APU Business Careers & Learning Podcast Politics in the Workplace

Podcast: Efforts to Enshrine Equal Rights in the Constitution Pick Up Speed

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By Cynthia Gentile, J.D.Faculty Member, Dr. Wallace E. Boston School of Business and
Krista Joy Niles, founder, ERA Advocacy Committee at the Alice Paul Institute

After 98 years, the Equal Rights Amendment was finally ratified by 38 states, qualifying it for full ratification the U.S. Constitution. But will it become an amendment? In this episode, APU professor Cynthia Gentile talks to Krista Joy Niles, Pulitzer Prize winning photojournalist, and founder of the ERA Advocacy Committee at the Alice Paul Institute. Learn about the history of the ERA, the anti-ERA movement that prevented ratification by states in the 1970s and 80s, and what led to the final ratification in 2020. Also learn what legal scholars contend is the path to full ratification of the ERA to the Constitution and the impacts the ERA would have regarding equal pay, equal access to healthcare for both genders, and more.

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Read the Transcript:

Cynthia Gentile: Welcome to the podcast. I’m your host, Cynthia Gentile. Thank you for joining me once again. I’ve been anxiously awaiting speaking with today’s guest, because our discussion is so timely and so important to business leaders, human resource managers, and women across the country.

Today, my guest is Krista Joy Niles, a Pulitzer Prize winning photographer who blends her communication skills with her passion for education, social justice, and gender equality in both her professional and personal lives. She founded the advocacy committee at the Alice Paul Institute to advance the fight for the Equal Rights Amendment. She currently serves as editor of the “ERA In The News” newsletter, and manages the website equalrightsamendment.org.

Krista holds a bachelor of arts in photojournalism and a master of arts in art history. Her research focused on women who disrupt gender norms in the art world. With more than 20 years of experience in communications. Krista has worked for The Associated Press, the Lincoln Journal Star, the San Antonio Express-News, and The New York Times, where in 2001, her work contributed to the staff winning the Pulitzer Prize for breaking news for their coverage of the September 11th attacks.

Since 2006, Krista has focused on grassroots community building, working for nonprofit organizations focused on social justice, dedicated to fighting for gender equality, education, leadership development, diversity, and voting rights. In her free time, she designs and sells gift wrap and home decor. Welcome, Krista. Thank you so much for taking the time to talk with me today.

Krista Niles: Thank you so much. I really appreciate the offer to be here and talk about my advocacy for the Equal Rights Amendment.

Cynthia Gentile: Your work around efforts to achieve gender equality is really so inspiring. I have so much I want to talk to you about, but today we are going to focus on the Equal Rights Amendment. You have special expertise in this area not only because of your personal and professional efforts to amplify women’s voices in all kinds of spaces, but also because you spent several years working for the Alice Paul Institute, a nonprofit based in New Jersey that honors the life and legacy of the author of the Equal Rights Amendment, Alice Stokes Paul. I know this is a tall order, but can you give us a brief history, or her-story, on the birth of the ERA movement?

[Podcast: The Living Legacy of Alice Paul and Her Work to Develop Women Leaders]

Krista Niles: Absolutely. I am going to give your listeners a quick introduction to who the author of the Equal Rights Amendment is. Her name is Alice Paul, and she is one of those unsung heroes whose story got lost to history, partly because she was always pretty reticent to be part of the story herself, and she was really excellent at telling the story.

Alice Paul is a suffragist in America, born in New Jersey in 1885 to a Quaker family. Quakerism is a religion that’s kind of prevalent on the East Coast, and they really value gender equality. It’s one of the tenants of their faith. That really infused a lot of her upbringing, and so she grew up understanding the value of the equality of the sexes. And then of course, she moves into a world that is very imbalanced in that way. That really motivated her to spend her entire life fighting for gender equality.

In her teens and early twenties, she really became infatuated with the cause of equal voting rights, and that’s how she became a suffragist. So she worked in organizations and in different associations to advance the work for voting rights and suffrage for women in the U.S. She was integral to the fight that got the 19th Amendment ratified to the constitution, and that is how women in the United States gained the right to vote.

