Strict Scrutiny - We The Women

Episode Date: October 26, 2020

Kate and Melissa talk with Julie Suk, author of We the Women: The Unstoppable Mothers of the Equal Rights Amendment. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Kate Shaw. And I'm Melissa Murray.

So before I introduce our guest, let me set the stage just a little bit. So the year 2020, as people probably are aware, marks the centennial of the 19th Amendment, which guaranteed women's constitutional right to vote. And 2020 is also the year, and this is something, Melissa, you and I have talked about on previous episodes, in which the requisite number of states, 38, finally ratified the Equal Rights Amendment, an amendment that would write into the Constitution sex equality beyond the right to vote guaranteed by the 19th Amendment, and arguably beyond those rights read into the 14th Amendment's guarantee of the equal protection of the laws. So against that backdrop, here comes 2020 in all of its splendor. And part of that splendor is this terrific book written by legal scholar Julie Suk, which is called We the Women, the Unstoppable

Mothers of the Equal Rights Amendment. The book goes deep into the history of the ERA, focusing on the women who masterminded it and who moved it forward at various historical moments. It is a story of stops and starts, but also one that poses a question about how history can and should inform not only the present, but also our future. So we're really excited to talk about this terrific book. So Kate, do you want to tell us a little bit about Julie? Of course. So Julie is now the Dean for Master's Programs and a Professor of Sociology at the CUNY Graduate Center. Before that, she was a law professor for many years, including my colleague at Cardozo, not only my colleague, but my down-the-hall neighbor. And Julie, we miss you

at Cardozo, but it's wonderful to see what you have done in the time since you left us. Julie, it's great to have you. Welcome to Strict Scrutiny. Thank you so much. So thank you so much, Melissa and Kate, for having me on the show. And I just want to add an update that I'm now a Florence Rogatz Visiting Professor of Law at Yale Law School. So back to law teaching for the time being. And I wanted to start there because Florence Rogatz actually graduated from Yale Law School in 1923, the year that the Equal Rights Amendment was introduced. And she was actually a lifelong fighter for the ERA. And I encountered a letter that she wrote on behalf of the National Women's Party when I was going through the legislative histories and the congressional hearings on the ERA. RA. So it's a good place to begin the story, although she's kind of like this cameo that comes in to the large cast of characters that are in my book. And there are so many, right? There is this

dizzying array of characters, some who are quite familiar, I think, and some who are new, I think, even to people who are pretty steeped in the history. So I hope you'll have a chance to kind of introduce us to some of them today. But maybe before, maybe let's take even a step back and ask you to sort of start the conversation by walking us through where the effort to enshrine sex equality in the Constitution begins. Not the ERA specifically, but the general idea of equality and sex equality specifically and the Constitution. Does it start in 1923 or does it start even earlier than that? Well, the formal amendment, like many of the formal amendments that we have in the Constitution, has a much longer history. And as a formal amendment, what it wanted to do was to eliminate the law's discrimination against women in all areas of law beyond voting. And that idea, before a formal constitutional amendment is proposed, goes back actually almost a century before 1923. And, you know, I sort of start at 1848, I think, by my lawyerly nature sort of fetishizes the document, which is the Declaration of Sentiments

in 1848. Although certainly historians have looked at the document, which is the Declaration of Sentiments in 1848. Although certainly historians have looked at the extent to which during the abolitionist movement claims for women's equal rights really begin even before Seneca Falls. But in 1848, we get a document that is produced by a bunch of women who are agitating for women's rights at Seneca Falls, and it mirrors the Declaration of Independence. And it makes a demand for the right to vote, but the right to vote is just one of many rights that are demanded. And an important resolution in that document is also a demand to secure to women equal participation with men in various trades, professions, and commerce. So the idea that you need to have a legal framework by which women can be economically

independent is an idea that actually goes way back almost a century. And even before we get to kind of the formal introduction of, well, even before the 19th Amendment, you know, you spend a little bit of time in your book between so you have Seneca Falls and the Declaration of Sentiments in 1848. And then, you know, around sort of Reconstruction, there is this moment when it looks as though there is an active effort to enshrine both sex equality as well as racial equality into the Constitution through the Reconstruction Amendments. Where does that effort go? Well, many of the women who are famous in this period for their efforts on behalf of women's rights began as abolitionists and participated in the abolitionist movement, including Lucretia Mott and Susan B. Anthony and Elizabeth Cady Stanton.

And so many have told this story at greater length than I do. And indeed, one of my favorite renditions is actually an opera with a libretto written by Gertrude Stein, which dramatizes Susan B. Anthony's efforts and disappointment when the 14th Amendment actually becomes the first amendment in the Constitution that uses the word male. And even though their hope was, of course, that the broader equality guaranteed by is tinged with a little bit of racial invective. Like, they're really stunned that formerly enslaved men can participate in the democracy, but they cannot. So can you talk a little bit about that point of disjunction? And where are Black women in this moment? You know, they have recently been freed by the abolitionist movement, but they're also not included in this particular moment by the suffragists either, or at least not as completely

as we would hope. Yeah, well, Section 2 of the 14th Amendment actually makes reference to, I mean, what they were anticipating, of course, the Southern states that were going to try to disfranchise those who were granted citizenship by the first section one of the 14th Amendment. So section two actually refers to the right to vote of male citizens. And they're talking about male citizens, the formerly enslaved black men. And but that language also then signals to Elizabeth Cady Stanton and Susan B. Anthony, that the concept of citizenship and voting citizens really doesn't include women. And I think they do get angry. And for that reason, they actually oppose the 15th Amendment. And they also make friends with some unsavory characters, including George Train, who finds one of their publications.

