The Current Case for the ERA
Edited by Owen Andrews and Sarah Ahmad
“Mr. President, how long must women wait for liberty?” Over one hundred years ago, first-wave feminists carrying banners with slogans such as this launched an arduous campaign culminating in the passage of the 19th Amendment, securing their right to vote. Many recognized, however, that while their victory was an amazing accomplishment, it alone would not secure equality before the law. In 1923, Alice Paul first proposed the Equal Rights Amendment (ERA), a provision to the Constitution designed to explicitly declare that men and women were equal in the eyes of the law, reading, “Equality of rights under law shall not be denied or abridged by the United States or by any state on account of sex.” The United States should ratify the ERA to provide increased protections against gender discrimination, which is particularly important given the erraticism of the new administration and the potential for rollbacks on women’s rights.
Perhaps the strongest case for the ERA lies in that it would likely qualify gender for the legal review of strict scrutiny, as the courts would now have an explicit provision within the Constitution to form the basis of their rulings. When examining cases of discrimination, the courts apply one of three reviews to determine if a law is unfair: the rational basis test, intermediate scrutiny, or strict scrutiny. Gender currently resides in the gray area of intermediate scrutiny, where the government has to demonstrate that a law serves an “important” objective and is substantially related to achieving those objectives. While this creates a much higher burden of proof than the rational basis test, it still does not apply the same rigor deemed necessary for suspect classes protected by strict scrutiny. Elevating gender discrimination to this review would not only provide a greater degree of consistency and predictability with rulings, but it also presents a heavier burden to overcome when drawing distinctions between men and women, creating an additional bulwark against sex discrimination in cases relating to pregnancy, insurance standards, and parental leave equality.
Despite its shortcomings, it’s worth taking a moment to recognize the long struggle to even get here, because for most of American history, the idea that the Constitution would ensure equality of the sexes would have been deemed absurd. In 1873, the Supreme Court ruled in Bradwell v. Illinois that despite passing the bar exam, Myra Bradwell was not entitled to the status of a lawyer because the privileges and immunities laid out in the 14th Amendment did not apply to whether one could practice law. In his opinion, associate Justice Bradley went as far as to say, “The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life” and later that “the paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.”
Even after moving beyond the explicit sexism found in the Bradwell case, the courts asserted the Constitution was silent on cases of gender discrimination, as was the case in Goesaert v. Cleary (1948), where SCOTUS ruled that Michigan denying female bartenders licenses was not a violation of the Equal Protection Clause of the 14th Amendment under the rational basis test, as the Constitution “does not preclude the States from drawing a sharp line between the sexes.” This sentiment was echoed in 1961 in Hoyt v. Florida, where a unanimous court ruled that a Florida state law automatically exempting women from jury duty was not unconstitutional as it was “based on a reasonable classification.”
It wasn’t until 1971, in the landmark case Reed v. Reed, that the 14th Amendment was finally ruled to also pertain to gender discrimination. The appellant's lawyers, Allen Derr and Ruth Bader Ginsburg, argued that sex, like race, is an inborn characteristic subject to historical discrimination, and as such, should fall under the highest standard of review. While the unanimous decision agreed in part, striking down an Idaho law that gave preference to men in matters of inheritance, it did not speak to whether gender was held under strict scrutiny. The court came close two years later in Frontiero v. Richardson, when an Air Force lieutenant sought dependent’s benefits for her husband, where four of the nine justices argued to apply strict scrutiny. The four other justices who agreed on the ruling, however, opted to defer this decision, in part because Justice Powell argued that the ratification of the ERA would settle this dispute. But this was not to pass. Without an explicit provision to fall back on, the courts opted to place gender under intermediate scrutiny in the 1976 case Craig v. Boren, later heightened to a standard of “exceedingly persuasive justification” in the 1996 case of US v. Virginia.
But even intermediate scrutiny has been called into question. Prominent originalist Antonin Scalia infamously declared that “certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.” In 2025, with a conservative supermajority on the Supreme Court and a president possessing a flagrant disregard for precedent situated to potentially appoint two new justices, America should acknowledge the possibility of the Supreme Court overturning the standard of intermediate scrutiny with a single decision, as they did with abortion rights in Dobbs v. Jackson. But beyond the courts, the symbolic importance of an Equal Rights Amendment carries with it a heavy cultural consideration.
In one of his Agenda47 videos, Donald Trump proudly expressed his desire to create a new credentialing body for teachers that would “promote positive education about the nuclear family, the roles of mothers and fathers, and [celebrate] rather than [erase] the things that make men and women different and unique.” This is but one example of the rising tide of gender complementarianism—the idea that men and women are biologically determined to occupy separate but complementary social roles. Different. But equal. As evidenced by the very president of the United States lending sympathy to this ideology, support for traditional gender expectations has grown out of its confinement to the conservative religious right to the very highest levels of our government. This, coupled with a ranking of 43rd for gender equality, makes the ERA incredibly salient. Many opponents of the ERA allege that by this point, its supporters are beating a dead horse; after all, the amendment has been in the works for over a century. It came three states shy of ratification in 1977 but never actually made it. Especially in a time of what many have labeled conservative or religious revival, how could one expect an amendment rooted in what is now considered liberal ideology to make it through Congress, let alone the states?
It is because of, not in spite of, the far-right actions taken by the federal government that makes this the time for the ERA. Abortion proved to be a salient issue, costing Republicans in 2022, even in red states. Furthermore, the ERA has enjoyed bipartisan support in the past and continues to in 2025, lending to its political feasibility. In recent years, two prominent purple states (Nevada and Virginia) adopted the ERA, as did Illinois when Republican state representative Steven Andersson claimed that it was “our generation’s chance to correct a long-standing wrong.” And it is.
Women have long been treated as second-class citizens, traded around as pawns, handed off as property in marriage, told they’re too fragile for public life, and still face laws infringing on their bodily autonomy. It’s time that the highest law of the land takes an explicit stance on gender equality. It’s time for a renewed fight to ratify the Equal Rights Amendment.