Good Law | Bad Law #100 - The ERA: dead or alive and well? w/ Roberta “Bobbie” Francis & Lucy Beard

Aaron Freiwald: Welcome back to Good Law Bad Law. Today we're talking about the Equal Rights Amendment. You heard right. The ERA. Many probably think this is just a dusty old piece of history but the truth is that it's current it's happening and it's one state away from being ratified. There's a lot more to the story but thankfully my guests Lucy Beard, director of the Alice Paul Institute and Roberta "Bobby" Francis, who has been working on the ERA for the last four decades and I talk about this. What the history is what the current status of the ERA is now more relevant than ever and what the future holds for this important debate and this important issue. Should women be recognized in the Constitution. Guaranteed explicitly equal protection under the law. You won't want to miss this episode.

 

Aaron Freiwald: Today on Good Law Bad Law we're talking about what? The Equal Rights Amendment. That's right The Equal Rights Amendment. Some and some many might think that that's just a dusty old part of our constitutional history. But my guests today Lucy Beard, who's the executive director of the Alice Paul Institute and Roberta Francis who is the founding chair of the ER task force of the National Council of Women's Organizations are going to explain to us why that is not the case. Why the ERA is alive and well and closer to being ratified than you might think. So first of all let me warmly welcome both of you Lucy and Bobbie to the program. Thanks so much.

 

Bobbie Francis: Thank you.

 

Lucy Beard: Thanks for having us.

 

Aaron Freiwald: The news that brings us to this subject was certainly surprising to me and I'm deeply interested in the Constitution as a lawyer and as a former journalist writing about these topics. But I didn't know and I think was too little reported that just a few months ago in May the state of Illinois became the 37th state in the country to ratify the Equal Rights Amendment which was first passed by Congress way back in 1972 so we need to talk about that understand the background and the history and how we are this close in this moment when all that we know is going on in Washington over the confirmation of Judge Kavanaugh. Why the ERA is more relevant perhaps than ever. And so I'm really grateful to both of you for helping us understand that better and to talk about it with me today. So first of all I thought it would be great if each of you could just give us a bit about yourselves. Lucy perhaps starting with you and of course you'll need to tell us who Alice Paul was.

 

Lucy Beard: Happy to. Well first about me, Lucy Beard, I'm the director of the Alice Paul Institute and I've been here on and off for the last twenty five years. Alice Paul led the final fight for women to get the vote. She was considered the radical side of the suffrage movement. These were the women who picketed in front of the White House. Woodrow Wilson's White House that is. Who were jailed for that picketing and then went on hunger strike and or even force fed. And it's a small chapter in American history that is little known because in my view we do tend to write our radicals out of history. And whenever we can and Alice Paul in her day was considered radical in the suffrage movement and she basically was written out of history. She then went on. Most people after women won the vote felt that the battle was won. They were done and they went home but not Alice Paul. She felt that the battle was just the first step.

 

Aaron Freiwald: And that was. Just so people know, that was the 19th Amendment?

 

Lucy Beard: Yeah, that was the 19th Amendment.

 

Aaron Freiwald: And what was that was a 1920?

 

Lucy Beard: August 1920 August 26 Women's Equality Day it's always been called. But she then turned her attention because she fully believed in the power of the Constitution that the Constitution is what makes America a nation. We are brought together by our code of law not by our ethnicity or race or gender or religion but really what makes an American is following the Constitution. And she felt strongly that when 51. What is it. Fifty two percent of the population is not protected and represented in that constitution that we have a fundamental inequality in this country. So and she had been the energy behind the idea of getting the vote for women through a constitutional amendment that she had really spearheaded that effort in the last 15 years of the movement. So she wanted to use the same strategy again in order to ensure legal equality for all regardless of our gender. And she wrote, composed, the Equal Rights Amendment. And it was it was entered into Congress in 1923 for the first time and re-entered every session thereafter every two years it's reintroduced. And she worked for the rest of her life from 1923 until her death in 1977 for an Equal Rights Amendment to the U.S. Constitution. She also worked on the international stage and had a huge impact on constitutions of other countries all over the world. Germany Japan all of the African democracies have a gender equality provision in their constitution. And that's as a result of her work on the international stage for this concept. But it has not passed in the United States.

 

Aaron Freiwald: She did. She lived long enough to see the ERA passed in Congress but not long enough to see it actually ratified.

 

Lucy Beard: Right it was ratified in 1972. And I don't want to take too much of Bobby's story here but it was ratified in 1972 and was given a limit of seven years which was later extended to 10 years for ratification. And I think Bobbie will correct me if I'm wrong but I think it may be the first amendment that was given that kind of time limit and Alice Paul herself knew that that was probably scuttling it. That it would not pass in less than 10 years.

 

Aaron Freiwald: Right. We're going to talk later in our conversation about that time limit and whether actually it's valid or would need to be honored. If we would get just one more state to join the 37 who who approved this to be an amendment. But tell us.