And so at this point, I think the suffragist movement, or at least many white suffragists, are realizing that making friends and coalitions, not only with Black women and men, as they did in the abolitionist movement, but also with white Southerners who are actually very afraid of African Americans voting at this time. They realize in terms of the numbers that making those kinds of coalitions might actually help their cause. And of course, during all this time, there are Black women who are also fighting in their communities and often organizing in their churches to expand rights for African American women. Mary Church Terrell is one of them. She forms an organization called the National Association of Colored Women at the turn of the century. And African-American women are

fighting for a whole range of social justice causes, including they're fighting against lynching. They're also, and what's really interesting about the National Association of Colored Women that Mary Church Terrell is one of the founders of, is that she's also setting up daycares and nurseries because African-American women who are no longer enslaved actually have to work in order to support their families. And so she knows that child care is actually an important component of that. She gives speeches about that. She gives speeches not only in this country, but in Germany in 1904 about the role of African-American women creating child care in their communities and fighting all these different fights in order

to make sure that they are liberated and enfranchised. And so their understanding of the franchise is not simply about just going into the ballot box to cast a vote, but rather democratizing the space before you go into the ballot box. Like they're really talking about democratizing the family and freeing women from their place in the family so that they may fully participate in the polity, whether it's as voters or just as equal citizens. So they don't see this solely as a question of the vote itself, but something much larger. Yeah, absolutely. I think in some ways there were also elements of the women's movement in the late 19th century that was actually less

interested in the vote, but only saw the vote as a vehicle to other more substantive goals. I'm talking about the more conservative women's temperance movement, which in the late 19th century, some of the temperance leaders started to say, we're never going to get rid of drunkenness and alcohol unless women actually have the vote. And that actually plays a very important role in expanding support for women's suffrage. But I think the idea that it's not just the symbolic value of women voting, but women actually using it to improve their lives and to break down other barriers to their general lack of economic security within the home and subordination, even if they have economic security through dependence on their husbands, that they don't have the right to refuse sex with their husbands

if they actually do earn any money outside the home. The husband controls those earnings. These were the kinds of things that they wanted to use the vote to change. And I think that was also true of African-American women. African-American women during this time, many of them did have to work and they wanted the means by which they could actually rear their children while working and also creating a space that was safe in the context of the possibility of racial violence. So one of the things I think is most effective about your book is that you really show the connective tissue between these social movements that I think heretofore we've

understood as being relatively distinct. So you talk about abolition and the 13th Amendment, enfranchisement and the 14th and 19th Amendments, the women's rights movement, and the temperance movement. And ordinarily, we think of all of these things as disconnected, but as your book shows, they're actually interwoven. And in a way, the 13th Amendment is to the 14th Amendment what temperance is to the Equal Rights Amendment when it gets launched in 1923, or the 19th Amendment and temperance together has a relationship to

the ERA. And so can you say a little bit more about how all of these movements intersect? They're all percolating at the same time. Some of the same people are involved, but yet we talk about them as though they're completely discrete entities? Well, I think one of the reasons why we think of them as discrete is that there were coalitions that lined up between temperance activists and suffragists. And so then you get the 18th and 19th Amendments in rapid succession. Then there are coalitions among suffragists with various attitudes and approaches to what the next steps are. And I don't think all the women who wanted the vote actually wanted to use the vote for the same kinds of things. Immediately following the 19th Amendment, the ERA is introduced, and it's introduced by the National Women's Party with Alice Paul. I think nowadays we think of Alice Paul as the sole author, although she actually isn't. You know, there's Crystal Eastman, an NYU graduate, and an awesome

NYU graduate who actually had a lot of experience in the industrial workplace before she came to the point of drafting the ERA with Alice Paul. Alice Paul, on the other hand, had a lot of alliances with business interests. And so this leads to some tensions around what's going to happen to industrial legislation that protects women only. And because of those tensions, because Alice Paul was totally comfortable with having an ERA that would just wipe out anything that was for women only, there were a lot of women who had been working to get protections for working class women and women working in factories and laundries who were scared to death of having a constitutional amendment that would wipe all that away.

So women like Florence Kelly. And I think Crystal Eastman had a slightly different view. She was hopeful that we would get an ERA that would actually level everything up, bring men and women all the protections they needed as workers in industry. And so there are all these different views that are percolating. But because there's actually real uncertainty as to what's going to happen to that labor legislation under an ERA, a lot of the women's groups, in fact, all the women's groups except for the National Women's Party, oppose the ERA when it's first introduced in 1923. to me like this kind of perfect solution that she offers up, which is to the extent that there is this wedge that is created between those who are concerned about the loss of privileges that some of this protective labor legislation confers and those who advocate an ERA. She sort of says, none of this has to disappear. All you know, what we can do to sort of square the circle is just to extend the benefits that we are concerned about forfeiting through the ERA to men as well. And yet she's not successful, right, in sort of overcoming the opposition that is ultimately successful, right,

in defeating the first iteration of, well, defeating even getting off the ground in Congress, the first iteration of the ERA. And part of it, too, I mean, against the backdrop of what's happening at the court, you know, Lochner is decided in 1905. A big part of the rhetoric that's undergirding Lochner is this idea that any kind of protective legislation makes the laborer somehow infantilized or enslaved. I mean, the language of wage slavery is really thick there. And so, you know, to be free, to be truly free, economically free, is to be able to negotiate the terms of your labor for yourself. And then you have Mueller a few years later that's like, well, not for everyone. For the ladies, we can be more protective.

