberal judges with language into which they could pour whatever content they wanted.”4 The ERA would be a “license for unconstrained judicial improvising,”5 he argues. Judges could make its nonspecific equality guarantee mean whatever they want it to mean. They could use the ERA to impose on the American people an unpopular set of feminist rules and values—rules and values bad for women and violative of privacy and family life.

Will is not the only ERA opponent making this argument. The Family Foundation recently sent a letter to Republican lawmakers in Virginia describing the ERA as a “Trojan Horse”—suggesting that the Amendment’s innocuous wording masks its radical feminist implications.6 In fact, the claim that the Amendment would give judges a platform from which to remake American society along radical feminist lines has long been central to anti-ERA activism. This essay reflects on this longstanding claim by taking a brief look at the modern history of the ERA, and, in particular, at the ERA’s relationship to the issue of women in the military.

Although the ERA was originally introduced in Congress in the early 1920s, there was a renewed push for the Amendment in the late 1960s and early 1970s. In August of 1970, Michigan Representative Martha Griffiths brought the Amendment to the House floor, where it quickly passed.7 That same month, tens of thousands of protestors in cities throughout the United States participated in the Women’s Strike for Equality, the largest demonstration on behalf of women since the campaign for women’s suffrage.8 In fact, the Women’s Strike was held on the fiftieth anniversary of the Nineteenth Amendment’s passage, self-consciously invoking that earlier fight to end women’s second-class citizenship.9 The strikers argued that to ensure women’s equal citizenship in the late twentieth century, women needed more than the vote.10 They made a range of demands related to education, employment, childcare, and reproductive rights11—and they also demanded ratification of the ERA.12 Strikers throughout the country collected signatures on pro-ERA petitions. In Washington, D.C., they lobbied leading Senators for passage of the Amendment.13

By this point, in 1970, Congress was quite sympathetic to the idea of the ERA. But one of the major topics of discussion and debate in both houses of Congress was the effect the ERA would have on the role of women in the military.14 The Vietnam War was still raging at the start of the 1970s and men were being drafted and sent overseas, some of them to their deaths, so the stakes surrounding this question were high. The ERA’s chief supporters argued that the Amendment would greatly increase women’s opportunities for service in the armed forces and bolster their standing as full and equal citizens.15 On the day the ERA was introduced in the House, Representative Shirley Chisholm, the first African American woman elected to Congress, made a speech on the House floor that focused, among other things, on women’s exclusion from the military—in particular, the fact that the selective service law required men but not women to register for the draft.16 Other supporters of the ERA echoed Chisholm’s understanding that women’s exclusion from draft registration reflected and reinforced their unequal citizenship status, and that the ERA would end that exclusion.17 Indeed, pro-ERA legislators in both houses defeated numerous attempts over the course of 1970 and 1971 to add provisions to the ERA exempting women from the draft.18

Advocacy around sex equality in the military began to bring about real change in these years, even though the ERA had not yet been ratified. For instance, in September 1970, a few weeks after the House voted in favor of the ERA, a judge advocate in the Air Force named Tommie Sue Smith brought a lawsuit challenging the constitutionality of a policy that required the discharge of any woman whose minor child lived with her for more than thirty days a year.{See Judith Hicks Stiehm, Arms and the Enlisted Woman116 (1989); Hale & Kanowitz, supra note 17, at 213.}} Smith initially dealt with this policy by placing her son in a boarding school from the time he was four—a “choice” that other mothers in the service were forced to make as well. But when Smith was transferred to the Philippines, boarding her son was no longer an option and she decided to sue.19 The day after Smith filed her suit, the Air Force revoked the challenged policy, explicitly citing “the recent emphasis on women’s rights” as the reason for its decision.20

Smith was far from the only female service member to file a sex discrimination suit in this period.21 Not long after Smith’s victory, the Supreme Court granted certiorari in a case brought by Captain Susan Struck, whose pregnancy—and whose refusal on religious grounds to have an abortion—subjected her to automatic discharge from the Air Force.22 Struck v. Secretary of Defense was rendered moot by a last-minute change in Air Force policy prior to oral argument.23 But soon thereafter, the Court heard Frontiero v. Richardson, another case brought by a female service member (and her husband), which challenged the constitutionality of a policy that provided male service members with family-related benefits on more generous terms than their female counterparts.24 The Court in Frontiero famously invalidated the policy as a violation of equal protection—explicitly citing Congress’s recent passage of the ERA in support of its holding that sex discrimination violates constitutional equality norms.25

A few years later, a federal district court in Washington, D.C. echoed this understanding in a decision striking down a law that barred the assignment of women to duty aboard Navy vessels.26Another district court in this period held that limiting draft registration to men violated equal protection.27 The court drew on advocacy around the ERA to reach this conclusion, echoing the point made by ERA proponents that discriminatory treatment in the military was linked with discriminatory treatment elsewhere.28 The court also drew on ERA advocacy to explain that excluding women from the draft deprived them of equal citizenship and reflected “ingrown societal repulsion to the suggestion of women abandoning their stereotyped roles.”29

In these and other ways, pro-ERA advocacy shaped how courts understood sex discrimination and interpreted the Constitution’s existing equality provisions. But ERA proponents were not the only advocates who influenced the development of sex discrimination law in this period.30 In 1972, the remarkable conservative activist Phyllis Schlafly founded an organization called “STOP ERA,” which did precisely what it said it would do.31 Schlafly and other STOP ERA campaigners attacked the ERA as anti-woman and anti-family.32 They argued that these tendencies were nowhere more apparent than in ERA proponents’ desire to subject girls and women to the draft and to require them to engage in combat.33 Forcing mothers to become soldiers and potentially die on the battlefield was no way to protect American women, Schlafly and her colleagues argued. Requiring women to take up arms like men was not “equality.”