 

Bobbie Francis: I'm sorry but before we move on Aaron I just wanted to put a friendly amendment to what Lucy said that was passed by Congress in 1972 but sent to the states then. It wasn't ratified then. Ratification is the final result when three quarters of the states approve it. So if it and in fact the first time limit imposed on an amendment was on prohibition which was a political ploy and then Congress didn't put one on the 19th Amendment the next one proposed but then it has ever since then. So it's kind of become just protocol kind of thing it's not required in the amendment process by the Constitution itself.

 

Aaron Freiwald: Right. And we'll get to this later. But this question of whether that time limit is valid or enforceable or would even be recognized by the Supreme Court should one more state step up and ratify or vote to ratify the ERA. We'll see. We'll see. That will be an issue that will be in front of the Supreme Court. But before before I turn to you Bobbie for your background. Lucy so the Alice Paul Institute then does what? What is the work of your organization?

 

Lucy Beard: Our organization was created in 1985 by a group of women who had been ERA activists in the 70s and 80s until it fell to defeat in 82 and they wanted to do something tangible to honor Alice Paul's legacy and her work for gender equality and in 1990 they purchased her childhood home an old farmhouse in Mount Laurel New Jersey where she was born and raised. Her family owned the property for 80 years and we saved the house not so much. We wanted to save it as a historic site because we all believe strongly that you value what you save and you show what you value by what you save and women's history is not is undervalued and is not saved often enough. So this organization which really spearheaded the last 30 years of a growing awareness of women's historic sites and that their value and how much we need to save them. So they saved this place, which is called Paulsdale and it's six and a half acres and it's a 200 year old farmhouse. It is a national historic landmark. One of the less than 5 percent of national historic landmarks that honor the work and achievements of a woman and they saved it, not just to create a historic site which it is and it's open to the public for tours. There's one going on downstairs right now. But also as a leadership development center as a place to keep Alice Paul's work going this was in 1990 when they decided this is a fairly new concept but many historic sites today are attempting to justify their existence through a contemporary purpose. And we were on the leading edge of that movement. So this morning right now there's a group of older women who are here for a tour and tonight there will be a group of 25 high school girls here learning leadership skills learning about Alice Paul's legacy learning the importance of gender equality guaranteed in the law and getting ready to attend a program at the United Nations next week on the International Day of the girl. So we have this bifurcated mission and do a lot of different things here. But I would encourage anyone listening to look at our Web site, Alicepaul.org, find us on Facebook, Alice Paul Institute, and get a taste of what is happening here because it's very compelling work.

 

Aaron Freiwald: That sounds great. I know we mentioned this before we started. I've got daughters and I've got a stepdaughter and I'm going to make sure that they check it out. I know they'll want to. Bobbie tell us about. Tell us about yourself in the work that you've done on this issue over what I understand is a couple of years.

 

Bobbie Francis: A couple of years times 40 I believe. No, a couple of years times 20 anyway. But thanks. I live in Chatham New Jersey and have for a long time been very supportive of Alice Paul Institute and Paulsdale and so on and have at this point become so-called ERA education consultant for Alice Paul Institute. So I'm in that capacity right now but had done a lot of work over those decades including being the founder of the ERA task force of the National Council of Women's Organizations which was based in Washington and operated for some decades itself and is no longer so active. But at the local level is how I got involved, I was a local league of Women Voters President here in Chatham in the late 70s I guess with two young kids at home and somebody asked if I had information about the Equal Rights Amendment this was at the time the ERA had been voted out of Congress was being ratified by a number of states in fact it came barreling out just as the 19th Amendment had. And I guess it was 1918 it came out of Congress and then in both cases there are amazing parallels in both cases the opposition to equal equal rights for women came out of the woodwork and raised all kinds of in fact similar questions up to and including it would take women off their pedestal et cetera destroy the family. And this and that but they really were in both cases strong economic reasons behind it social cultural religious psychological. There are all kinds of reasons for opposition to this these advances anyway.

 

Aaron Freiwald: The interesting

 

Bobbie Francis: I was just going to say that's where I started on the ERA and had my feminist click if you might call it. So ever since then I've been keeping on keeping on.

 

Aaron Freiwald: Well I just wanted to jump in because what you were just describing you know concerns about the impact on the family and taking women off their pedestal and you know whether women even had the mental capacity to handle this. You know I couldn't really tell whether you were talking about arguments that were made back at the time that our country was talking about giving women the right to vote or whether you were talking about the Equal Rights Amendment. Many decades later and I think there you have it.

 

Bobbie Francis: Yes that's right. And because they were. I have said it's like somebody pulled out the old script and that didn't even bother to change it much. When they pulled out the 19th Amendment script and said oh let's do this for the ERA. It is astonishing.