And Crystal Eastman is saying, well, let's have Mueller for everyone. But the sort of idea of wage slavery is so thick and so deeply associated with the protection of the state that it doesn't really win out. They don't see the leveling up as something that they can do for men too. Yeah, well, Crystal Eastman was way ahead of her time. And of course, Mueller has decided in 1908 when women can't vote in most states. And so the notion that women need extra legislative protection because they don't have the political or economic rights time to start thinking about real liberation, including a motherhood endowment, paid maternity leave, which, by the way, we still don't have as a matter of federal legislation. But Crystal Eastman was talking about it in 1920. And I don't think this country was ready for it at the time. And so she's also saying labor protections for everyone. And in some ways, the country wasn't really ready for it. We get Atkins

versus Children's Hospital in 1923, where the Supreme Court actually strikes down the minimum wage for women. And points to the 19th Amendment. Exactly. Because now that we have the 19th Amendment, women do have the means of protecting themselves from exploitation. And therefore, the Supreme Court says that the ancient inequality between the sexes is coming to a vanishing point in 1923, right? And so it was because of decisions like that, that Florence Kelly, some of the women who had been working for these protections, said, well, Atkins protects women's constitutional right to starve. And so she was drawing attention to the point that having constitutional rights that you were going to hand over to a judiciary that was hostile

to labor rights was actually not going to be particularly helpful for improving women's lives at all. And so she preferred a model of women's rights, which I think was also a constitutional theory that would enable legislators to do what was necessary to make equality real for women. That's how she saw protective labor legislation. And I think that's actually a through line that you see, even though she opposes the ERA in the 1920s, the idea that the real way to get constitutional equality for women is to have an amendment that's not about judges, but actually about enabling and empowering legislatures. I think that actually dates back to this period because Florence Kelly opposes the ERA, but in some writings says maybe we should have an amendment that actually empowers legislation.

And she also proposes in the 1920s and is active in the movement for the Child Labor Amendment, which differently from a lot of other, differently from the ERA, is framed as Congress having the power to legislate on child labor rather than simply a right not to be subject to certain conditions of labor. So before we leave the 1920s, can I ask you to talk for a couple of minutes about the Shepard-Towner Act, which is a pretty interesting discussion in the book that I didn't know much about. There is this moment when Congress gets influenced by this kind of push for this legislative constitutionalism that you are alluding to, actually acts in sort of unprecedented ways

to do, in a narrow sort of discrete sphere, but a really important one, which is to promote maternal and infant health. So what was that act? How does it come about? And then how does it sort of disappear? So it's actually an act, and Florence Kelly was an important figure in making it happen. It's an act that created grants and aid to the states. The states would have to opt in, but it would create these centers, and it did create these centers that would serve women and give them information and some basic health care to reduce alarmingly high rates of maternal mortality at that time. And of course, we're here in 2020 with higher maternal mortality rates in this country than in some of our peer nations. And if you look at the maternal mortality rates in this country than in some of our peer nations.

And if you look at the maternal mortality rates for African-American women, it's really stunning how we have failed still in 1920 on those issues. And but by then, it didn't just happen out of nowhere. That is, a lot of the women's suffrage groups reorganized and formed the Women's Joint Congressional Committee, and they would lobby in Washington for legislation on the heels of the 19th Amendment. And this was this vision that once you had political power, you should use it to get substantive policies that were actually going to improve women's lives and make their chances of exercising freedom and equality

real. And so that legislation, I think it passed also because the men in Congress knew that women had the vote. And interestingly, the legislation expires by the end of the decade when they realize that women are not exercising their right to vote in a manner that always lines up in favor of policies that one might think are in women's favor. So it's a short-lived policy, but it's an important model because I think later on, if you look at the moment in the 1970s when the ERA is gaining steam in Congress, it's a time when women of color in Congress are working on child care legislation on a similar model, that is creating funding that goes to states to create child care available to everyone, regardless of ability to pay. So I actually think that's a good segue to the 1970s and the effort

to actually get the kind of modern ERA off the ground. So do you want to lay the groundwork for that? Sure. So 50 years ago in 1970, that's when you get the first vote in the House to adopt the ERA. There were some efforts to adopt the ERA in the Senate in the 1950s. They got two-thirds of the vote, but they had a rider that would have created certain exemptions and special protections, which many of the supporters of the ERA were worried that having such language would actually swallow the ERA. So it actually takes 50 years. So the ERA is first introduced into Congress in 1923 on the heels of the 19th Amendment.

And Alice Paul writes after the 19th Amendment is ratified, now we can begin again. So now that we have the vote, we can actually do this other stuff. But it takes 50 years before the ERA gets voted out of Congress, in part, as you note in the book, because there aren't a lot of women serving in Congress. And so there's this watershed moment in the 1970s where there's an uptick in women's representation. And that coincides with this. Actually, Melissa, it's very weird because it's I wouldn't really call it an uptick. So immediately after because we have 10 women in the House and one woman

in the Senate. So that's 11 at the moment that the ERA gets its first real push in the House. And actually, I looked at the numbers. The like 10 women in the House is actually not much of an uptick since the 1940s. OK. And what but what is interesting, although it's also true by 1970, a lot of the early women in Congress, you see some women in Congress in the 1920s and 30s. And it's usually widows of men who died in office. And then there was a special election or the governor appointed, you know, the wife, the widow of.

And I think by the time you get to the 70s, you get more women in Congress who are being independently elected. Although some widows or people who got their start as widows as well. That's, I think,

another really interesting book to be written if it hasn't been written already. But it is only 10. And you would think that there would be like, you know, we would start at two and end up at a much larger number. But it's kind of stable at around like between five and 10 women, mostly in the House, throughout like for like a whole generation before you get to 1970. So how do they, with just 10 women in Congress, 10 women in the House, one woman in the Senate, how do they build coalitions with these men? And it's a bipartisan coalition. I mean,

that's what's really interesting. There's a lot of growing support for it. And I think even though my book really focuses on the women, certainly there are very important men who play a leading role as well, like Birch Bay in the Senate. There's only one woman in the Senate, Margaret Chase Smith, who is sort of at the end of her career in the Senate. And even though she was actually she was a sponsor of ERA bills in the 1950s, she's pretty quiet in the debates by the time you get to the early 1970s. So it's people like Birch Bay and very interestingly, Marlo Cook, a Republican senator from Kentucky. And I believe Mitch McConnell was actually working for him as a legislative aide right around this time. But you have these Republicans who are in favor of the ERA. It's considered pretty uncontroversial. And it's also during a period when there are several, there's a lot of amendment

activity prior to the point that the ERA is successfully adopted by Congress. But I think that it's largely that by this point, women's roles in society are changing. And there's increased attention to the need for opening up opportunities so that the talents that women bring to the table are actually fully unleashed and realized. How does the sort of vision of the folks who are promoting the ERA in Congress, I guess, how does both the vision of it and the text of the amendment differ from the first iteration of the ERA? I mean, you spend a lot of time on the kind of the sort of the legislative backstory, right? The sort of things that are said in the debates that occur inside the halls of Congress. How has it changed in the sort of 50 years that it has been percolating?