Granted, that right to vote was not extended equally to all women across the country, but that’s another podcast for another day. Today, we’re going to talk about the ERA. In 1920, after the 19th Amendment was ratified, Alice Paul understood that the work wasn’t done. There was so much more to be done to make sure that women had constitutionally protected legal equality in the U.S. So she took her two law degrees and she wrote the Equal Rights Amendment.

It was originally called the Lucretia Mott amendment, and it was first introduced to Congress in the year 1923. It stayed in that space in that same language from 1923 until 1943, when she revised it, updating the language a little bit to be closer to what some of the more contemporary ratifications like the 14th had said.

So the first section is really the part that really has always fired me up, and it is, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” That really has been a real lifelong motto for me, having grown up in a family of five daughters. So just gender equality was just one of those things. There wasn’t gender separation of roles in my family. You fixed the leaky toilet. You changed the oil in the car. Whatever it was. You’re doing dinner, it doesn’t matter. It was all how it worked in my family.

But years later, forward me to 2016, the crazy election that was happening at that time. I moved to Philadelphia after grad school and was looking for work, and I came across this amazing opportunity to be a marketing communications person at Alice Paul Institute. Did not really know much about Alice Paul. I had heard of her. I understood that she was involved in voting rights. I did not know about her work on the Equal Rights Amendment.

So when I took the job, I was really motivated to find a way to push that agenda a little bit forward. So from 1923 to 1972, the Equal Rights Amendment has been introduced to Congress, and that was one of the first things I learned. It was like, holy cannoli. That is a long period of time for a piece of legislation to continually be introduced to Congress.

I’m going to do a quick tangent for your listeners who don’t know how amendments to the Constitution work. So legislation has to pass both houses of Congress. The same piece of legislation has to pass both houses of Congress, and then once it does, then that piece of legislation is sent out to all the state legislatures, and the state legislatures have to vote to ratify it to the constitution.

It often takes two thirds of the states for that to happen. That’s a lot of states when you think about it, and so that’s a lot of state legislatures that you have to impress upon the urgency of why equal rights is important.

So it wasn’t until 1972 that both houses of Congress did, in fact, pass that piece of legislation and sent it out to the states for ratification. And then, here’s a really interesting history that starts from there, but I thought I would pause and see if there was a follow-up question.

Cynthia Gentile: Yes, thank you. That’s a great overview of a lot of both legal and cultural time periods. So my question is, we know that the movement took new shape in 1972. Why do you think that was the moment where things began to pick up speed?

Krista Niles: The 1970s were such a phenomenal period of time for women and women’s rights, the advancement. So you’re coming out of the 1950s and 1960s of movements to try and get greater rights across the country for women.

You also had the emergence of women centric publications like Ms. Magazine with Gloria Steinem. There was a huge influx of people finally talking about issues that were specific and experienced to women. That was around the same period of time that you had the emergence of women’s studies programs, all across the country were really becoming quite popular.

You also started to a slight emergence in university life to admit more women to programs such as law and other programs that had been historically unavailable to women across the country. So there was this great unification of women across the country really wanting to be able to have greater access to opportunities, education, and to funding, actually as well, from universities, and or just being able to control your own finances and get a credit card in your own name. Which actually wasn’t legal until the late ’70s, which is always still one of those things that blows my mind.

Cynthia Gentile: Thank you, Ruth Bader Ginsburg, for that one.

Krista Niles: Yes.

Cynthia Gentile: So as the legislation moved through both Houses and then made its way, the amendment made its way to the states, can you give us a little background on what happened next? Because I suspect that many people don’t know that the ERA is not already a constitutional amendment.

Krista Niles: That is indeed a fact. Through my years of activism on this amendment, I have been really blown away by just how few people think that the ERA is part of our nation’s most foundational document, the Constitution. A lot of women think that it ratified in the ’70s and ’80s, but in fact it did not.