 

Aaron Freiwald: Well let's look at this. This is really astonishing to me because we know that. And just in the few minutes we've been talking so far we've established that the ERA passed Congress but has not yet been ratified and therefore it is not part of the Constitution. This very simple very simple language that states in Section One language that Alice Paul wrote 'equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.' A very simple declaration. And we know now our listeners know that this is not yet part of the Constitution. But when you look at polls of what people think and you cite some of this Bobbie in some of the materials put together on this. An overwhelming majority of Americans think that we already have an equal rights amendment in the Constitution. So there is this great disconnect between what people think and what is. I mean why do you think that is?

 

Bobbie Francis: Well I don't even know what number one reason would be except people are so engaged with all of the things that we know keep us all running around and based on our own interests and our needs and what comes up in our lives that I think people who care about learn about and got get interested in equal rights for women equal status et cetera. Are the ones who understand that we don't have it and most people think Oh there have been tremendous advances in the last 50, 60 years in the status of women women's rights et cetera. And so they assume that it's you know it's the kind of wide open field for those advances. And in fact those of us who have worked on the Equal Rights Amendment and its parlous lack of it in our Constitution when it is as Lucy said in so many other constitutions in the world is perfectly implemented of course in virtually all countries. But at least there is that avowal of equal rights on the basis of sex. The people who think that we have that guarantee just sort of de facto because they've seen all the advances don't know until they're actually told or understand and discover that we've done these in spite of not having an Equal Rights Amendment underpinning it. The foundational I say law but I mean a constitutional guarantee getting it in the Constitution that's the foundation for not only having these advances guaranteed making sure but making sure that we don't have them removed, setback. I mean we know in recent years we've been talking about is birth control something that we want to guarantee legally. I mean issues that we thought were long since taken care of and in fact the several constitutional and supreme court decisions in the 60s about birth control for married and unmarried people were not something anyone thought would be revisited. And yet without this additional guarantee of equality of rights under the law. Thank you for reading it shall not be denied or abridged having it in the Constitution is the sine qua non for not being set back.

 

Aaron Freiwald: Well also I mean those Supreme Court decisions that you're referring to from the 60s and then in the 70s you know other reproductive rights decisions including Roe v. Wade the Supreme Court didn't have an ERA, didn't have equal protection on the basis of gender to rely on the 14th Amendment which which talks about equal protection doesn't by any in any specific way include women. Right. And so they had to turn to other ways to find a right for birth control and a right for other reproductive rights including abortion. They had to find a right in the in the in the language of privacy.

 

Bobbie Francis: So right.

 

Aaron Freiwald: And we know we know that right to feel very uncertain about the future of Roe versus Wade for example because there is this ideological, judicial, legalistic debate about whether that's a valid basis for those rights to be found right. So these you know I think that's a good case for for for trying to understand what the Constitution really does say and what it doesn't say right now.

 

Bobbie Francis: I think oh go ahead, I'm sorry.

 

Aaron Freiwald: No go ahead please.

 

Bobbie Francis: Well I was just going to say around Roe v. Wade I've done some work on this too. And I am fascinated by the fact that the decisions we were alluding to in the 60s the well Connecticut versus, Griswold versus Connecticut and Baird versus Massachusetts. But these two decisions around the ability to have access to birth control, contraception without government interference set the stage for the right of privacy, in quotes. It's not that Roe v. Wade was written out of you know created out of whole cloth.

 

Aaron Freiwald: That is true.

 

Bobbie Francis: The support of these decisions in the 60s around access to contraception without state interference are the underground, underpinning I should say for the quote, right of privacy and Roe v. Wade. And I think listeners should understand that doesn't just mean oh I have the right to do what I want in my own home. You know sneaky blah blah blah, right of privacy means and correct me if I'm wrong Aaron, the right to have do something free of governmental interference.

 

Aaron Freiwald: That's absolutely right. And Justice Kennedy was a big proponent of that not just in the abortion related decisions that he was a very crucial part of but in other areas here he was the principal author of the Obergefell decision on same sex marriage. And you know there's that there's a strong current that runs through Supreme Court decisions before Roe versus Wade certainly in Roe v. Wade and then in many cases after that that talks about this sort of this circle around an individual that is within that circle are the most fundamental and personal and intimate choices and decisions that a person can make and the government should not tread past that point. You know, should not to tread on those fundamental, individual, private, personal intimate liberties.

 

Bobbie Francis: Right. I think it's I don't know if it's expressed exactly this way in the decision but it's that right is the right of a woman to determine whether or not to bear a child.

 

Aaron Freiwald: Right. That's right.

 

Bobbie Francis: And so without spending some more of the ERA time on this but they are they are interrelated but not in a way that opponents challenge the ERA and oppose it by saying it would mean abortion on demand. No. It really is not in and of itself. On the face of it and in the direct application of legal principles it's not very much about reproductive rights except in the sense which has not been established legally that for a woman to have the ability to exercise her equal rights she also must have the ability to determine personally under her right of privacy, whether or not when whether or not to bear a child it's not something that the ERA is integrally involved in legally.

