Gender Equality and the Battles Behind the ERA with Professor Julie Suk - Ep 58

Have you ever stopped to consider why the United States doesn't have an Equal Rights Amendment? Today’s guest, Julie Suk, law professor and author, paints a compelling portrait of the 100-year battle for equal rights. Drawing from her profound books, We the Women, and After Misogyny: How the Law Fails Women and What to Do About It, we embark on an enlightening journey through the turbulent history of the Equal Rights Amendment (ERA) and the power of collective female action.

A key figure in our conversation is Liz Holtzman, the woman who challenged the stagnation of the ERA. We chart the inspiring stories of trailblazing women such as Abigail Adams and Ruth Bader Ginsburg, and discuss the potential implications of late ERA ratifications, the politics behind the seven-year deadline, and the current interpretation of the ERA by the Supreme Court. Furthermore, we tackle how the lack of childcare and maternity leave contributes to ongoing gender inequality.

As we navigate this complex terrain, Julie introduces the fascinating concept of an equal power model. Unlike the anti-discrimination model, this alternative has propelled women's empowerment on a global scale. We examine the potential impact of the ERA and the pioneering work of figures like Pauli Murray and Ruth Bader Ginsburg, who have made strides in pushing forward the 14th Amendment's Equal Protection Clause. This episode is a rich tapestry of history, law, and feminist theory that will leave you hungry for more. Don't miss out on these powerful insights into the fight for equal rights.

CLICK HERE TO GET JULIE'S BOOK WE THE WOMEN NOW!
CLICK HERE TO GET JULIE'S BOOK AFTER MISOGYNY NOW!


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Transcript

Tish: 0:21

Ellen, on this week's episode, we are going to talk with Fordham University law professor, julie Schuch about the Equal Rights Amendment, the ERA, and I wonder if we should call this episode the 100-year war, because, ellen, did you realize that women in the United States of America had been fighting for 100 years now for the ERA?

Ellen: 0:46

You know, i realized this when I read Julie's article in the New York Times back in May. So I think the 19th Amendment, which gave women the right to vote, was passed in 1919, ratified in 1920. So I was guessing the ERA would have been that next logical step to fight and expand the Equal Rights to Women.

Tish: 1:10

Well, our guest, julie is going to share about her two incredible books that should be required reading for all women. The first book, we the Women, lays out the last 100 years that women have been fighting for Equal Rights. I love how the chapters really speak to different segments of women, how they picked up the torch and kind of move forward. But her second book is, after Misogyny, how the Law Fails Women and What to Do About It. So, ellen, i went to an all-female high school and we went to an all-female college And there is so much that I never knew until I read Julie's book We the Women. It broke down into these chapters what the impact of different groups of women over the last 100 years were going through, what their challenges were, where they made strides, and it taught me so much about women's fight for Equal Rights.

Ellen: 2:18

A great tish. I didn't realize, until I picked up the book too, that there was so much to learn, and I believe so many women at midlife just like you and me really have no idea that the ERA was never added to the Constitution. I mean, this came as a huge surprise.

Tish: 2:39

You know, ellen, i was having a recent conversation with a young college-educated co-worker about this episode And when I said ERA, he didn't really know what I was talking about. So it really shocked me And I thought do young people even know about the ERA?

Ellen: 2:58

Yeah, i'm not sure my kids do, but that says so much to me, tish, about why we need to be talking about this today and really pushing this message out and into the forefront of politics. But before we get to that, let's talk about our obsession today a little bit more Obviously, it is Julie's book right, It is absolutely Julie's book.

Tish: 3:22

This is going to be my go-to gift for all young girls and friends as well. I mean this is really should be in schools as well to show the history of what women went through, And I just love how she lays it all out very simply and really goes through what each of the eras or the decades kind of went through and what women took up the torch going forward each time. I can't tell you how obsessed I am with this book And I am joining a recent book group and I want them to do this book. That's how passionate I feel about it.

Ellen: 4:10

Well, if I recall, you were a political science major back in college, so I know this is in your wheelhouse, but I offered it up to my book group and it is our summer read And I found out one of the women in my book group was a women's studies major, so it opened up a whole area of conversation I'd never had. We will put a link in our show notes to both of Julie's books, as well as the Great New York Times article that I referenced earlier. So let's get started, Tish.

Tish: 4:40

Okay, So I want to introduce our guest here. So it is quite an illustrious career that she has had Now. Julie was born in Korea and came to the United States at the age of four, grew up in Queens, New York, Julie studied the viola and composition at the Juilliard School. She received her undergraduate degree summa cum laude in English and French literature at Harvard University, And she studied political theory as a martial scholar at Oxford University. She received her law degree in 2003 from Yale University, where she was the senior editor at the Yale Law Journal. She clerked for Judge Harry T Edwards on the US Court of Appeals for the DC Circuit.

Ellen: 5:35

Wow, welcome, julie, to the podcast. Super honored to have you here with us today And what an impressive career. But also I love that you have music as part of your background too. Can you share with us a little bit about what drove your passion for law, and especially the focus on women?