So let’s dive down into some of the nitty gritty of the history of the ERA, because it’s unique and it’s special. It bears some attention to make sure that we understand its past, and how that reflects on its current status and confused status today. So one of the provisions that a senator who was very against the Equal Rights Amendment, one of the provisions that he insisted on when it left Congress was the addition of a preamble to the amendment.

The preamble gave it a deadline, an original deadline of seven years. So that meant that this amendment had to be ratified by the states within a seven-year timeframe. That’s a really tricky and difficult situation.

Now, historically it is not terribly unusual for amendments to be given a time deadline, a timeline. However, it was the short period of time that Congress started to do these time limits on different amendments, in different pieces of legislation. They’re still used today, but not as greatly, I would say.

So right out of the gate from 1972 to 1975, there were a number of states across the country that ratified it very quickly, states like Hawaii that ratified it within their first few days. But from 1972, to say, 1975-ish, it had really strong expectation that it was going to be ratified even within that crazy seven year deadline.

However, during that same period of time, the Stop ERA movement began to grow. That of course was led by anti-ERA activist woman by the name of Phyllis Schlafly. If you’re interested in learning a little bit about that history, of course, there is several documentaries out, one most recently done by FX called Mrs. America’ It’s got some factual errors. Gloria Steinem and Ellie Smeal, long time ERA activists, have wrote a great op-ed in the Los Angeles Times really going to task on some of the factual errors that were included.

The Stop ERA movement got a lot of attention, and it activated a lot of women who were led to believe a lot of misinformation about the ERA, and that was that, if passed, the Equal Rights Amendment was going to take away some of the hard-earned rights that women had. Phyllis Schlafly came up with some talking points that really led to that.

One of the allegations was that if the Equal Rights Amendment passed that women would lose their children upon divorce. They would lose access to alimony that they might have been eligible for in different situations. So women, of course, as a lot of women at that time were still stay-at-home moms, which is wonderful. They were, of course, worried that they were going to lose some of their resources.

And then one of the other talking points was that women were going to be forced to go into combat and potentially added to the draft. So those were some of the fear tactics that a lot of anti-ERA activists were using.

But if you really look at how Gloria Steinem and Ellie Smeal have really reframed that period of history, Gloria Steinem really said, Yeah, Schlafly had a lot of public attention, but when it came down to it, it was about insurance companies not really wanting to insure both male and female people at the same rate, because women tend to live longer lives.

So that’s just more interesting. Once you dial down and you look back at the cumulative history of the Equal Rights Amendment, and of course, which are the sound bites that get played on media and then which are the less sexy tidbits of news that are actually quite more provocative, I would say. Understanding that Chambers of Commerce across the country were also really not interested in supporting the Equal Rights Amendment, and still many are not, because equal pay is a real problem when come to looking at how companies look at their bottom line. There’s a lot of activism happening in that space about equal pay for equal work, and we are, as a nation, getting far better about that.

But I think as we move into spaces where we’re becoming, as a culture, a little more transparent about income, I think that we’ll start to see a lot more breakdown in that space. Of course, you have Lilly Ledbetter Equal Pay Act, and the current Biden-Harris administration, equality is just one of their tenants that they are moving forward and creating legislation and supporting legislation in that space.

Cynthia Gentile: Today, we’re talking with Krista Niles about the fight to ratify the Equal Rights Amendment. I do want to touch a little bit more about equal pay, but before we go too far into the world where the ERA is a reality, well, we know that it didn’t pass in 1977 and then they were given a few extra years until 1982.

Krista Niles: Correct. So let me go back to the pre-tangent that I was on a second ago. So from 1972 to 1977, sorry, 1979, the ERA was out for ratification. Around from 1975 to 1979, you can really see the Stop ERA movement gaining a lot more momentum, as well as state legislatures are changing and there is a greater awareness of the shift in Republican politics at that time that occurred around the election of Ronald Reagan. I would imagine that a lot of your listeners might not understand or know that originally Republicans, the ERA was part of their platform. But it was with the election of Ronald Reagan that that began to really shift.