 

Aaron Freiwald: Well and again the ERA really is about equal protection under the law. This is something we talk about all the time many speeches from politicians on all sides of the political spectrum. We'll talk about that being the defining characteristic of our Constitution that we are all equal in the eyes of the law. But but of course you know there is a history that has been evolving here. I mean the Constitution, what when you know when first passed in 79 1789 of course didn't didn't recognize racial equality we had to have a civil war to get to that point. It didn't recognize the rights of women either. And that's why the right to vote in the 19th Amendment was so radical. As you as you've said Lucy but let me come back to you Lucy on that because I want to get us to the point where we can understand where we are today with the Equal Rights Amendment and to do that I think you know I want to turn back to you and the story of Alice Paul and the ERA and why it why she devoted her life to this and felt it was so important you know. You say she was a radical in the 19 teens and 1920s. But yesterday's radical. May be today's you know visionary. So how did she see and why was this seen as something necessary to recognize. Not in a state law here in a state there but in the Constitution. Why was that something so important to have?

 

Lucy Beard: Right, well I think she felt that our foundational document, the Constitution, should reflect our population and felt strongly that it didn't, that it was representing men and not women. Women are not protected under the Constitution as you were both just discussing. But she also I think she was an astute politician or political strategist. And the tactics she used in the suffrage movement were very effective at getting publicity for the cause and keeping it on the front pages of the newspapers. And she turned those tactics to a much longer probably, harder to graph campaign. I think the Equal Rights Amendment was always something that was just a little more I don't know academic, then voting. Everyone could kind of understand voting. But the idea of no we need this in the Constitution for legal reasons is just a step higher in terms of what the average person walking around will understand and comprehend and act on. So I think she knew she was in for a longer campaign than what she had been involved with suffrage. In the end it is taking longer than suffrage. We got the vote in 75 years and we're almost up to 100 years for the ERA. So and then she was very she was, I hate using this word but she was more or less marginalized or sidelined to the 40s and 50s. I would say and I'm hoping that Bobbie will come in with another friendly amendment if I'm mistaken here. But I think that she stayed single mindedly focused on gender equality guaranteed by the law and as the second feminist movement and second wave of the feminist movement was really building steam in the 60s and 70s it was being translated to, I'll call them domestic issues like child care like pay equality like all these different things in your daily life that people might find easier to relate to but they couldn't relate that to the ERA. I think today people are are starting to figure it out and are and are realizing Oh there's a direct connection to my legal rights and the fact that I get paid less because of my gender or the fact that I don't have access to quality child care. So so I think we are starting to make that case more clearly for people. I don't know that Alice Paul ever did that very effectively. She was frustrated in the second wave. She was also I'll point out getting up there in years and probably a little tired that she was a little frustrated saying that they were diluting their efforts by focusing on so many different issues. And if they would just focus on one gender equality guaranteed in the law the other things would fall into place. Because once you have that guarantee then you have you have your day in court literally you know you can go to court and claim gender discrimination if you have a a foundation of law for it.

 

Bobbie Francis: I think. Well done. No friendly amendment per se but I'll just add a few thoughts, that in fact after the day after I should say the vote first was attained in 1920. Then some people did just say we've done it we're going home. Others said now we have to keep working on things like what they had at the time already begun. And that was some protective legislation, labor laws for women limiting number of hours and certain stipulations that women couldn't work at x y z under conditions. And so there was a split almost immediately when the National Woman's Party which Alice Paul was leader of during the suffrage struggle proposed Equal Rights Amendment because there was the fear that all of their work on protective laws to make working life better for women would be undercut had to be done away with. I keep wondering why they also you know the argument wasn't made that men deserve these protections too. Let's make a gender equal and no man can work more than 50 hours a week or whatever it was at the time. But in any case there was a split within the progressive women's rights community over whether we want this Equal Rights Amendment or not. So that persisted for a number of years and then the World War II and I'll call it the doldrums. You know they were the populace was otherwise engaged and it was in the 60s I believe when I would say the current awareness of that the connections that Lucy described first started growing and that's when the ERA got a lot more support got out of Congress in 1972 went to the states and got 22 ratifications within the first year of the necessary 35. I mean at 38 the 35 number comes in next because after a few years of it's barreling through. So it looked like it would be ratified you know within some reasonable number of months the opposition surfaced and it was again some of it was cast as social. You know the women don't want this etc. etc.. it's going to challenge, destroy various things when really behind it was a very very long lived traditional opposition to equality for women and in economics and so on.

 

Aaron Freiwald: And why. Maybe we have to go back to that time period and we're we're looking as we talked today through 2018 eyes. But you know back in the 1970s you had so many social changes that had already taken place. You mentioned World War II. I mean Rosie the Riveter women had to go into the workforce to fuel the economy. While the men were overseas you know fighting for freedom. That was that brought about a tremendous social change. You had the you know the you know the Supreme Court's focus on individual rights in a way that it hadn't up until then and some of the some of the decisions we've already talked about the Civil Rights Movement expanding. You know rights for black Americans and then the rise of the women's movement. So what what is the opposition. What is wrong through the eyes of 1970s states confronted with the opportunity to ratify this amendment. What is the opposition?