The STOP ERA campaign—and its arguments about women in the military in particular—had tremendous influence in the states. In Illinois, in 1978, when the state legislature held hearings on the ERA, proponents of the Amendment recruited prominent business and union leaders, lawyers, ministers, nuns, and rabbis to testify in its favor.34 Opponents simply sent in a procession of teenage girls, one from each district in the state, to inform legislators that they did not want to be drafted and sent into combat.35 That display, coming so soon after the carnage of the Vietnam War, spelled the end of the ERA in Illinois (until last year, when it was finally ratified).36

The STOP ERA campaign, and the dramatic drop in support for the ERA it triggered, also helped to influence the development of constitutional sex equality law. In 197­6, the Ninth Circuit overruled the district court decision referenced above—the one that held the exclusion of women from the draft unconstitutional.37 When the issue reached the Supreme Court in 1981, in Rostker v. Goldberg, it too declined to hold that women’s exclusion from the draft violated constitutional sex equality guarantees.38 Not coincidentally, one year later, almost to the day, the deadline for ratifying the ERA expired and the Amendment failed.39

This essay opened with the claim, made by George Will and others, that the ERA is a license for unrestrained judicial activism and that it would provide liberal judges with a platform to impose all kinds of radical dictates on American society in the name of sex equality. But what the history of the ERA actually shows is a striking degree of responsiveness on the part of courts to social movement activism—at first in a progressive direction, but then overwhelmingly in a conservative direction as the New Right came to power, oversaw the appointment of conservative judges to the federal bench, and convinced large numbers of Americans that the ERA threatened deeply-held values and treasured ways of life. The federal judiciary today is no more likely to use the ERA as a vehicle for imposing radical feminist constitutional interpretations on an unwilling nation than it was in the late 1970s.

But there is a kernel of truth in what George Will says, which is that the original legislative history of the ERA, from the early 1970s, is spotty. When Congress sent the ERA to the states for ratification in 1972, the exact contours of the Amendment’s equality guarantee were not clear. There were important issues the legislative history did not address, and there were other issues on which that history was ambiguous.40 The exclusion of women from combat is a case in point. Proponents (and, for that matter, opponents) of the ERA generally agreed that its ratification would end the exclusion of women from the draft. But there was disagreement about whether it would also compel the government to lift the combat exclusion.41 The combat exclusion remained firmly rooted enough in 1981 that the Court in Rostker cited it as a legitimate constitutional justification for the government’s ongoing exclusion of women from draft registration.42 Had the ERA been ratified, it is far from clear that the Burger Court, which shifted dramatically rightward over the course of the 1970s, would have taken a different position on the reservation of combat roles to male service members. The ambiguous legislative history of the Amendment from the early 1970s certainly would not have compelled it to do so.

Thus, if the ERA were to be ratified today, and if a court were subsequently to find that it required an end to discrimination against women in all military contexts, it would not be because the ERA unambiguously demanded that result. It would be due, in significant part, to all of the social change the women’s movement, legislators and other political actors, female service members, and the military itself helped to bring about over the past four decades—some of it initially spurred by activism around the ERA. For instance, in 1975, Congress passed a law permitting women to enter the military service academies.43 In 1991, Congress repealed statutory prohibitions on assigning women in the Air Force, Navy, and Marines to combat aircraft;44 in 1993, the Secretary of Defense issued a directive instructing the armed forces to remove barriers to women in a broad range of combat situations.45 In 1996, the Supreme Court held that the Virginia Military Institute’s exclusion of women violated the Fourteenth Amendment.46 In 2013, the Pentagon finally lifted the ban on women serving in combat roles.47 A future court could interpret the ERA to bar the state from excluding women from combat in part because the idea of women in combat is so much more familiar now than it was forty years ago. This is the kind of change that emerges from decades of social activism and constitutional debate in society;48 it does not spring out of nowhere from the mind of an activist judge.

This means that the ERA is not a Trojan horse poised to unleash a radical new feminist order, despite what George Will and fellow opponents of the ERA may suggest. But it also means that passage of the ERA would not automatically prompt judges to enforce a set of values consonant with those of the Amendment’s most progressive supporters. The modern campaign in support of the ERA has already taken nearly half a century. If the ERA is ratified, the campaign to make the Amendment mean what its most ardent supporters believe it should mean will last at least as long and be just as hard fought.

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