Julie: 5:59

So thank you so much for inviting me on this podcast. I'm so excited to be here to talk about We, the Women, and so many other things facing women at midlife that relate to my work So well. As you mentioned when you read my bio, i am an immigrant. We immigrated to the United States from Seoul, south Korea, in 1979 when I was four years old. I later learned, of course, that 1979 was the end of the seven-year deadline on the Equal Rights Amendment, but of course, i had no idea at the time.

Julie: 6:33

South Korea was living under military dictatorship when we left And my parents thought that America was a place for freedom and opportunity and in contrast to where we were coming from And we immigrated.

Julie: 6:50

And, of course, my first memories being in Queens was that it was this incredibly dynamic and multi-ethnic place. When we first moved to Queens, we lived in a predominantly African-American neighborhood And we had friends and neighbors of all ethnicities. So it gave me this real impression of what America was about And I think the kind of dream and hope and promise of democracy is something that I think, from a very young age, freedom and democracy were so important to the way we saw our lives here as immigrants And I think I focused on women in part because just observing growing up just the very separate roles, particularly in the culture that we were coming from, where it was very common And I think still remains very common, although changing in South Korea as well for women to stay home with the kids, and even though in South Korea it was understood that women were brilliant and could do anything But the raising and caring for children was so important.

Julie: 8:01

And this is not unique, obviously, to South Korea and the United States, and in many Western cultures, patriarchy is incredibly ingrained, where women and men are assigned different roles, largely because of and stemming from their different roles in reproduction, and so it starts with biological reproduction who's capable of becoming pregnant and having children but it then extends into that biology, extends into who's assumed to be primarily responsible for raising the children, and that assumption then feeds into who's assumed to be not be available for, capable of public life, running institutions, participating in politics, and so these are things that I think were very real, that you could just observe from your everyday life in terms of who's raising the kids and who is out earning a living for the family, and I think those gender roles were just something that always really interested me, particularly growing up, in a time where we always understood, as girls in school, that we could do anything, but it didn't seem like that was the reality when you saw a lot of women And certainly as I grew older, this is something that seemed very obvious to me that we could be anything, that we had the grades and the academic achievement and the and so many opportunities, but we didn't have a lot of role models. I mean, you mentioned my. One thing that was really important to me growing up was I studied viola and composition and, you know, really loved music. It was a real escape for me And I even wrote pieces for a full orchestra to play and have the opportunity to have the orchestra play this piece, but it never occurred to me to conduct some of, and it's because I had never seen a female conductor in my life. I'd never seen one.

Julie: 10:00

That's also a change. Now there are people And so I think that if you think about, even in the 80s, what your role models and assumptions are, even while being educated in environment in which we think that we have gender equality, but the reality and the reality is not just grounded in hatred of women or assumption that women are incapable. The reality is grounded in not quite having worked out in our law and political institutions What is the role of women and men in the raising of children, and what are the consequences for public life?

Ellen: 10:35

Julie. I just have to say here I so agree with that And I know Tish and I were. Really we were in college in the 80s And prior to that most women were teachers or nurses. I had a grandmother that was a nurse and a grandmother that was a teacher, and so I felt like maybe we felt we were the first generation that had a lot more opportunities in front of us, and I'm not sure that that worked out. I'm sure we can talk about that further on, but yes, i think we're all women here today that have benefited and been held back from some of the things we're going to talk about.

Tish: 11:14

And I think, in order to start a conversation about the ERA, i think there's that need to understand what has happened in these last 100 years And that's what I love about your book, julie, about the we, the women. It's such an amazing detailed history without being dull. Sometimes you think of history books as being dull, but it really wasn't. It was just so compelling the stories And, as I said, i think this book should be required reading really for everyone in the US to really have that solid understanding of this long fight for women to have equal rights That inspired you to write this book.

Julie: 11:56

So that is a great question. I think the book really grew immediately out of my experience as a young woman finishing college at the turn of the century, so the late 1990s, and I actually spent a lot of time in France because I was studying French literature And one thing that was happening in France was a constitutional amendment on gender equality in 1999. And so you could call that an ERA, but of course it wasn't the French ERA, because the French had the ERA, the guarantee of equal rights after World War II, so several generations of women had already had a provision in the Constitution. The amendment in the 1990s that took place was because and this is a very interesting moment to be talking about this the French constitutional court, which is like the Supreme Court in the US they struck down a law that said that you had to have equal numbers of men and women represented, or at least a minimum percentage of women represented, for certain political party candidacies, for certain positions in certain elections, and the constitutional court in France struck it down, what's called the Constitutional Council. They struck it down. So the women mobilized and they're like oh no, we need representation, we need equal representation. So we're going to pass an amendment that says equality means equal access to positions of power, and that was the amendment that passed in 99, and I had been spending some time in France while these debates were going on.

Julie: 13:31

about what does equality mean? Is it just like we don't discriminate, or does it mean actual equal access to power, equal numbers of women and men in political parties? And that's what made me wonder about what happened in the United States. So, number one why don't we have an equal rights amendment?