 

Bobbie Francis: I forget which law of Newton's it is it is that for every action there is an equal and opposite reaction. Some of it is. And it's not equal and opposite literally the social field that I used the image or metaphor in my mind image of a spiral going up a coil and I think that's the way advancement works politically you go forward. And then there's stuff pushing you back but you're one level up and you go forward and you're pushed back that you're level up and I I like that image it helps me feel like it's an explanation for what we face. Because when I had my click around the ERA in around 1977 I asked perhaps the most naive question of my life. I said What's to argue, equality of rights should not be denied and consent. What's the argue. Right. And then when I started getting into it and got angry that they used the same arguments almost the same arguments around suffrage and then you look at background. And again it's not just women or men or it's not just race or anything but you look at the arguments against the abolition. You know we we live in a world where there are a lot of people and there's a lot of energy in the direction of progress and equality and justice and so on. And there's an awful lot of energy against that from the people who hold power in the hierarchical system.

 

Aaron Freiwald: Well I mean I think to you know you can look to the issue of diversifying the military. I think is a great example of this. When I think it was Truman who desegregated the military and of course everyone thought the sky would fall and that the military would fall apart and we wouldn't be able to have dominance anymore and of course that didn't happen. And then they won. You know when women. You know when there was a push to have women included in the armed forces oh my god that how will that ever be. I mean the men and women together that can't exist and women can't fight all these things and of course we're OK. You know.

 

Bobbie Francis: The sky hasn't fallen.

 

Aaron Freiwald: Right but there is this the the sky is falling when there is some major change perceived in the order of, in this case in the order of relationships. Right. And that's what people are afraid of but here we are today. We're we're still talking about equality in many gender related subjects whether it's equal pay, sexual harassment. You know we're seeing that play out in in in our politics right now and in so many other ways and you know is is this perhaps the time right now even though probably many people have figured that either we already have an equal rights amendment or figured it's just a footnote in history. But it is now perhaps the time.

 

Bobbie Francis: I would say yes. If you read now as it's going to take still some few years. But I do believe it was 1982 when that extended deadline Lucy referred to expired but immediately the Equal Rights Amendment was reintroduced. Every in every session of Congress since then and there are now this is something to get into briefly at least. There are two I'll call them routes to ratification that advocates are working on. The first is just starting over reintroducing any equal rights amendment in Congress. Representative Carolyn Maloney from a district in Manhattan has been the point person on that and a strong advocate for a number of years now 20 years plus I believe and actually Senator Menendez from New Jersey has the Senate version of that introduced in this current Congress. But since the mid 90s there has been a second route and it is unprecedented. It has got good legal arguments behind it but it's untrodden constitutional ground.

 

Aaron Freiwald: Hold on one second though, wait before you get to the second let me just finish understanding this first route.

 

Bobbie Francis: OK.

 

Aaron Freiwald: So if I understand the argument here would be OK. Congress passed the ERA in 1972 but enough states didn't ratify it or vote to ratify it in this timeframe that Congress imposed and therefore the argument might be that the ERA died and to start over again, you'd have to have Congress pass it again and that would somehow start the clock over again for states to step forward and vote to ratify this. Is that right?

 

Bobbie Francis: Very very well explained, yes article five in the original Constitution gives you that process. And so if one would say well the first process with the ERA didn't actually get achieved by the deadline. OK so we can start. There's nothing that says you can't reintroduce it and pass it again out of Congress requiring a two thirds vote in each house Senate and House of Representatives and then requiring three quarters of the states and with 50 states, that means 38 threequarters must approve it. They call it state ratification and then if they 38 states approve it that satisfies the ratification process and it's become part of the Constitution. It would be the twenty eighth amendment. Let us hope.

 

Aaron Freiwald: And as you said and I just again want to make sure this is clear. There is a bill pending in both houses of Congress right now.

 

Bobbie Francis: Yes.

 

Aaron Freiwald: That would do just that. So if Congress would choose to do so they could vote and pass bills currently pending in the House and currently pending in the Senate and then it would be back to the states to take up the issue of  ratification. OK.

 

Bobbie Francis: Now let me just. Yeah and little final comment on that is given the way there has been gerrymandering, voter suppression... don't get me started, over the last ten years based on Republican control of the process in a number of states. State legislatures are more conservative than they were in the 70s. So that would be a process that in theory sounds OK let's get this done. It would be very very difficult right now to have 38 states state legislatures ratify it.

 

Aaron Freiwald: Well yeah, to have to start all over again when Congress passed it and 37 states have already voted to ratify it that would for sure would be a very major resetting of all the effort. But I'm just. I want to just.

 

Bobbie Francis:  It's the cleanest, the most by the book way let's say.