Well, when it's first introduced, it's very interesting because the first sentence of the ERA when it's first introduced does not have a state action requirement. It just says women shall have equal rights in the United States and every place subject to its jurisdiction. It says something like that when it's first introduced in 1923. And it gets rewritten in the 1940s, where it becomes equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex, right? So there, the strong state action language is kind of written in. So it moves from a 13th Amendment model to a 14th Amendment model, essentially. It does. Yeah. And that text is what is kicked around and adopted in the early 1970s as well. But one thing to keep in mind also is that by the time you get to 1970, a lot of the things that we think of, I mean, of course, the state action doctrine was stable.

But there are things, for example, in equal protection jurisprudence, like this notion that disparate impact policies that have a disparate impact on minorities or women do not violate the Equal Protection Clause. That's 1976, Washington versus Davis. And then you get Feeney a couple of years after that. But so I do think that in 1970 and even in 1972, when it's fully adopted by both houses of Congress, I think the idea of equality of rights under the law, even though there is a state action idea, I think this whole shall not be denied or abridged is a much broader idea than we might associate currently with equal protection understandings of what violates the idea of equal protection. And I think that broad idea is actually borne out in the legislative history, where Patsy Mink, for example, she's a Japanese-American woman,

first Asian-American, first non-white woman elected to Congress in 1964. She talks at great length about the importance of legislatures really scrutinizing their laws and getting rid of things that disadvantage women. And that sounds like disparate impact. And it's also legislative disparate impact that somehow the amendment is going to create a mechanism by which Congress and state legislatures are on the hook for trying to address disparate impact or disadvantages that may not necessarily have to do with formal sex distinctions in the law. But of course, in 1970, it's before the Supreme Court started striking down any form

of sex discrimination using the Equal Protection Clause, another primary concern driving Martha Griffiths, who's the primary sponsor of the bill. she really talks about the fact that there are many sex distinctions that remain in many states' laws, and the Supreme Court has not once, up until that point, recognized sex discrimination as an equal protection problem. So that's a perfect segue. The court in 1971, I think, I think in Reed versus Reed is 1971, actually begins interpreting into the 14th Amendment a prohibition on sex discrimination. And this gets even more play by 1973 with Frontiero. How does this development in the judiciary sort of play out in tandem with what's happening with the ERA. Does the court take notice of what's happening outside of Front Street and sort of think about their decision making within the backdrop of the ERA

and the possibility of the ratification of the ERA? Well, I think there's absolutely a conversation going on. So Martha Griffiths talks about, and she's not the only one, many of the men in Congress also talk about that Idaho case that's pending before the Supreme Court in their debates about the ERA in 1971. And the Supreme Court decides Reed versus Reed. I believe it's November 1971, about a month after the House votes to adopt it in the session that actually has it adopted also by the Senate. Right. So they're kind of right in the thick of Reed versus Reed. And actually, Martha Griffiths, of course, we focus on the tour de force brief that Ruth Bader Ginsburg files in Reed versus Reed. The grandmother, Martha Griffiths also files a little amicus brief in Reed versus Reed. The grandmother, Martha Griffiths, also files a little amicus brief in Reed versus Reed. So there's definitely this interaction between the Supreme Court's cases

during this period and what's going on in Congress with regard to the ERA. And then when you get to Frontiero, in Frontiero, the justices do talk about the fact that the ERA has just been adopted by both houses of Congress. It's now being ratified by the states, of course. But you have Justice Brennan saying the fact that Congress by two thirds has adopted it suggests that it's time to start scrutinizing. Although there's disagreement amongst the justices as to what the correct level of scrutiny should be, there's agreement that it's time to start thinking about a heightened standard beyond a rational basis standard for thinking about sex discrimination. So I think there's a very strong argument that the ERA is actually already becoming part of our law at that moment without being formally written into the Constitution as a

formal amendment, because it's changing the way that the justices are thinking about what equal protection requires. So then back to the halls of Congress. So we have the ERA, when it is adopted by both houses of Congress, it passes, I believe, well above the constitutional requirement. It's an unbelievably right lopsided vote in both houses of Congress. And then it heads to the states. So two questions. One, will you sort of talk us through kind of your version of the narrative of what happens in the states? And second, much more frivolous question, have you seen Mrs. America yet? And what do you think? Because I haven't seen the whole series, but I really liked the first couple of episodes. And I think Melissa and I have talked about this. And I know you're not a culture critic, so I don't put you on the spot.

But if you've seen it, I'm curious what you think. Yes, I have seen it. And I will say, I mean, I think Cate Blanchett does a beautiful job as Phyllis Schlafly. But of course, if I were writing the script, I might have focused on other things. I mean, there are probably good reasons in life, both for my sake and the world of television, that I'm not a television script writer, because I really would have spent more time on the show in the halls of Congress. All the legislative history. I would watch that version of Missing Mary, but I'm not sure if the rest of the country would agree with us.