Julie: 13:47

All these other countries that we consider to be our peers got those equal rights amendments in the early part of the 20th century, and here we were sitting at the end of the 20th century without one. So I started researching what happened to the ERA, and so this book is a product of that research. But I want to say that, even though I don't talk that much about other countries in this book, that's more in my second book after misogyny. So much of my curiosity about the history of the failure of the Equal Rights Amendment in the United States was driven by observing countries where it was a given that you don't write a constitution in the 20th century without guaranteeing equal rights to women. It's just not considered a legitimate way of having a constitution if you don't guarantee gender equality in some way.

Ellen: 14:37

I know I just have to pop in here and say your book starts out with Abigail Adams right, And that caught me right from the beginning that a woman in the 1700s was kind of schooling her husband to not forget the ladies when they went to the Constitutional Convention in Philadelphia. And I have to say that Spurtitian I to do a whole bunch of research on her. But it's really what I love about your book is just the profiling of the women, right from the pioneers and the. the unstoppable's were a lot of women from our generation Jackie Spear from out here in California where I am, Nancy Pelosi, who's a fellow alum of our college, So I really enjoyed that part of the book. Julie too.

Tish: 15:28

You know I had never heard the story you wrote about Ruth Bader Ginsburg when she was admitted to one of the first classes of women into Harvard Law and that the Dean had brought them over for dinner and they had to explain why they thought they were worthy of taking a spot that should have been meant for a man. Really sat there and wondered, you know, kind of marinated in it, as we like to say, as did her life's passion of fighting for gender equality, was it born at that dinner, you know? so I kind of was kind of curious which of the women's stories really speaks to you about this whole battle towards the ERA?

Julie: 16:12

Yeah, I think so many feminists are made They're not necessarily born as feminists but when they realize that the natural state of what's assumed for what's possible for women is a state of inequality, I think that's where you see some sparks. And so one of the stories that I really loved that's profiled in the book is the story of Liz Holtzman, who also went to Harvard Law School maybe a decade or so after Justice Ginsburg. But Elizabeth Holtzman, before AOC, was the youngest woman elected to Congress and she ran against a manual seller. Now manual seller makes an appearance even earlier in the book than Liz Holtzman because he was a fierce opponent of the Equal Rights Amendment And he controlled the House Judiciary Committee for many years during the 1960s, even though there was overwhelming support for the Equal Rights Amendment. He basically blocked the ERA from going to the floor of the House and being voted on for many, many years because he was an opponent.

Julie: 17:32

And Liz Holtzman runs against him in the Democratic primary in 1972. And he just kind of ridicules her, says she is a toothpick trying to topple the Washington Monument. But you know what? She topples him. She wins that primary and becomes the youngest woman elected to Congress at the time and then plays a leading role in the Nixon impeachment hearings on the House Judiciary Committee and, very importantly, becomes the sponsor of the resolution to extend the deadline on the Equal Rights Amendment in 1977 and 1978. And I think it's just poetic justice that she topples the man who worked so hard to stop the ERA for so many years and then is so important to the fight to expand or to extend the deadline and to extend the ongoing battle for the Equal Rights Amendment.

Tish: 18:34

I think we, as women, underestimate how much power we really have if we come together, and I think that's what I would love to see, you know some of our listeners to feel empowered and impassioned by some of the things that we're gonna bring up today.

Ellen: 18:52

I agree, tish And I know a little bit later on we're gonna give some action items, some things people can do, because we love to do that as well. But, julie, you know I read your article. It's time to reacquaint Americans with the possibility of changing the Constitution. Here's where to begin. It was in the New York Times in May and it really awoke something in me around this And maybe you can share. Where do things stand right now with the ERA as getting it added to the Constitution?

Julie: 19:27

So just to give a little bit of background. I think we started by saying a lot of people don't even know what the ERA is. So I just want to give a little bit of background. And we mentioned the 100 years. So it's a constitutional provision that says equality of rights under the law shall not be a bridge by the United States or by any state on account of sex. And even though it was first introduced 100 years ago July 1923, and then in Congress that December, it was not adopted until 1972 by both houses of Congress.

Julie: 20:03

And we have a constitutional rule with regard to making an amendment. This is what our founding fathers put in there and it's still what we use to change the Constitution. It means two thirds of both houses of Congress have to adopt the amendment. Three fourths of the state legislatures have to ratify it. So what happened with the ERA is that finally, you get two thirds of both houses of Congress to pass it in 1972. And then a lot of states were very quick to ratify it. I mean it seems a little like a no brainer. Equal rights for women.

Julie: 20:39

So you get 35 states ratifying it pretty much right away. But then there was a movement to stop it And that movement starts taking off around 1975, 1976. Phyllis Schlafly is one of the chief opponents. There was a TV Hulu series about her battle against the ERA. And, as a result, even though you get 35 states to ratify it by 1977, which is like in the first five years, the ratifications kind of stall. And just to do some quick math, three fourths of state legislatures When you have 50 states you need 38 and 35 is not quite there, even though 35 out of 50 is still a pretty sizable majority of this country, especially when you consider the biggest states like California, new York ratified the ERA and other very populated states. So so even though you get to 35, which is pretty good, it's still under the constitutional rule three states less than what you need.