 

Aaron Freiwald: Well and you know we do have elections coming up every two years. We have an election coming up in November. People are very energized and all you know all across the political spectrum right now. You know women are you know great focus of all this all the discussions going on right now. What are women thinking what are this subset of women thinking. What are they going to do. And I just wanted to be clear that there is this issue that if they chose to they could they could make an issue. Not just women, I mean women and men of course but voters could make an issue let's say.

 

Bobbie Francis: Absolutely. And in fact voters could make an issue around decisions of who goes into their state legislatures in connection with the second possible route to ratification and that is that you got a few minutes I will I will try to make as short as possible but in the mid, in 1992 actually an amendment went into our constitution something to do with Congress collecting pay raises that it votes itself. And that had first been sent to the states along with 11 other proposed amendments 10 of which became the Bill of Rights for heaven's sake. It came out of Congress in 1789 and Congress sent 12 things to the states 10 of which became ratified as the Bill of Rights two of which didn't get ratified. And this was one of them. And in the 90s it got picked up again. They accepted the original. I forget now how many there were ratifications from the 1700s, they added to it to get up to the 38 required and that's now in the Constitution. The difference with that and the ERA is that as I had said we talked about the fact that time limits were imposed on ratifications until in the teens. I don't remember you know did the year of prohibition anyway 19 15 16 17 something like that. So that time limits.

 

Lucy Beard: 19

 

Bobbie Francis: Was it OK.

 

Lucy Beard: I think it was 19, right, before 20

 

Bobbie Francis: Yes it was the 18th Amendment that the Congress debated and arbitrarily chose seven years as the time limit they put on that I say it's like the Seven Deadly Sins seven brides for seven brothers. Seven is just kind of a magical number. And so that was not imposed on the next one that went out to the state and that was the 19th Amendment for women's right to vote. That was ratified in 1920 with no timeline attached. And then just I don't know the logic behind it but they decided oh time limits are such a bad idea and they have put them in every other one since then. However sometimes they put it in the words of the amendment itself if you go read the Constitution you'll see a few amendments that have a time limit in its words which of course makes has no relevance after it was ratified that anyway there it is in the Constitution.

 

Aaron Freiwald: Let me go back and understand this because this is really I think this is not only historically fascinating but brings to the present that all of what we're talking about. So we talked about the first path to passing the ERA which basically would be to start over and follow the constitutional rules for how you amend the constitution. The second path which is what we're talking about now is to take all the work that's already been done. The fact that Congress passed the ERA in 1972 and that as of May of 2018  37 of the 38 required states have voted to ratify the ERA and in that case would I guess we would do and we should talk about the specifics as we would look for 38th state to vote to ratify. And then as far as you'd be concerned the ERA's part of the Constitution. And then there's a but and the but is that there's this a time limit that was imposed. And then the but to the but is is that time limit valid. And what you're pointing to.

 

Bobbie Francis: Yep. Well outlined. Yes

 

Aaron Freiwald: Is this historical precedent that the what we know of as the Bill of Rights the first 10 amendments to the Constitution, the First Amendment, the Fourth Amendment, all those amendments that became the Bill of Rights really was sent out to the states as 11 amendments originally. And one of them...

 

Bobbie Francis: 12 actually, yeah.

 

Aaron Freiwald: 12 and the one that you're referring to the twenty seventh amendment. I don't know why it took and took as long as it took until 1992 for that to be ratified because it seems like again everybody. If you just tell them that this is the idea they say absolutely which requires that before Congress can give itself a pay raise. You have to have an election intervening which would I guess give people the opportunity to vote out of office anyone who voted for themselves to get a raise.

 

Bobbie Francis: That's the premise, although here's an extra unfriendly footnote. They do it now by cost of living adjustments that they contend doesn't apply. You know this amendment doesn't apply to but go on.

 

Aaron Freiwald: Ok. Well they found a way around it but anyway.

 

Bobbie Francis: That's right.

 

Aaron Freiwald: The idea here is that that that allowing all this passage of time it was over 200 years right from the time the what became the twenty seventh amendment on this pay raise issue became part of the Constitution it was over 200 years between the time it was sent out to the states and by the time that was finally ratified. Now you're pointing out that back in those days in the early days of our country they didn't have a time limit put on the amount of time states would be given to ratify and they did do that here. But let's say...

 

Bobbie Francis: As you have pointed out too that the there could be a debate about whether time limits are the ultimate trump card or whether something could prevail over a time limit. As for instance the need for an amendment or something there it's going to be a very interesting for constitutional scholars and anyone else interested.

 

Aaron Freiwald: But can you imagine. Can you imagine as a political matter especially in the times we live in right now. If a 38th state, and I do want to talk about who you think that 38th state might very well be, but let's say a 38th state would vote to ratify the ERA as Illinois did only a few months ago and Nevada did only a short time before after. If a 38th state did so and it and now we say and everybody stands up and says Hooray we have an ERA. But the Supreme Court the Supreme Court of the United States with all the focus.