If it's a show about the ERA, but if it's a show about Phyllis Schlafly, then I think it's great. But I think this does get to a question of who the proper villains are in our story of the ERA's failure, because I think the usual villain in the story is Phyllis Schlafly. And I want to be very clear that she's actually not my villain. OK, wait, so let's pause. So people probably do know because Melissa and I have talked about her, but just tell us a little bit about who she is. And then I want to sort of offer up two other possibilities. I'd ask Julie, who is the villain in your story? Because there are tons of heroes. And I think Schlafly is one possibility. Sam Irvin seems like another possibility, maybe the legislator who is the most responsible for thwarting passage along the way

of the ERA, although ultimately unsuccessful. The third villain I was going to propose is just Article 5 of the Constitution. So anyway, I'm curious about what's your take on all of that. But will you lay the foundation a little bit for who Phyllis Schlafly was and what her role here was first? Okay, so Phyllis Schlafly is a conservative icon. And even by the time that she opposes the ERA, she has some fame because she wrote a best selling book in 1964 called A Choice Not an Echo. And it's widely believed to have really boosted Barry Goldwater's presidential campaign, securing him the nomination. Then it sold like millions of copies. And she actually ran for Congress in 1970. So during the time that the 10 women in Congress are trying to get the ERA off the ground and get 90%,

well over 90% of the House to vote for the ERA, Phyllis Schlafly is running a campaign for Congress in 1970 in Illinois, although she never once mentions the ERA in that campaign. Doesn't think about it. She's focused on foreign policy, nuclear proliferation, those kinds of issues. And her opponent, a Democrat, George Shipley, says Phyllis Schlafly should stop talking about my foreign aid votes and stay home with her six kids. And of course, she replies, she replies, my husband says that a woman's place is in the House of Representatives. And interestingly, it's the same slogan that Bella Abzug is using across the country. Bella Abzug successfully wins a seat in Congress and becomes a major player in the congressional adoption of the ERA in 1971.

Phyllis Schlafly does not win that seat in Congress. And at some point in 1972, joins a debate about the ERA and is in touch with Sam Ervin about his opposition to the ERA. And a lot of the material that's in Sam Ervin's anti-ERA speeches on the floor in 1970 and 72 make their way into Phyllis Schlafly's newsletters, which get sent out to a lot of women, conservative women throughout the Midwest and the South, about what's wrong with the ERA. And so her movement against the ERA really begins around the time that the Senate adopts it in 1972. And she actually gets a lot more fame. I think probably more people know her name associated with the ERA than with any other woman in Congress who actually moved the ERA forward during this time. And I think she gets a lot of political attention for being a woman opposing women's rights. I think the show

Mrs. America really depicts that journey. And of course, the primary opposition to the ERA that she doesn't invent. I mean, these are arguments that Sam Ervin makes on the floor of the Senate. But she claims that the ERA is going to be an attack on mothers and housewives and is going to destroy the American family in the process. And she makes it seem as though the ERA is going to lead to a real rigidity in the law where the law will never, ever be able to treat men and women differently for any reason. And that's going to mean unisex bathrooms. It's going to mean women are drafted. It's going to mean that women are actually forced to work. And it's going to mean that women will never be able to get alimony and so forth. And so those are some of the things she said. And this scared a lot of people. It certainly scared women who were mothers and housewives, not all of them.

And it totally erased an important argument for the ERA that the women in the House had made, which was that one of the sources of disadvantage for women in American society was their role in childbearing and childrearing. And a lot of the Republican women also said, you know, the ERA is not going to wipe out the role of the homemaker. It's going to give new dignity to the role of the homemaker. This was actually really interesting to me as I watched Mrs. America. One, that Phyllis Schlafly would actually have benefited from the ERA. I mean, she was a working woman in many respects and was not viewed as authoritative in her chosen field, which was national security, or was not always viewed as authoritative. I mean, she had sort of thwarted ambitions there.

She certainly thwarted in her ambition to represent her community in Illinois. Imagine the counterfactual if she'd actually won. Maybe she would have been sated in her ambition to represent her community in Illinois. Imagine the counterfactual if she'd actually won. Maybe she would have been sated in her ambitions and we wouldn't have had a stop ERA movement. That's an interesting possibility. But more intriguing to me is the way she marshals women's economic advantage and their own fears about their economic precarity to stop the ERA. I mean,

this idea that in the wake of an ERA, you are not going to be entitled to alimony and you have actually never had a job outside of the home. So what will you do if your husband decides to leave you? I mean, she really sort of plays into these fears that are fears that are actually the result of women's subordination and disadvantage that the ERA would have alleviated. Absolutely. I think she's endlessly fascinating. People should watch this. It's an amazing film. But the reason she's not the villain in my story is that I think that many of the things she said about the ERA were very confusing and not really true and were a misrepresentation of what the ERA would do and what the proponents of the ERA

were putting forth. But I want to emphasize that the reason she's successful is not just because there are many people who believe her, which is true. She's also successful because of the structures we inhabit in terms of the political process. So in her home state of Illinois, there's actually a 60% rule for the ratification of federal constitutional amendments. And that's kind of interesting because a lot of states don't have that. In many of the states. You just need to ratify by a constitutional majority, which is far less than 60%. So I think if you have a 60% rule in much the same way under Article 5, we have to we need two thirds of Congress, which means like you can't get two thirds of Congress to agree on anything, let alone a proposition about women's rights, you know. But I think that in Illinois, having that

60 percent rule made it kind of easier for someone to defeat something by creating confusion as opposed to creating like a real opposition. And so and I think we need to sort of tease some of that out because it's not just her home state. I think that in a state like Virginia, there, and this is something that women in Congress talk about when they're extending the ERA deadline in 1978. In Virginia, for years, the ERA was just bottled up in committee. There were a few only men in committee who refused to let it get a debate on the floor. And if it doesn't really get a debate on the floor, a lot of the misinformation or confusion doesn't actually get deliberated on and cleared up. And worse, if it doesn't get a debate on the floor, even in the face of growing popular support for an amendment,

it means that the people who are against it actually don't take the political heat for it because their votes are not recorded. And I think those are the kinds of dynamics that are kind of invisible as we think about the ERA. We really think that women didn't want it. There was a culture war and it went one way. But there is a political process that structures the culture war. And that political process doesn't always live up to the ideals of democracy. Melissa has to hop off now, but Julie and I are going to finish the rest of the conversation without Melissa. So I think that's such a great point that there are these, you know, it is possible to exploit these choke points in the legislative process, not only in Congress, but at the state level. And that in some ways that the successful manipulation of the legislative process is responsible for, you know, the ratification process grinding to a halt.

