The Senate Passes the Equal Rights Amendment
“Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Those 24 words, written by Alice Paul in 1922, have provoked a nearly century long debate in the U.S. Congress.
The Equal Rights Amendment has been a perennial topic in Congress since 1923, but not until 1972 did both houses of Congress approve the ERA with a constitutionally required two-thirds majority. When Michigan congresswoman Martha Griffiths pushed the ERA through the House in 1971 with a seven-year enacting clause provision attached, Indiana senator Birch Bayh used his position as Judiciary subcommittee chairman to adopt the House bill as a substitute amendment to an existing Senate joint resolution. The bill faced considerable opposition, however, from one powerful member.
Senator Sam Ervin of North Carolina did not like the ERA. A states’ right proponent, Ervin routinely opposed any effort to expand the reach of the federal government. He worried, too, about the societal effects of the amendment. Would the ERA compel women to register for military service? Nullify protective labor laws? Legalize homosexuality? Eliminate the practice of gender-segregated facilities in dormitories, prisons, and public restrooms? In the 1970s, many states required women to take their husbands’ family name. If enacted, the ERA would nullify those laws, Ervin predicted, and the effects on government record-keeping would be “staggering.” The Senate should proceed cautiously, Ervin insisted, lest it approve “a Ton[kin] Gulf Resolution of the American social structure,” effectively terminating all legal “distinction[s] between men and women.”
Senator Bayh countered Ervin’s arguments carefully. “There is overwhelming evidence that persistent patterns of sex discrimination permeate our social, cultural[,] and economic life” he wrote, concluding that states and courts had been too slow to address these inequalities. Some women were rightfully impatient for change. Therefore, a Judiciary Committee report concluded, “There is a clear and undeniable need” for the ERA.
When the Judiciary Committee’s substitute resolution came to the floor for a vote, Senator Ervin offered a handful of amendments, which his colleagues promptly rejected. On March 22, 1972, a lopsided bipartisan majority approved the amendment: 84 senators voted aye; eight, including Ervin, voted nay. When the chair announced the final tally, the overflowing visitors’ gallery erupted in jubilant celebration. Two hours later Hawai’i became the first state to approve the ERA for ratification. Other states soon followed. In 1979 Congress extended the enacting clause, and when it expired in 1982, the ERA was still three votes short of the three-quarters required for ratification. In March 2017 and May 2018, Nevada and Illinois respectively became the 36th and 37th states to ratify the amendment. Some legal scholars argue that, despite the expired clause, the ERA is now only one vote short of ratification.
As it turns out, many of Senator Ervin’s predictions have come to pass—even without the ratification of the ERA. Women now serve in the military. Some American businesses offer gender-neutral restrooms, some major universities provide co-ed dorms, and some women choose not to take their husband’s name. But here is something else to know about Sam Ervin. He was one of only a handful of senators to appoint a female chief of staff, Pat Shore Clark. In fact, Ervin hired women to fill prominent professional positions throughout his 20-year Senate career. He did practice the basic principle of the ERA, even if he didn’t support the amendment's passage.