Julie: 21:44

And because Congress had put in a seven year deadline on the ratifications, liz Holtzman sponsored legislation which was successful in 1978 to extend the deadline to 1982. So there were three additional years. But by then the movement against the ERA, fear mongering about women having equality, there was a lot of fear mongering so no additional states ratified the ERA by the end of that extended deadline either, and for the most part, it was forgotten. As a young person, people just thought like, if the ERA was ever mentioned, it was this thing that was proposed but died, and that's how we thought of it. But, very interestingly, in 2017, nevada ratified the ERA And then in 2018, illinois ratified it, and then in 2020, virginia ratified it. So that gets us up to 38.

Julie: 22:43

And the problem, though, is that the deadline, the ratification deadline people say well, if the data, if the deadline applies, then those last three don't count. Another complication is that, in the 1970s, there were five states that voted to rescind their ratifications. So, even though they first ratified it, then they said we've changed our minds, we're taking our ratification back. So there are these legal questions now as to whether the late ratifications count and whether or not a state can actually take back its ratification. And in addition to those very interesting legal questions, there's also another legal question well, who decides? Is it for judges and courts and litigation to decide that question, or is it for Congress to decide that question? Is it for the president to decide that question, right? So that's where things stand right now, i guess, to put it shortly I know I've gone on for a while like giving you the status update, but to put it very shortly, it's a big mess and there's a lot of uncertainty.

Tish: 23:53

Well, i think it's really important to note too the founding fathers are not the ones that put that seven year time limit that came after correct.

Julie: 24:03

That is correct. So Article 5, it says a bunch of things, but the relevant rule, the rule that we've used, there are several. there are a couple of different ways to amend the Constitution in Article 5. But the one that we've used for almost all the amendments that we have is two thirds vote by Congress and then three quarters of the state legislatures, and it doesn't say within a reasonable time period, it doesn't say within a seven year time period.

Julie: 24:31

And for the first, until we had the prohibition amendment, which is the 18th amendment, the first 17 amendments were made without deadlines on ratification. And then, after the prohibition amendment, it became, i would say, typical, but not always the case, but often the case that Congress would say let's put in a deadline on that. And that was and that's something I spend a lot of time on in my book, because it's a political tactic People who don't want that amendment, people who didn't want prohibition, said let's do a compromise by putting in a deadline, because if there's a deadline the state legislatures really better get their act together if they really want it. And so that was the compromise. But what I try to show in the book. if you look at how that deadline got there it turns out we have a lot of political rules that are also not in the Constitution. For example, the Senate gets to make up its own rules. One of its most notorious rules is the filibuster.

Julie: 25:42

Meaning they can debate for as long as they want until everyone just like faints from exhaustion, and there's no time limit in the Senate. Ironically, there's no time limit in the Senate on how long you could go on.

Julie: 25:55

And therefore, like all it takes is two guys who are willing to keep talking about how much they hate the ERA.

Julie: 26:04

They can keep talking and talking, and talking and trying to propose amendments to the bill, and you know, if they keep doing that that it's going to hold up the vote. And that actually happened once the ERA passed by an overwhelming majority in 1970. But the Senate it didn't pass in the Senate because the guys kept talking and talking and we're not talking about like a lot of opponents, just like a handful of guys who really wanted to stop it kept talking and talking, and so then the ERA didn't even get a vote in the Senate. It was the first time it was passed by the House And then. So then when it comes back, when the ERA comes back in 1971, martha Griffiths, who is really like the founding mother of the modern Equal Rights Amendment, martha Griffith, says you know what, let's just agree to that seven year time limit, because she didn't think there was such overwhelming support. I don't think it would be that big a deal, but honestly, she was just agreeing to it to stop eight guys from making a fuss and dragging out debate.

Julie: 27:09

And they, it didn't stop them. She agreed to the deadline and they still talked on and on and on. But eventually the ERA did come to a vote. And when it did come to a vote it came to 84 to eight in the Senate. But I think it's also myths. Some people say, oh well, those 84 mostly guys there's only one woman in the Senate at the time those 84 guys would never have voted for the ERA without that seven year deadline. If you actually look at the record of debate, that's not true. I'm actually I'm very confident that if the ERA had come up for a vote in the Senate in 1971 or 72, even with no deadline in it, they certainly would have gotten two thirds of the Senate. In the end they got 84, which is well over two thirds of the Senate with the deadline in there.

Ellen: 27:58

You know, julie? oh, i was, just, i was. What do you think happened between the 70s and early 80s and 2020, 2023? here It seems like such a long period of time for this issue to, at least for me. It was not at the forefront of my thinking as a woman, and that's shocking.

Julie: 28:22

Yeah, i think so. A lot of things happened that are important to know. So in the 1970s, a lot of lawyers the ERA was a huge movement that involved lawyers and activists and people from a range of different backgrounds A lot of the lawyers, including the late justice Ruth Bader Ginsburg. She was a lawyer for the ACLU Women's Rights Project in the early 1970s. She was a fierce advocate for the Equal Rights Amendment, but she was engaged in what was known as a dual strategy. Dual strategy because, in addition to advocating for the Equal Rights Amendment, she and others, including pioneering African American civil rights attorney Pauli Murray.