So from 1972 to 1979, ERA is out for the states for ratification. Momentum is growing against it. So when it comes to the deadline, it was quite apparent that they weren’t going to have enough states. So Congress decided to extend the deadline until 1982. So June 30th, 1982 was the new deadline.

So another round of activism across the country to get the states to ratify happened, but when that deadline came, the ERA was still three states shy of the full 38 that were needed for full ratification to the Constitution. So upon that deadline, the ERA did, in fact, not ratify and therefore we still do not have it in the constitution.

Cynthia Gentile: So in 1982, the efforts for ratification fail, and it languishes for many, many years. I can’t do math on the fly. What do you think changed in, is it 2018 when the momentum began to pick up again?

Krista Niles: The momentum picked up again in 2015 out in the state of Nevada, under the leadership of state Senator Pat Spearman. She had been lobbying for a couple of years to revive the Equal Rights Amendment in the state of Nevada. With her leadership and her bipartisan work that she did in that state, in Nevada, they became the first state in the year 2017 to ratify the ERA since the 1970s, which was huge. It was 43 years, I believe, is the timeframe that it had been. So, it’d been a long time, and that started a whole new movement. This is rooted in a legal theory that came out of the mid-1990s that the Madison Amendment had been ratified to the Constitution and had languished for over 200 years.

But in the mid ’90s, that amendment was in fact ratified to the Constitution, which gave legal scholars a legal precedent for an amendment that had taken a long time to actually ratify to the constitution, and therefore developed what we call the three-state strategy. So at that time, a lot of movement started around, “If we can just get to three more states and reach the original 38 necessary for ratification, we actually have a chance to get this to the constitution,” which was wonderful.

So Pat Spearman and her work out there in Nevada in 2017 then spurred on the state of Illinois in 2018. A lot of work was done bipartisan in that state led by current Republican, former state legislator, Steve Anderson, the founder of the now active nonprofit group called GOP for the ERA. Check them out on the web. And then from there, of course, we turned to Virginia.

Virginia in 2019, we were hoping we were going to have this trifecta in sequence, but in 2019, the state of Virginia, the ERA lost ratification by one vote in the 2019 state legislature session there. That led to a fantastic grassroots effort of activism across the state. They had a state legislature election coming up that year, and so a lot of grassroots activism worked and effectively flipped a lot of seats in the state legislature in Virginia. When the Virginia legislature reconvened in January of 2020, the very first piece of legislation that they brought to the floor for a vote was the Equal Rights Amendment, and it passed. So January 2020, we reached the 38 states for full ratification of the ERA to the U.S. Constitution.

Cynthia Gentile: So we have 38 states that have signed on to the amendment, but because the time limit expired back in 1982, we’re still kind of in limbo, is that right?

Krista Niles: That is absolutely correct. This is why the ERA is so interesting, both from a social and cultural standpoint, but also from a legal standpoint, because it’s a completely unprecedented territory. There’s never been an amendment that has been attempted to get ratified once it passed the deadline.

The two legal scholars that I turn to for information on this are Linda Coberly. She is the legal counsel for the Equal Rights Amendment Coalition, the ERA Coalition. She is a lawyer based in Chicago with the firm of Winston & Strawn. I also turned to legal scholar Julie Suk. She is a professor and author and researcher with the Graduate Center at the City University of New York. She’s an expert on constitutional law and gender issues.

Both of them really do believe that because Article 5 of the Constitution very clearly states that only Congress, only members elected to Congress have the capacity to put amendments into law to amend the constitution, and because what each states were ratifying, the language of that bill does not include the deadline. The deadline was added to the preamble of the amendment. So because of that technicality, legal scholars do in fact believe the Equal Rights Amendment is still legally viable for ratification.

Cynthia Gentile: So where are we now with the legal paths to full ratification?

Krista Niles: That is very, very gray, and I will be up front with your listeners. I am not an expert on law. Like I said, I look around and I listen to the experts, and this is what I hear them say. I hear them say that during the Trump administration, the Office of Legal Counsel, which is part of the Department of Justice, was asked by the U.S. archivist David Ferriero. When Virginia did in fact become the 38th state to ratify, and they submitted the ratification to the archivist, which has an administerial duty to record the ratifications, to record the passage of legislation.

