ERA And Unintended Consequences for the Left

Member Group : Lincoln Institute

The Commonwealth of Virginia ratified the Equal Rights Amendment and became the 38th state to approve the constitutional change. There are still significant legal challenges to the amendment being adopted.  Specifically, the two prior deadlines for approval of the amendment have been missed. The last deadline for approval was June 30, 1982.

Since 2016, Illinois and Nevada became the 36th and 37th state to approve the amendment but five states have subsequently repealed their approval although critics claim there is no such provision for rescission in the Constitution.

The amendment to the Constitution reads:

“Proposing an amendment to the Constitution of the United States relative to equal rights for men and women”, reads, in part:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:


Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Sec. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Sec. 3. This amendment shall take effect two years after the date of ratification.”

The question then becomes should this amendment be ratified, what happens to affirmative-action programs? Will they not be challenged constitutionally for violating the proposed equal rights amendment?

Affirmative-action was a term first used Pres. Kennedy as the result of the civil rights movement of the 1960s.  In an article from the National Conference of State legislatures they described affirmative-action as:

“Affirmative action is an outcome of the 1960’s Civil Rights Movement, intended to provide equal opportunities for members of minority groups and women in education and employment. In 1961, President Kennedy was the first to use the term “affirmative action” in an Executive Order that directed government contractors to take “affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.” The Executive Order also established the President’s Committee on Equal Employment Opportunity, now known as the Equal Employment Opportunity Commission (EEOC).”

 One can only imagine the legal challenges to present laws should the ERA amendment be ratified.

For instance, after almost 60 years of affirmative-action, how does society measure the success or failure of affirmative-action policies and do those policies discriminate under the provisions of the ERA?  The ERA seems to make it mandatory to consider the impact on other groups who have been potentially negatively affected by affirmative-action?

When one looks at the injustices and inequity in our society, one would imagine that the goal of affirmative action would be to level the playing field for those who have been dealt with unfairly while at the same time not disadvantaging those merely trying to get ahead.  The Equal Rights Amendment may actually preclude such treatment.  This potential would reverse decades of gains for women in the workplace and make workplace challenges by others that much more common.

In my lifetime I have been very fortunate to have seen many glass ceilings broken by women. I started out in a very poor family after our dad passed away leaving our mom with five children and little income.  My mom broke more glass ceilings than can be imagined and achieved great success in her lifetime despite significant challenges and roadblocks.

Our family struggled and due to our faith, a wonderful mom, a memory of a loving dad, and hard work all five of us prevailed and became successful financially.

It seems intuitively obvious that in various stages of our nation’s life people were, and in many cases, still are discriminated against because of sex and other factors. That is not the complete issue though.

The passage by the Commonwealth of Virginia of the Equal Rights Amendment may set the stage for public discourse on how members of our society are dealt with regardless of sex making it harder to break the glass ceilings than in the past.

Quotas for board of director membership, makeup of the workplace by sex, educational grants and opportunities may all be subject to challenge. I doubt seriously though that any of the supporters of the Equal Rights Amendment will welcome those challenges.

If our nation ever hopes to solve the problem of sex relations, we must solve the problems of poverty, economic opportunity and access to quality education.   Claiming the issue is just about sex, perpetuates poverty, poor educational opportunities and substandard economic opportunities for those who are poor women.

The real solutions to affirmative action are quality education and economic growth for a vibrant economic future for all citizens.

Frank Ryan, CPA, USMCR (Ret) represents the 101st District in the PA House of Representatives.  He is a retired Marine Reserve Colonel, a CPA and specializes in corporate restructuring.  He has served on numerous boards of publicly traded and non-profit organizations.  He can be reached at [email protected].