Julie: 29:10

They believe that in addition to the Equal Rights Amendment, they can also work very practically on the law that we already had, which is the 14th Amendment, the Equal Protection Clause of the US Constitution. It is a clause in the Constitution that doesn't mention sex or it doesn't mention race either. It just says that a state can't deny anyone equal protection of the laws And before the 1971, the Supreme Court had never used that to protect women from discrimination. Then, because of a case where Ruth Bader Ginsburg files a tour de force amazing brief, read versus Read because of the reasoning in that brief the Supreme Court comes out in 1971 and says actually, the Equal Protection Clause requires us to scrutinize or to think more carefully about any laws that discriminate against women. And then there are more cases throughout the 70s, many of which are litigated by Ginsburg, and so we have Supreme Court cases that then incrementally make sex discrimination a constitutional problem under the Equal Protection Clause. So one of the reasons I would say the ERA got forgotten in the time period that you're describing is that we started to understand the existing constitutional guarantee in the 14th Amendment as including women and as including a prohibition of discrimination against women, because of the work that feminist lawyers did to change the interpretation of the Constitution that we already and currently have. So that's one part of the story. I think it's also not entirely true that it was totally forgotten. So as part of writing this book I've talked to legislators in Nevada and Illinois and Virginia And if you look at the record, some legislators continued to introduce resolutions to ratify the Equal Rights Amendment consistently. They just didn't really get off the ground. But I think one really important moment is 1992. And the reason there's kind of a shift in the way that people think about the ERA being possibly alive again after 1992 is that this weird thing happens to the Constitution in 1992. The 27th Amendment gets added to the Constitution.

Julie: 31:46

The 27th Amendment is the last constitutional amendment we ever had, and it is an amendment that was actually written by James Madison in the late 18th century.

Julie: 32:00

It was supposed to be part of the original Bill of Rights, but not enough states wanted it at the time, so it doesn't make it into the Constitution, even though it was one of the things that was sent to the states along with what we now know as the Bill of Rights.

Julie: 32:14

It's a provision that just says that Congress can't give itself a raise without it, without there being a time lag. So if Congress votes to raise its own salaries, they have to wait for an intervening election before the pay raise actually goes into effect. That's what the 27th Amendment does, but basically very few states ratified it in 1791, and very few states ratified it through the 19th century. But strangely, after the ERA failed, some people started to say well, if there's no deadline, era had a deadline, but if there's no deadline, then that means it's still a live and you could keep ratifying this. So, very bizarrely, in the 80s all these states start ratifying what's now the 27th Amendment, the Congressional Pay Amendment. Soon they get up to 38 states and then in 1992, there's a Congress, both houses of Congress independently pass a resolution saying okay, we now recognize the 27th Amendment even though it took 203 years to ratify.

Tish: 33:27

So it kind of brought that into question, that seven-year rule again.

Julie: 33:32

Yeah, no, it's not. There's no seven-year rule, there's just a deadline imposed by Congress. But one of the things people had been saying before the Congressional Pay Amendment before 1992, was and also, it's just you know, if you don't want something kicking around for like four generations, that's not legitimate. But once this thing was added, after 203 years, a lot of people said oh, it turns out age is no disqualifier for a constitutional amendment. And then people said well, age should not disqualify the ERA either.

Julie: 34:08

So, the ERA might be 20 years old now, but it should not be disqualified just because it's too old. And then people said, oh, but the difference between the ERA and the 27th Amendment is that Congress actually put in a time limit on the ERA, whereas James Madison didn't think to put in a time limit on the Congressional Pay Amendment. So that's where the state of the debate is, But I would say in 1992, people started thinking like this is a really interesting problem. It turns out you can keep ratifying something across generations. What about that? And it's a fascinating question for constitutional lawyers.

Tish: 34:47

Well, i know you're saying there was still activity in politics. I think what I'm in agreement with Ellen. I think women in general didn't start leveraging their telling their politicians I need you to vote for this or I'm going to vote differently at election time. I don't think we mobilized. I know things were going on, but I don't think we mobilized as women, saying we have to have this done And we do have that type of power And I don't think many times we exercise it to come together under a certain issue such as this.

Ellen: 35:36

Yeah, Yeah, I guess maybe, Julie. what I was saying and I agree with Tish is that it just wasn't part of my conversation where I would get together with girlfriends or my book group, that type of thing, And that's where I feel like it's a big miss for some women, maybe of our generation, these women that are facing midlife right now and realizing that this is something that we can go back to and to bring forward in conversation and in action.

Tish: 36:12

Both of those So, julie, are you seeing any way for us to get to the ERA being added with working around this timeline issue, or is this something, in order to get it added, that we're going to have to start all over from scratch again?