It is not as though the country just changes course. It is that, you know, there is Schlafly and her allies and others are successful in, I think, sowing enough confusion and, you know, stoking enough opposition that that opposition is successful at derailing the ratification that, as you say, sometimes requires a supermajority vote in the state legislature. But sort of whatever the kind of constellation of causes, ratification grinds to a halt. And then I want to fast forward to sort of 2017 and what story you tell about why there is this renewed push that is ultimately successful to get the remaining three states to get us to 38, to get those remaining states to ratify the ERA? lease on life, in part because of the Women's March, which follows the election of Donald Trump and a reaction against some of his misogyny during the presidential campaign of 2016.

But I want to say that I don't think it's just that moment, because the revival was actually brewing for at least 25 years before 2017. It did grind to a halt in 1982. But what happens in 1992 is that the 27th Amendment is ratified. And even the story of the 27th Amendment, I believe, is something that probably would not have happened without the ERA. So let me explain. The 27th Amendment was actually introduced by James Madison with the original Bill of Rights in 1789. It prohibits Congress from giving itself a pay raise unless that pay raise goes into effect in the next session after an election. And that amendment was only ratified by a handful of states initially and just gotten forgotten about. But in 1982, an enterprising young undergraduate at the University of Texas, kind of following the ERA debates, says, huh, some amendments have deadlines and others don't. Let me see which amendments do not have deadlines but have not

been ratified yet. And he picks up this amendment, what's now the 27th Amendment, the Congressional Pay Amendment, and writes a paper about it for an undergrad course in which he gets a bad grade. And in subsequent interviews, he fully admits that he got this idea by observing what was going on in the ERA debates. He gets a terrible grade, but then decides that he's going to get this thing ratified. And he writes to all these state legislators in the unratified states. And then these states start ratifying the Congressional Pay Amendment throughout the 1980s. And then you get the requisite number of states in 1992. So that is itself something that I believe is the ERA at work, right, on an unrelated amendment. But then in 1992, some of the ERA proponents, seeing what happens with

the 27th Amendment, say to themselves and to many others, it turns out that the passage of time is not really a bar to the continued ratification of an amendment. So let's have what we call the three-state strategy. If three more states ratify the ERA, then the ERA can be added to the Constitution. And some of the proponents of the three-state strategy believe that Congress could just change the deadline again, since it had already done so in 1978. Others believe that deadlines in general were deeply problematic and possibly unconstitutional. This is something that had not really been tested because we don't have any amendments other than

the ERA that continued to be ratified past a congressionally imposed deadline. But I think so that's to say that even before 2017, this strategy was embraced by a few proponents, but it doesn't really get off the ground until there's real national attention to misogyny, both with the march as well as with the Me Too movement that follows shortly after. And I think those two events coalesce with something that had been brewing earlier and had been led by activists earlier. And then you get Nevada and Illinois ratifying in 2017 and 2018. And I think that the coming suffrage centennial had something to do with what sends Virginia over the edge, although certainly even in Virginia, one house of the legislature, the Senate, had been introducing bills, sometimes successful, since 2011 to ratify

the ERA in Virginia. So I do want to get to the kind of some of these both nuts and bolts and more kind of symbolic questions about what ratification means and what sort of comes next. But I want to ask a couple of broader questions about the book first. And one is motherhood is obviously both in the title of the book and woven throughout kind of each episode. And there's something that I love so much about the sort of the way that you approach motherhood, which is that, you know, you say you have a line somewhere and I'm not going to quote it perfectly. But it was something like motherhood is not lot of debates, you know, either, again, as a sort of romanticized ideal or something to be kind of minimized or an inconvenient fact. And there is something that is just so matter of fact about your approach to it. You say, look, 75, 80 percent, depending on the period we're talking about, will have a child before we're done with our childbearing years. And so it can't be avoided. And at every moment there has been this kind of material recognition that any attempt to ameliorate the condition of women will have to grapple seriously with motherhood and children. And I just love the sort of ability to kind of cut through overwrought rhetoric and debate about motherhood and sort of to say, it's just part of life. And so policy has to address it. The numbers actually surprised me. I think it's 86 percent of women in America before they reach

the end of their childbearing years gives birth once. I mean, it doesn't necessarily mean they raise the children. It doesn't mean if they raise them, they have primary responsibility for them. But I do think that that number tells us that we can't seriously think about women's status in society or women's lives without thinking about what the state's responsibility is for childbearing and childbearing. Yeah. However it has been framed or approached, it has been kind of at the center of pushes, right? Whether they're, I know you're mostly talking about kind of legislative activity, but that it has been at the center kind of at every juncture. And it does feel like a very, it is, it nicely transcends any kind of overall debates about what motherhood should

be or mean. And in fact, sort of thinking about sort of the kind of the role of policy in responding to facilitating the role of many women. And you're right, not everybody, you know, raises kids, but a significant majority of us will have a child. So let me ask one other question. You know, this is sort of inherent to what you were saying about the 27th Amendment, and some of our conversation about Supreme Court doctrine as well. But, you know, kind of thinking about amending the Constitution in this much more kind of capacious or expansive way than just changing the words in the document and then having courts interpret those new words. Right. And that is another thing I love about the book is that there is this really expansive conception of what constitutional meaning making consists of. And so I wonder if you would talk a little bit more of that. Again, it's been implicit in some of what we have said, but, you know, why I guess it matters that there is this push now and that there has been this push previously to amend the Constitution, even if, you know, the kind of formal amendment doesn't ever become a part of the written law, sort of why does it still matter to canvas this history?