Because of the deadline, and because of the confusion around that, the U.S. archivist asked the Office of Legal Counsel for counsel, which is completely normal because the Justice Department does in fact represent the federal government and the U.S. archivist is an employee in the federal government.

So he did his duty and he reached out to the Office of Legal Counsel, and they gave a ruling. Mind you, at this time, the Department of Justice was run by William Barr, an appointee of former President Donald Trump. The entire administration was not necessarily what I would call friendly to a lot of gender equality law.

So, Barr’s Office of Legal Counsel more or less told David Ferraro that he could not, under their advice, push these documents through the process towards ratification. So he didn’t, because he is bound to do what the Office of Legal Council says.

So right now, what is happening is there are bills in the House to try and remove the deadline from the preamble of the Equal Rights Amendment. That will hopefully move the Equal Rights Amendment all the way forward through full ratification to the Constitution.

So in the current Congress, the117th session of Congress, the House, they have passed H.J.Res.17, and that is the resolution to remove the deadline. So that passed there. It’s now over to the Senate, and it’s Senate joint resolution number one. So it was the very first resolution introduced into the117th Congress Senate side, and that is sponsored by Senator Ben Cardin and co-sponsored by Senator Lisa Murkowski. Murkowski is a Republican out of Alaska, and Cardin is a Democrat out of Maryland.

Those two have sponsored this piece of legislation for a couple of years now. They’re slowly gaining some traction on that, but that is one of the call to actions I would have put out to your listeners today, is to call their Senators and make sure that they are urging them to sign on as co-sponsors to S.J.Res.1. Hopefully in this session of Congress, they will pass that piece of resolution, and then that will open up the door to the Equal Rights Amendment becoming part of our Constitution.

Cynthia Gentile: So we have a bipartisan resolution pending in the Senate, but because this is not something that most likely can be done through any type of reconciliation, it would need 60 votes. Is that correct?

Krista Niles: That is correct. That is absolutely correct.

Cynthia Gentile: So we have a bit of an uphill battle, I would imagine, at this point, but the fight is on. That’s the most important thing, right?

Krista Niles: Yes. The fight is absolutely on for the Equal Rights Amendment, but in a larger sense, the dysfunction of the Senate and the filibuster is really getting a lot more attention during this current session. Rightly so, because the Senate is broken. The Senate is not working because of the filibuster. The filibuster is now, there’s a lot of social justice activism, a lot of equal rights activism happening around trying to eliminate the filibuster.

The ERA Coalition is a national coalition of over 100 organizations that work for the Equal Rights Amendment, and the ERA Coalition is leading the way and helping to educate elected officials in Congress, in both houses of Congress, on why the filibuster is not helping to create a better environment, to make sure that the laws of the land that are passed by Congress are representational and helping truly achieve that diversity and the equality that the United States has built itself on.

Cynthia Gentile: Right. The ERA sits in good company with things like the Voting Rights Act  and the police reform work in needing to get that 60 vote majority, that filibuster-proof majority. So there a lot of work to be done around the filibuster, so it’s definitely an interesting conversation.

So let’s fast forward to a world where the ERA has already passed, and we have the ERA ratified fully and included in our constitution. What are some things that you think would change as a result of the ERA’s full ratification?

Krista Niles: The ERA, as a legal tool, is just that. It is a tool that women and men will be able to use to fight discrimination, so whatever that discrimination is. The ERA has long been framed as a women’s issue, but I push back on that. It’s a social issue. It’s about equality, and the way that the Equal Rights Amendment will help in the future is it will strengthen your ability to fight a pay discrimination lawsuit. It will strengthen your fight to make sure that you have access to education and opportunity. It is a legal tool that will be there to help make sure that you have equal access to healthcare as a male or a female.