Julie: 36:35

So it's possible that if we did start all over from scratch and could get both houses of Congress to adopt it starting from scratch and then could get three fourths of the state legislatures to ratify it, that might be the bulletproof way of getting it into the Constitution. Because one of the problems right now is that, because it's so messy and because there's so much uncertainty, there will always be someone claiming that it's not legitimate. And depending on how much power those people who claim it's not legitimate have, of course, the legitimacy of an amendment I mean, if people don't accept it as legitimate including will the Supreme Court accept it as legitimate. And so right now, I think the best bet for not erasing the hundred years of work that have already happened on this amendment because starting over is like OK, we're just going to erase all the work that women have already done And that doesn't feel great. So I think the best bet for actually getting this ERA added to the Constitution would be for Congress, for both houses of Congress, to take action, to eliminate the deadline, to say And that's actually there's been a little bit of progress on that, because the House passed it twice And then there was a vote in the Senate this year, but the House passed it twice, but the Senate didn't follow in those legislative sessions. And then in this new legislative session, there are enough votes in the Senate to pass it, But again it's the filibuster.

Julie: 38:22

That is, there are 52 senators That's a majority of the Senate who are in favor of removing the ERA deadline And they voted. But because right now, due to the filibuster, you don't technically vote on the thing in the Senate, You vote on a motion to bring it to a vote And in order for that motion to succeed under the filibuster, you need 60 votes instead of 52. It's a super majority rule which is not very democratic if you think about it. So as a result, even though there were 52 votes in the Senate to extend the debt or to remove the deadline, in April the Senate voted to bring it to a vote and that vote failed. It technically fails, even though what we have on record is that 52 senators support removing the ERA deadline. And that's to say, even if somehow you got 60 votes in the Senate, or maybe you got rid of the filibuster and got the 52 votes in the Senate right now in the House.

Julie: 39:32

The previous houses were primarily democratic or democratic majority houses that voted to remove the deadline. Right now, with the GOP controlled House, if you introduced it in the House, the measure would fail, Because one thing that's really different between now and 1972 is that we're extremely partisan and polarized. There isn't a lot of bipartisanship in Congress. Without bipartisanship in 1972, the ERA would not have passed by like 90% of the vote. We had a lot of Republicans, including pro-life Republicans, who supported the Equal Rights Amendment. There were people working across the aisle in the 1970s that on issues of gender. You don't really see that quite as much today, or at all.

Tish: 40:26

So, Julie, I'm kind of curious with your law students. Are they very aware about this whole journey of the ERA?

Julie: 40:35

So my law students? yes, but I would say your typical law student. Or, remembering my own experience as a law student, no, not, not really. This is not, i mean to the extent that it's mentioned in a basic required course in constitutional law it might it might be mentioned as just a failed amendment.

Julie: 40:59

It might be mentioned as something that raises interesting questions about deadlines and article five, you know. so that there are some technical procedural questions that I think some people find interesting And and it's definitely mentioned as a proposed amendment that affected the way that people saw the existing Constitution. So in that sense, even without the era added to the Constitution, it's kind of part of the Constitution because without people advocating for the era, the idea that's pretty solid in our Constitution, the 14th amendment, jurisprudence of sex equality that idea would never have become part of constitutional law without the dry for the Equal Rights Amendment. So I think that's what people know, if they know anything about the era, but it's really not a big topic in constitutional law, in law schools.

Tish: 41:59

And you had brought up the Supreme Court and how historically they have not initially interpreted things like the 19th amendment in ways that expanded protections from women. Do you also see this current court interpreting if we were to get the era passed and added as an amendment? Do you see the same struggles that that would have with this current court?

Julie: 42:25

So I think that the current court, if you read some of its recent decisions carefully, would probably not have an expansive interpretation of the era, and the reason they would not have an expensive understanding is that they would probably enforce what they think the Equal Rights Amendment meant when it was adopted by Congress and ratified by most of the states that ratified it in the early 1970s.

Julie: 43:03

And in the early 1970s the goals of the Equal Rights Amendment were a little bit different from the goals today. In the early 1970s also, part of the reason many people wanted the Equal Rights Amendment was they wanted the Constitution to prohibit sex discrimination, and right now I wouldn't say that's the primary goal, because a lot of the cases that were litigated by Ruth Bader Ginsburg in the 1970s already achieved that goal Right. I think people would want a more 21st century understanding of gender equality. So the movement for the ERA. Today, especially after the Supreme Court's decision on abortion last year, a lot of people want an Equal Rights Amendment that means reproductive rights, or at least they want an Equal Rights Amendment that would prohibit any kind of state or federal action that disadvantages women, whether it's intended to disadvantage women or whether it's just an effect.

Ellen: 44:08

Right.

Julie: 44:09

Now I would say those meanings, and part of the reason I wrote the book was to show that a lot of the 21st century ideas were in the legislative debates about the Equal Rights Amendment in the early 1970s as well, and I think we don't think about them as much. But if you look at what people like Bella Abzug or Patsy Takamoto Mink who's like the first Asian American woman elected to Congress or Shirley Chisholm what they said on the floor It was not just we need the Equal Rights Amendment to prohibit sex discrimination and sex classifications in the law. They said we need the Equal Rights Amendment because there's no childcare, there's no support for women and the disadvantages they face because they're mothers, and I think those were late 20th century issues. There are also 21st century issues.

Julie: 45:01

The United States remains like the only advanced democracy that doesn't have paid maternity leave for example, that has tremendous effects on the prospects for equality in the workplace and in professional lives for women. We don't have an infrastructure of childcare And, even though you might not think of childcare as a gender equality issue, that has tremendous consequences for the empowerment of women in areas outside the home.