So I think it matters because the story that I'm telling of these generations of women trying to change the law by way of this amendment, they actually did change the law. That in many ways that you could tell the story, including how ERA comes into 14th Amendment jurisprudence, how ERA changes the process of constitution making through the 27th Amendment, right? Those are just two examples. But in that sense, the ERA is already part of our law. So it's done all this work and it's done all this work because of women who have had moments of genius and real hard work behind the scenes. And if it's already part of our law, the fact of not recognizing it is a problem. The fact of not recognizing work that women have done to change the law is part of the problem that women have been thinking about in a broader sense, the lack of recognition of women's work as mothers

and how that contributes to democracy, the lack of recognition of women's work as economic participants and political participants that you see manifested in unequal pay and under representation of women in Congress, for example. And so I think the fact that it's not formally part of the Constitution might be an indication of the broken process of formal amendment making and formal constitutional change. And I think it's actually, it should draw attention to the fact that we've actually had no amendments to the Constitution in our adult lives. The last time we had a constitutional amendment was 1992. And since I know how old you are, Kate, I can say that neither of us were old enough to vote the last time the Constitution was amended. And even that amendment was written by James Madison,

our beloved but slaveholding and flawed founding father. And so I do think this tells us something about the channels of constitutional change and who has access to them. And the amendment rule that we've created that produces a reality which I think we should not really find to be acceptable. The reality is that a commitment to sex equality in the Constitution is a feature of most modern constitutions. And we don't have it even though women have been trying for 100 years. And it doesn't mean it's because we don't need it and that women don't want it. It must, it actually means that there's something wrong with the process that we should be thinking about. And I think that if we can get past this hump, it's not just the ERA to which this will make a difference. There are other constitutional flaws that people have been tolerating for generations because they think that the Article 5 process

is hopeless. So the Electoral College is one. When I was in law school, when Bush v. Gore was decided, I thought that we would have a renewed conversation about amending the Constitution to change the Electoral College. And there was a conversation, but no constitutional amendment. Then we haven't formally repealed Section 2 of the 14th Amendment that talks about males as voters. We haven't formally gotten rid of the language that refers to the president or members of Congress as he in the Constitution, although I guess we don't really take it that seriously anymore. There's an absence of an affirmative right to vote, which I think a lot of people are talking about now in the context of this pandemic. The fact that we have two amendments

that say that the right to vote can't be denied on the basis of race or on the basis of this pandemic. The fact that we have two amendments that say that the right to vote can't be denied on the basis of race or on the basis of sex, but there's no actual right to vote that'll make sure that people can vote under the conditions we're living in right now. And we have an absence of affirmative rights in general, which is also different from many constitutions around the world. And I think these are all things that I think we tolerate because we know that it's really hard to change the Constitution. But maybe we shouldn't. Maybe when there are so many things that are wrong, we should start to question the process and we should question a process that has led to 100 years of women changing the Constitution through other means without being recognized. So those are all great takeaways. And maybe whatever happens with this particular iteration of the ERA that has now been ratified by the requisite number of states, those all could be far-reaching consequences that this effort that you described could potentially lead to. But so maybe to kind of end by going back a little bit specifically to the ERA.

So you suggested when activists in the three remaining states sort of mobilized again, you know, maybe earlier to some degree, but really starting in 2017, it was on the theory that this deadline might not be enforceable or in any event could be extended by Congress. So I guess if you want to talk a little bit about sort of where you stand on the current. So the Archivist of the United States has heeded the advice of the Office of Legal Counsel and has declined to certify as the 28th Amendment this iteration of the ERA, notwithstanding its ratification by 38 states. So it's not in there now. So the question, I think, is what process do you see for actually formally incorporating the ERA into the Constitution. And if that were to happen, what in a concrete way do you think this ERA would mean for women's lives? I think that the fact that the archivist has not added it to the Constitution really has no bearing on whether it's actually law

in the Constitution, largely because there's no role for the executive branch or the archivist in the amendment-making process under Article 5. Notwithstanding, there are aspects of Article 5 that I think we should try to question. But as we're living under it. It is interesting. A Constitution that gives the president a role in the passage of legislation, it is quite conspicuous that the Congress and the states and not the president amend the Constitution. Exactly right. So I think the fact that the Congress and the states and not the president amend the Constitution. Exactly right. So I think the fact that the archivist hasn't added it doesn't really matter because if a valid amendment was made, it will be enforceable in two years. But I do think that

the status of the deadline is a troubling question, largely because it has been part of 100 years of amendment making since the prohibition amendment in the United States. I mean, of course, some of the earlier amendments put the deadline into the text of the Constitution itself. This deadline was in the preamble introducing the ERA, and it spoke a more tentative language. That is, previous deadlines said that the amendment would be inoperative unless ratified within seven years. This deadline said that the deadline would be valid when ratified within seven years. And I think that language, as I read it, means that the deadline imposer can come back and

decide if not ratified within seven years what happens. I don't think it's unambiguous when you say when it's valid when ratified, that if it's not ratified, that it's not valid, right? So I do think that that actually, that's my understanding of why Congress actually has the ability to change the deadline and remove it. And the House voted to do that earlier this year. There's a resolution pending in the Senate that has 48 sponsors right now. So I think if both houses of Congress were to act to remove the deadline, that deadline removal is fully within Congress's powers under Article 5. And just to clarify, the power to remove the deadline or to change the deadline

would require a simple majority vote on your view, not the supermajority that's required to pass an amendment in the first instance? Well, a simple majority vote was what was taken in 1978 to extend the deadline. And so I think that it's actually I don't that because it's put in the resolution and not in the text of the amendment itself, I think that it's a simple majority is sufficient to change the deadline, although certainly we can continue to debate about that. I also think that arguably it's part of Congress's power under Article 5 to propose amendments. And arguably, Congress's, it could also just be legislative power necessary and proper to carry out Congress's powers, otherwise enumerated in the Constitution. So you could also read under the necessary and proper clause, Congress's procedural power over the amendment process. So I think those are things

that support the notion that Congress is fully within its power to remove the deadline once it's imposed one. And so I think that's what it would take probably to fully legitimize the ERA. I think that the theories that the deadline itself is unconstitutional, I think they're quite interesting. It is true that Article 5 does not mention deadlines. And I am of the few that Article 5 is quite onerous. So given that Article 5 is quite onerous, I am open to being persuaded that efforts to make the amendment process even more onerous than Article 5 may be unconstitutional. I don't know if a seven-year deadline really meets that, qualifies for me as something that's obviously so much more onerous than what's already required in Article 5 that it should be rejected.