 

Bobbie Francis: Yes bring it on home Aaron.

 

Aaron Freiwald: Wait just a second. You know you're just a little late yet. I don't know that I think that would be incredibly You know charged you know politically very difficult decision for the Supreme Court to make. I'm not saying they wouldn't but it would be it would.

 

Bobbie Francis: Right.

 

Aaron Freiwald: You know who knows what might come from that. So.

 

Bobbie Francis: Right.

 

Aaron Freiwald: All right.

 

Bobbie Francis: Well let me can I just point out

 

Aaron Freiwald: Go ahead.

 

Bobbie Francis: One distinction here the 35 states. There were 35 states that approved before the 1982 deadline. And so the ratifications in question for challenge if you will will be Nevada last year it's Illinois in May of this year.

 

Lucy Beard: It was

 

Bobbie Francis: For next year. Pardon?

 

Lucy Beard:  I was confirming Nevada was in 17.

 

Bobbie Francis: Oh yeah. Oh thanks. Yes. Right now the states with most active advocacy efforts and perhaps most promise Virginia and North Carolina with Virginia a little better positioned at this point in the construction of their legislature little closer to parity with Democratic and Republican. North Carolina has elections. Of course of this year and there is every expectation it will look better next year but not necessarily as close as Virginia to having democratic input if you will. And the third is sort of out of left field if you're looking at a map is Arizona. I'm joking, you know off in the West. Arizona has a fairly active advocacy effort there. There were 15 states. Obviously if 35 ratified 15 didn't. Right now two of them have ratified since but their ratifications will be challenged legally in some way or other. And that third state if we get the 38 there's a whole process and I would recommend people go to, you can read more about this on equalrightsamendment.org which is a Web site that is Alice Paul Institute's ERA Web site. I have managed it and have information up there. But the FAQ, frequently asked questions page gives you a lot more background on this if you're interested, equalrightsamendment.org. There are factsheets on the home page that you can link to. And so you can get a lot more information about this but it's going to be very interesting as the May you live in interesting times. Very interesting to see what happens because you're right Aaron. It would be a very very tense debate, decision for the court to say oh you have... tap the advocates and the head and say you did really great but you didn't. There is a long article that you can read linked to on that web site that explains I think very lucidly why a claim can be made that ratifications now even though there was an arbitrary deadline set that ratifications now have more constitutional underpinning for their validity than opponents would say.

 

Aaron Freiwald: So these are the

 

Bobbie Francis: A lot of background.

 

Aaron Freiwald: And we'll put we'll post a link to that to Bobbie on the description some people can just click on it. When they go to to our podcast episode and it can click through I'll take you right to that Web site.

 

Bobbie Francis: Oh excellent.

 

Aaron Freiwald: All right. So as within the deadline 35 states voted to ratify the ERA 15 did not.

 

Bobbie Francis: Right.

 

Aaron Freiwald: And these are the 15. Just so people can hear the names of the states that did not vote to ratify Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma South Carolina, Utah and Virginia. And then since the deadline and really in the last two years Nevada and Illinois have joined those 35. So why... this wasn't really clear to me if you had to pin your best hopes on one state to become the 38th. You've you've singled out Virginia and North Carolina possibly Arizona. And explain for me why. Why do you think those states may offer the the last 38th state on this issue.

 

Bobbie Francis: Well 12 of those 15 states have had ERA ratification bills introduced in one or more of their legislative sessions since that deadline. And so Virginia in particular has a track record of having introduced it in a number of sessions for the state legislature to ratify it. And in four or five of those cases the state Senate in Virginia did pass it, the ratification bill but Republicans strongly controlled their house of delegates. And the man who controls the committee out of which the ERA would come just kept a lid on it never even allowed it to come out of committee for a full floor vote in the Virginia House. Now that house I don't know if any Virginia like New Jersey has their legislative elections in an odd year. They had them last year and there was an incredible neck and neck battle in Virginia for control of the house and it ended up down to drawing lots if you will to see which party controlled because there were there was a mix up around congressional or not congressional about notifying voters giving them sample ballots and such. And so there was a disputed process in two election districts they drew lots. The Republican drew the right little shit out of the hat. And that's how the Republicans control the Virginia House. And so given as you've referred to more than once Aaron the current climate around me too, Kavanaugh et cetera et cetera it may be possible to get and get it out of the Virginia Senate and House next year. And North Carolina has had a tremendous advocacy effort. They're the one group that set up an ERA Alliance a woman named Rina Grall and Roberta Madden and various people in North Carolina have done a tremendous job of creating a unified advocacy effort there. And North Carolina's legislature is less likely less marginally Republican and conservative it's more so but they still have so much good energy there that that's a possibility. And then in Arizona they've had bills introduced. Here's a vignette from history. I have a new York Times or Washington Post article I forget which right after ERA came out of Congress in 1972 and it quoted in Arizona. Arizona wanted to be the first state to ratify but because of the time zones Hawaii became the first state to ratify and a state legislator, state senator rather there was quoted as saying you know some of the energy went out of the effort then and maybe it's only a 50/50 chance now that Arizona would ratify that state senator was named Sandra Day O'Connor.

