35 years later, Illinois targeted again with ERA resurgence

SPRINGFIELD — Protestors chained themselves together on the Illinois Capitol steps. Some on hunger strikes, having gone a month without food, sat inside under the dome. Others staged a House-floor sit-in, forming their hands into illuminati pyramids signifying the few at the top commanding the many at the bottom.

And when the civil disobedience dissolved on June 30, 1982, without legislative action, the Equal Rights Amendment to the U.S. Constitution was presumed dead.

But 45 years after Congress approved the ERA and sent it to the states for ratification, Illinois is back at the center of a national movement to revive the issue. An Illinois Senate committee approved the ERA this month, setting up a floor vote not yet scheduled.

Here are some questions and answers about the issue:

Q: WHAT IS THE ERA?

A: The Equal Rights Amendment would prohibit the denial of any civil right on the basis of sex. With the 1920 approval of women’s suffrage in the 19th Amendment, some feminists thought the struggle was over. Others pushed on and introduced the first ERA in 1923. Congress finally adopted it in 1972 and set a seven-year deadline, later extended to June 30, 1982, for three-quarters, or 38, of the states to assent.

Q: HOW DID ILLINOIS END UP IN THE SPOTLIGHT?

A: In fewer than five years after congressional approval, 35 states signed on to ERA. But by the mid-70s, a conservative backlash began, led by the late Phyllis Schlafly, a constitutional lawyer who argued that ERA would lead to single-sex restrooms, same-sex marriage, the end of alimony and the tendency for women to get custody of children in divorce, and the drafting of women into combat.

As the only northern industrial state not to have ratified it, Illinois became a battleground, ending in weeks of civil disobedience in June 1982 as the clock ticked down.

Lawmakers in both houses have approved the ERA, but never in the same year. The Senate endorsed it in 1972 and 2014, the House in 1975 and 2003.

Ironically, the 1970 Illinois Constitution included an ERA, guaranteeing equal protection of the laws regardless of sex. It does not apply to U.S. law, however.

Q: IS ERA RELEVANT TODAY?

A: An ERA would likely put gender in the same legal class as race, national origin, religion and alienage. Courts apply the 14th Amendment’s equal protection clause more closely to these “suspect classifications,” which they have determined are more likely to face discrimination. So women would have fewer legal stumbling blocks to maneuver when seeking discrimination remedies, said Amy Jo Conroy of the American Association of University Women.

But opponents contend women would lose “carve-out” legal interpretations because of biological differences with men. For example, pregnant women would lose benefit of Illinois law providing more workplace rest periods, said Elise Bouc, state chairwoman of Illinois Stop ERA. She said inmates of both sexes would share prisons and alimony and child support to women in divorce could be in jeopardy.

Q: IF THE DEADLINE PASSED, HOW CAN ERA STILL BE IN PLAY?

A: Supporters took heart with the adoption of the 27th Amendment in 1992, which delays changes in congressional salary from taking effect until after the subsequent election. It was proposed on Sept. 25, 1789 — the same day as the first 10 amendments that became the Bill of Rights. A movement began in the 1980s around the idea that the proposal remained viable because Congress had not imposed a deadline. And when further states demanded action, Congress was not about to turn down a popular restriction on pay hikes.

Advocates got a boost in the late 1990s with the introduction of the legal theory that Article V of the Constitution doesn’t mention a deadline for states to OK amendments and a 1939 U.S. Supreme Court case which declared Congress can determine if state ratification occurred within a reasonable time period.

Q: WHAT ABOUT STATES THAT RESCINDED THEIR PRO-ERA VOTES?

A: In March, Nevada became the 36th state to ratify the ERA. With a thumbs-up from two more legislatures, advocates would push for Congress to recognize the required 38-state ratification necessary for ERA approval.

But four states voted in the 1970s to rescind their pro-ERA votes: Nebraska, Tennessee, Idaho and Kentucky. ERA supporters point out that the Constitution speaks only to states ratifying amendments; there’s no mention of a do-over.

The Illinois sponsor, Sen. Heather Steans, a Chicago Democrat, is gauging House support before seeking a Senate floor vote. ERA legislation is pending this spring in Arizona, Florida, North Carolina, Utah and Virginia. Virginia is most often mentioned as the third leg of the resurgent ERA stool.

Q: WHAT WILL HAPPEN?

A: Ann Lousin, a constitutional scholar at The John Marshall Law School who watched the early ERA debate and scoured state laws for gender bias as Illinois House parliamentarian in the early 1970s, said if the number of ratifying states hits 38, the issue will undoubtedly land in court. And courts typically steer clear of telling Congress how to make — or change — its rules.