Ellen: 45:32

Absolutely. Tish and I have both been working mothers, you know, for years, and often, truly, i've sat around tables thinking all these guys have a wife that's doing everything right. There's no really protections for us, and I've really felt it in childcare and as childcare has gotten more and more expensive for us, it's really a struggle, i think, and these are 21st century struggles that were also, you know, 1970s, 1980s struggles. I was just wondering if there's anything else around the ERA that you could share, what else it would provide for women that maybe we haven't already discussed.

Julie: 46:26

Well, i think one thing that was really important to the vision of the Equal Rights Amendment was that it really went beyond courts and it really went beyond the Supreme Court, meaning people like Patsy Mink and Martha Griffiths. They said this is not about. This is about a wake up call to all public servants, all levels of government, to ensure in the 20th and now the 21st century, not only that women are treated equally, but that they do what's necessary in terms of legislation to ensure that women can actually live as equal citizens in this country. And that's a little bit different from saying we just don't want the government to discriminate anymore. It's actually a lot different from that.

Julie: 47:25

And one of the things that's really important in the ERA that I think doesn't get discussed enough is Section 2 of the Equal Rights Amendment, which gives Congress the power to enforce the ERA, and that means that Congress has power to adopt legislation on a national scale that would actually realize equal rights.

Julie: 47:55

And I would say further that not only does Congress have the power to do it, it appears from the spirit of the amendment, as it was adopted in Congress in the 1970s and ratified by the states, that Congress has a duty to ensure. That is, the substantive provision of the amendment says equality of rights shall not be abridged, not just denied, but shall not be abridged by the United States or by any state on account of sex. And if you think about equality of rights not being abridged if you lack the public policies that make it possible for women to actually exercise equal rights, that absence of public policy or that absence of infrastructure is also a problem for government. And I do think that the discussions as early as 1970, 1971, 1972 have those ideas in it And I think the movement to revive the Equal Rights Amendment or to continue ratifying and fighting for the removal of the deadline are really about these unfinished goals.

Tish: 49:10

Now, i know we've been really focusing on we, the women, but we I do want to hear a little bit more about, after misogyny, how the law fails women and what to do about it. Is this kind of a continuation of the fight for women and women's rights?

Julie: 49:29

Absolutely. So much of the content of after misogyny is focused on women in constitution making outside the United States and around the world, where I think that feminist movements have been more focused on dismantling patriarchy as well as building structures to move to a more just and more egalitarian system. That's non patriarchal, If you think about. If you say don't discriminate on the basis of sex or don't discriminate against women and you just get rid of patriarchy. This is what Phyllis Schlafly's objection to the era was. She said if you get rid of patriarchy, women are still going to be vulnerable because patriarchy protects women. Right, She said women need that special protection. It's actually a privilege to be a wife and mother and not have to worry about making a living for the child. That's how Phyllis Schlafly put it And I think we yeah, we kind of laugh at it, But I think she actually she had a point in that if you get rid of patriarchy But then you don't actually build a gender equal system, Who's going to be left shouldering all the burdens Still?

Ellen: 50:47

the women.

Tish: 50:50

Ask the single mothers, ask all the single mothers out there who showed during the burden They're going to tell you Right.

Julie: 50:59

So so what I try to do, and after misogyny, is that I show that misogyny is not just hatred of women or discrimination against women. Misogyny is building a whole system around the assumption that the whole society is entitled to women's sacrifices for the common good, and we call it like good motherhood or the natural state of being a mother, but in fact it's a. It's an unjust system where we assume that women will do all this caregiving and household work for free And if, for some reason, they end up without a husband to support them economically, then they will be because of a system under patriarchy. Women are dependent. But if you have that system and it continues to be assumed that women will do all the caregiving for free, then women end up shouldering huge sacrifices and burdens And it works to their disadvantage and in hampers their ability to live as full human beings and citizens. And so I show in the book that it's not enough just to get equal rights, amendments and constitutions. That's just the beginning, just like we learned from the 19th Amendment that being able to vote was only the beginning And it wasn't the be all end. All that was with the vote. Then you could start dismantling all the unjust laws by voicing your concerns in the electoral arena.

Julie: 52:36

And so, with equal rights, that's also only the beginning, and many of the other countries have moved beyond equal rights and they've moved to a model of equal power. And what that means is that in most countries around the world not the United States there are gender parity rules. So political party has to run an equal number of male and female candidates by law, a corporation registered to do business has to have an equal number of male and female members of its board by law, and there are constitutional amendments that ensure that those laws don't get challenged. And so if you wonder why we were doing okay, i think we have like maybe 25% women in Congress, but relative to other countries that we consider our peers, we're not doing so well.

Julie: 53:32

Most of the Scandinavian countries, in many countries in Europe, have close to 5050, 4060 representation gender representation And it's because their laws are different with regard to having gender quotas and gender parity rules. In the United States, one state your state, california has adopted a rule requiring at least one woman on corporate boards of directors, but the courts have struck it down, saying that's discrimination. You can't do that, and so I think that. So what I try to do in the book is to show how an equal power model, which is very different and sometimes in conflict with an anti discrimination model, is actually what has led to women's empowerment in many places outside the United States, and this, too, this is not an alien idea.