One of the unknowns about the Equal Rights Amendment once it is ratified, because of course it will take case law for us to understand how the Equal Rights Amendment will be interpreted by courts across the country at all levels, we have a little inkling of what that could be, because there are many states that do have state-based equal rights amendments. They’re not identical, some are, some are not, to the federal Equal Rights Amendment. So we can look at case law from those states and get a sense of how it could be used, but it will be a legal tool that will strengthen citizens’ ability to fight discrimination on a wide variety of levels.

Cynthia Gentile: So we often hear about the ERA as it relates to equal pay, but we really could see an impact across many different areas of our lives, including, as you said, healthcare and different access to justice factors that the ERA could influence.

Krista Niles: Absolutely. I just want your listeners to understand that men will also be able to use the Equal Rights Amendment to make sure they are getting equal pay for their work in the same way that others are, that women can move that fight forward. Also, one of the greatest things that really has come out of the last few years is young millennial men are supporting the Equal Rights Amendment more, because they understand that it is a path to ensuring that they have equal paternity leave upon the birth of a child, or they have equal access to leave to care for an aging parent or undergo cancer treatment. You name it. So it is about equality, and yes, it is gender equality, but it does extend in my mind far beyond that. So it will be very interesting to see how case law gets interpreted once the ERA is fully ratified to the Constitution.

Cynthia Gentile: Thank you so much for giving us this excellent background on this complicated topic. If listeners want to get involved with advocacy around the ERA, can you just give me an idea of some key groups they could be involved with or key places to get information?

Krista Niles: Absolutely. First off, go visit EqualRightsAmendment.org. That is a website I manage, and took over in 2018. And when it was gifted to us by long time ERA activist, Bobby Francis, who is one of my idols in this fight. So the equal rights movement has a ton of information that you can learn about the Equal Rights Amendment and just become educated. Share that information with your friends and your personal networks. That’s one of the very first things that you can do to become active in the fight. There are organizations like the Alice Paul Institute, the ERA Coalition, the Feminist Majority Foundation that are very active in the fight. There are an incredible number of younger youth based organizations that are coming out. There’s one that is called The Feminist Front. That’s a new one that’s based out of California that I just learned about last week, and they’re doing amazing work. Check them out.

There’s also Generation Ratify. It’s another youth based. That was the organization founded by some amazing teenagers, and they now have chapters all across the nation. So those are really fantastic organizations just to dip your toe into it. There is a really great documentary produced called Equal Means Equal, and that is based on the book by Jessica Neuwirth by the same name, Equal Means Equal. Both the book and the documentary really talk about what are the benefits of the Equal Rights Amendment from an economic standpoint, from a pay standpoint, from healthcare access. So they’ll get you really fired up about why it’s important to care about this, whether you’re a male or female.

Cynthia Gentile: That’s great, Krista, thank you. For our listeners, I will make sure we have links to as many of those resources as possible in the episode information.

Krista Niles: One last thing, though, I’m going to say. The best thing you can do to get the ERA ratified is to call your senator today, right now. Pick up the phone, figure out what their number is, call them and talk to whoever is on that phone, and make sure that you let them know that you really want them to support and sign on as a co-sponsor to S.J.Res.1. If we can get S.J.Res.1 passed this session, the path to ratification is really wide open.

Cynthia Gentile: Thank you so much, Krista, for taking time to talk with me today and sharing your experiences and perspectives. I really enjoyed this conversation.

Krista Niles: Thank you for having me so much. I really appreciate the opportunity to share this activism with your listeners.

Cynthia Gentile: Thank you to our listeners for joining us. Be well and be safe.

Cynthia Gentile is an associate professor of management at American Public University. She holds a Juris Doctor from Rutgers University School of Law and is licensed to practice law in Pennsylvania and New Jersey. She teaches courses in human resources, management ethics, and employment law for American Public University and West Chester University of Pennsylvania. When she is not teaching, Professor Gentile is a dedicated advocate for equality, and sits on the board of the Alice Paul Institute’s Equal Rights Amendment Advocacy Committee. She is also a host on the Leading Forward podcast channel, with a dual focus on women business leaders and legal rights and responsibilities related to diversity, equality, and inclusion in the workplace.

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