But I do think that there's something to be said for not putting more barriers beyond Article 5 and that there might be a constitutional problem with more barriers beyond Article 5. OK, so whether that's right or a new Senate by a simple majority does remove, not extend, right? That's what the House did. It actually removed the deadline or did it extend? Removed the deadline. Yeah. So say the Senate does that in early 2021. So whatever the archivist does or thinks, on your view, we now have a 28th Amendment to the Constitution that is equal rights amendment. And what does it do substantively in your view? So substantively, I think that it can be many different things and it depends on the legislative history that's created.

But I think one thing it can do is it can correct some of the case law that proponents of gender equality believe was wrongly decided by the Supreme Court. So specifically, the Supreme Court's decisions in the 1970s that say that pregnancy discrimination by the government is not a violation of the Equal Protection Clause. I think there's a good argument that that actually violates the ERA because of ERA proponents' concerns about motherhood and pregnancy in the early legislative history. I think it could also, as we talked about earlier, invalidate governmental policies that have a disparate impact on women, because ERA jurisprudence would not be bound by Equal Protection Clause jurisprudence that excludes the disparate impact cause of action under equal protection. I think an area in which we could use some clarification from a new amendment is affirmative action and measures that promote actual equality for women. I think we've gotten to a point which was unknown when the ERA was introduced, where the Equal Protection Clause has been used to

scrutinize race distinctions and by extension, some sex distinctions that are made for the purposes of overcoming the underrepresentation of women and minorities in positions of economic and political power. So I do think that given the concerns expressed throughout the history of the ERA in the 70s, as well as in the recent ratifications, the concerns about women's underrepresentation, I think it's more likely that the ERA would support a reading compatible with, if not nudging further, affirmative action measures to overcome women's underrepresentation in certain fields. And very importantly, Section 2 of the ERA, which gives Congress the power to enforce, I think we have some equal protection law that very narrowly interprets Congress's power to enforce the equal protection

clause, particularly in the area of violence against women. And so I think that having an ERA would probably support a more expansive understanding of Congress's authority to reach sexual violence and sexual harassment. And I think that reading is supported by the significance of the Me Too movement in driving some of the recent ratification efforts. So that speaks to a lot of the doctrinal impact that could immediately follow from the ERA. And what you left off saying about Section 2, I think, sort of starts to answer the last question I think I'll ask, which is, so in addition to what it would do to change the case law, would, I take it on your kind of vision of kind of constitutional change, also provide an affirmative warrant for Congress to do more than

just potentially legislate on violence against women. It might sort of give it affirmative constitutional warrant to act in a number of other spheres, you know, to legislate on child care, affirmative protections for pregnancy beyond just, you know, undoing Godaldic, right, the pregnancy discrimination case. So what do you envision Congress potentially doing in addition? So I can see the ERA providing a firm basis for Congress to do things that are more aggressive in the area of equal pay. So I remember when Kamala Harris articulated some of her policy proposals in her presidential campaign, one of the ideas that she put forth, and it's an idea that they've implemented in France and in some of the Scandinavian countries, is an equal pay law

that requires companies to meet certain indicators. So reducing the gap and even and some of those indicators are things like how many women got a promotion after they came back from maternity leave, you know. And so every company gets a score. And if they fall below a certain amount, they have to change. They have to up their score in the next several years. And if they don't within three years or something, they get fined up to 2% of payroll. So there are policy models like that that are working in other countries. And it's a very different approach to equal pay than the one we currently have. And I think that it would give license not only to Congress, but also to state legislatures. Because one of the things I do

in the book is also read Section 3. Section 3 seems totally procedural, like two year effective date. You know, the amendment goes into effect in two years. If you see what Martha Griffith said about that in the 1970s, she said you need two years because you want state legislatures to actually take two years to actively think about what laws they need to make sure that women actually have equal citizenship, not a bridge, right? And what that means. And you see that taken very seriously in the Nevada ratification. The women in the Nevada Senate said, and they quoted some of Justice Ginsburg, or then lawyer, law professor, Ruth Bader Ginsburg's articles, suggesting that the real idea behind the ERA was that state legislatures and Congress would actually spend two years really studying closely what their law said and whether they disadvantaged women and whether they would need to do additional things to ensure that there was actual equal citizenship. And I think that kind of imperative could lead to the kinds of robust equal pay laws that I'm describing, not only in the area of equal pay, but you could also take another idea that I think some European municipalities and nations use

around gender mainstreaming. So you could make it a requirement that every agency take into account the impact on women before adopting any policy that does not seem to have to do with women or discrimination. And importantly, based on everything you've just said, I assume that you think that there's nothing requiring states or other actors to wait to start to take these steps, right? Like just the very fact that they have focused on these questions of sex equality might be enough to spur some of these changes right now. Absolutely. I don't think the ERA is necessary to get states or Congress to act in this way. And in fact, the Nevada story is very interesting because even though ratification in Nevada failed in the 70s, the aftermath of that failure was that state legislators used the ERA

debates as a jumping off point for saying, we actually need a better equal pay statute and we actually need to do better on sexual harassment. So there are actually legislative changes in Nevada, even though they didn't get the ERA. But that's also another example of the ERA quietly doing unrecognized work. Yeah, no, the many faces of legal and constitutional change is definitely sort of one of the big takeaways from the book. Julie Suk, thank you so much for taking the time today. It was great to have you.

To all of you, Julie's great new book, We the Women, the Unstoppable Mothers of the Equal Rights Amendment, is available now wherever you purchase your fine reading material. Thanks again to Julie for taking the time. Thank you to Melody Rowell, our great producer. Thanks to Eddie Cooper for our music. Thanks to all of you for listening, and we will see you next time. Thank you.