 

Aaron Freiwald: Oh my goodness.

 

Bobbie Francis: And the reality is Arizona has not yet ratified.

 

Aaron Freiwald: Wow.

 

Bobbie Francis: But they have a very good effort going there too and so even in some of the other of the 15 states there are good efforts but these are the ones that we are looking at first and foremost.

 

Aaron Freiwald: Let me let me ask you Lucy looking at where we are. If you were asked and you will because I'm going to ask you right now what do you think. What if people were to hear this and say wow I I want to do something about that. I want to I want to learn more I want to find out what I can do. What would you say to that person.

 

Lucy Beard: Well I think their first stop should be that equalrightsamendment.org website to learn something about what's going on. Look at our organization alicepaulorg. Look at the ERA coalition. There are organizations across the country that are working on the issue of the Equal Rights Amendment. So I think what what what helps is to give yourself a little education through the websites and then contact the organization that's near you. And we're trying to create here a database of those organizations so that it can, equalrightsamendment.org can be a one stop shop. You can find out about the amendments and find out about the groundwork going on. We have a tool kit on our website, alicepaul.org,that you can use to start something in your own community. And that that's all downloadable tool kit that gives you some materials that help you educate yourself and others around you. And some PR materials as well. So I think there's a lot I mean it's just amazing. Now with the internet how much education we can do about people having to leave their own homes. But then the real hope is that they will leave their homes get involved get involved in marches get involved in lobbying their congressional reps and finding out what they are what their stand is on the ERA. Our own girl's leadership council here went and visited our local congressman in their Washington offices and put their feet to the fire. You know are you signed on as a cosponsor of the ERA and if not why not and and these 15 year old girls really asked for some answers from our congressman about why he wasn't supporting this was what he had against equality. And it was it was they've now continued that conversation through there through his Facebook page.

 

Bobbie Francis: Out of the mouth of babes right.

 

Aaron Freiwald: Right. Right. Yeah they continue to remind him that you know Alice Paul was a constituent in your in your district. You need to look at this legislation and get on board with it. So they're you know they're doing right by their their namesake and really taking it to the people in power and demanding answers. For why they, what they have against equality.

 

Aaron Freiwald: Well and I've been on I've been on the website both of them and you're right there is a lot of material there. A lot of the things we've talked about and more. Why. Why do we need the ERA. What types of issues would an ERA offer better. You know even more solid protection for. What is that history. What is the background. Where do we stand there's a lot of information there and I to encourage everybody to go check it out and learn more.

 

Bobbie Francis: Can I just add the final legal issue there which you know we could talk at length about but there are different levels of so-called scrutiny that a court applies when they look at a claim of discrimination on the basis of sex or other things and discrimination claims around race religion national origin like that get what's called strict scrutiny. They have to it has to be constitutional. That kind of differentiation the discrimination if you will has to have a...now what I can. Yes it has to have a necessary relation to a compelling government interest in order to be upheld as constitutional so you can't make laws around race differentiating between treatment of groups on the basis of race or religion without having it be a compelling government interest that's being served. And what you're doing has to be necessary to advance that interest. Sex is not in that category yet. You can discriminate on the basis of male female sex and it doesn't have to be that compelling a connection to a government interest. It can't be just oh yeah that's logical that's rational. It's an intermediate level of scrutiny it has to substantially be related to an important government interest. But the Equal Rights Amendment would put sex into the category of requiring strict scrutiny in court to be upheld as constitutional. I think that's really key for people doing dealing with this legally to understand that's not just a minor argument that's compelling if you will no pun intended.

 

Aaron Freiwald: Right. It is the ultimate protection to make sure that any law or act or regulation that would discriminate on the basis of gender would have to meet the highest level of scrutiny by our courts as it is applied in cases of discrimination on the basis of race. But also you know just to wrap up on this I think to go back to something Lucy was exclaiming about Alice Paul and why she felt going back to the early part of the you know the 1900's when women were still fighting for the right to vote is the idea that we have a constitution that reflects not only who we are as Americans but reflects us as a country to the rest of the world. And how is it the case that there are constitutions in so many other countries that recognize this basic principle of and not just talk about it but it's in your document it's in your founding document the Constitution so many other countries have this. But the United States of America doesn't and just it just kind of just kind of strains belief at this point that it doesn't.

 

Lucy Beard: There you go.

 

Bobbie Francis: But listen to him, it's true.

 

Aaron Freiwald: So there you have it. And it is a fascinating history but it's also a very current issue and I hope I hope people will go to your website and check out what's they are and all the information you have. And Lucy Beard and Roberta Bobbie Francis thank you both so much for being on Good Law Bad Law and for talking with me about really appreciate. Thank you.

 

Both: Thanks for having us.