Julie: 54:23

And this too, was something that Polly Murray talked about. Polly Murray's the pioneering feminist civil rights attorney, who was very unsung during her lifetime, But I think recently people are looking at her work and really giving it the place it deserves. But she testified, or she had written testimony on the Equal Rights Amendment in 1970. And the ERA is not just about non discrimination. We could do that with the 14th Amendment. It's actually about equal power.

Ellen: 54:56

It's. It's really, I think, going to be fascinating. I haven't read this book, but you've really pulled me in to want to read it around the world somehow. You know, I feel like, are we behind? are we not as progressive, Julie, as a lot of these other countries that you mentioned?

Julie: 55:17

So, yeah, i don't know.

Julie: 55:19

I think it's very hard to compare on and have like a scale of progressive or not progressive. It's always really fascinating because, for one thing, a lot of other countries So in a lot of the countries I've mentioned, including France they had paid maternity leave before women had the right to vote. How do you look at that? is it more progressive or less progressive if you get paid maternity leave but you can't vote right? right, and we have a lot of non discrimination rights, so that's very progressive, but we don't have paid maternity leave, right, and so I think a lot of it just depends on how you see. In fact, if you had things that were special protections only for mothers, we would consider that sex discrimination Right. So so I think it is very hard to compare, and I think also sometimes policies or legal approaches that might be beneficial to working class women are not as beneficial to professional or business class or elite women. I think these are things we really need to think through as we advocate for various policies and change, and change and change.

Ellen: 56:39

This has been an amazing and fascinating conversation today, julie. I feel like I have learned a lot. I know Tisha, and I always like to ask a few closing questions. So, tish, why don't you start?

Tish: 56:51

Sure So, julie. The one question we love to ask our guests is what is your superpower?

Julie: 57:00

I love that question. So, hmm, i will say, and I hope I don't jinx it, but I don't get jet lag I think this is my super power.

Tish: 57:21

I think I think there's a lot of traveling friends that would like to know that how to do that superpower.

Ellen: 57:29

I love it. That sure gives you some of that all important energy right when when it's needed. We also like to ask if there is any advice or any battle cry that you'd like to give our listeners, our midlifers, anything you want to say in closing.

Julie: 57:51

So I have. I think that our generation I think there have been. There's been so much progress and yet also so many disappointments. If you think about the Supreme Court's decision in Dobs last year. I think we can have a lot of different views about abortion and when it's justified, but I think the way in which the court talks about the issue and the way in which legislator legislatures have adopted some of the laws really show that there is misogyny, not just hatred of women, but just an assumption that women sacrifices and burdens and pregnancy, childbirth, childbearing and childrearing can be taken for granddad. That's what I think misogyny is And I think so.

Julie: 58:44

So I would say it's really important for us to rethink what misogyny is. And then, when it gets to women in midlife, one of the things that I find really astounding is the lack of attention to. We have menstrual equity movement, which I think has been great, and I think lately they've just been turning their attention to the specific issues facing women in menopause and perimenopause, and what was astounding to me is that in Parliament in Britain they had all these hearings about menopause and the workplace where they just had scientific and other forms of evidence presented to think about if we really care about gender equality and women's ability to thrive in the workplace. How should we be thinking about menopause?

Julie: 59:38

And I find I think that's incredibly important for women in midlife And it's one of these issues that I think all too often people don't think about it until they're there and it's too late. And I think that that's also true about a lot of the motherhood issues. I think one of the difficulties, like motherhood is such a disadvantage factor in the economic sphere, yeah, but I think a lot of times students don't think about it because it's not real to them until they get there. And then, given how long it takes to make political and legal change in this country by the time you get to a point where you're advocating. When I was 1993, that was the year that I became old enough to vote, i was 18 in 1993. And I remember Family and Medical Leave Act, unpaid parental leave, and I thought that paid maternity leave was around the corner. Paid parental leave was around the corner as a national policy And certainly would be there for me when I had my kids. My kids are teenagers now.

Julie: 1:00:50

And we still don't have it.

Tish: 1:00:53

I know it's amazing.

Ellen: 1:00:55

It is. Thank you so much, julie, for your inspiration today, your knowledge and for your two books, which again we'll put in the show, notes, and Tisha. I don't know, do you have any closing thoughts?

Tish: 1:01:10

Yeah, you know I we're going to have some follow up things on our positively midlife podcastcom. So make sure you come over to our website. We're going to have some maybe action items, things that you can do. You know. Possibly you know we're going to have some things over there to kind of continue this conversation. It is important, i can't tell you enough. I want all of our listeners to rush out and get with the women and buy a copy to share with some friends as well, because it is that amazing and kind of life changing way to see, you know, kind of see what the fight's been. And again, this is the 100th anniversary here in July of women's rights, so make it a topic of conversation all over.

Ellen: 1:02:02

Agreed. Talk about it, ladies, and again come to our website. We'll put some action items there for you And till next week, midlifers. Thanks you.