Etsy Takes Action to Support the Equal Rights Amendment (ERA)

On Monday, Etsy joined a group of 93 companies signing an amicus (or “friend of the court”) brief in support of the ratification of the Equal Rights Amendment (“ERA”) to the U.S. Constitution. This Amendment would, for the first time, enshrine gender equality in the U.S. Constitution.

In the brief, the collective companies outline that the ERA is imperative for the success of the American economy: “The socioeconomic and legal challenges facing women due to gender inequality directly impact businesses in their efforts to recruit and retain women employees and access new markets, making it harder for American businesses to succeed.” This is important not only for our employees, but also for our sellers, 83% of whom are women-owned businesses who need the full protection of law to thrive.

What would the ERA do?

The U.S. Constitution does not articulate gender or sex-based equality. The Center for American Progress notes that, “The absence of an explicit prohibition against sex discrimination in the Constitution remains one key impediment undermining the fight for gender equality and women’s progress overall — and the ERA is an important tool to accomplish this progress.” (CenterforAmerican Progress.org)

The Equal Right’s Amendment would add the language: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex….”

Why hasn’t the ERA already been passed?

The Equal Rights Amendment was first drafted in 1923 by two leaders of the women’s suffrage movement, Alice Paul and Crystal Eastman. They assumed it was the next logical step after women gained suffrage, or the right to vote, in 1920. But nothing happened for more than 50 years.

I remember being a little girl in kindergarten in 1972, hearing about the ERA. The reason it was back in national discourse was because New York’s very own Shirley Chisolm pushed Congress to address inequalities in gender and race, especially as they related to work, pay, education and property rights. She said: “Tremendous amounts of talent are lost to our society just because that talent wears a skirt.”

And she was effective. In 1972, a bipartisan Congress voted to submit the ERA to the states for ratification, with a 1979 deadline. Changing the Constitution requires ratification by three quarters, or 38, of the states. Between 1972 and 1977, 35 states ratified the ERA, leaving the vote just three states short.

In 1978, the National Organization for Women (NOW) organized a march in Washington to make a final push for the ratification of the ERA. While they did not win over additional states, Congress agreed to extend the deadline for ratification until 1982.

But as the 1970s wound down, and as the era of Ronald Reagan emerged, opposition to the ERA started getting louder. The leader of the “anti-ERA” movement was a lawyer from Illinois, Phyllis Schaffley. She was an experienced anti-communist activist, an advocate of traditional stay-at-home roles for women, and successfully reframed the ERA as “Anti-Family” and “Anti-American”. (Checkout the Hulu series “Mrs. America” for a version of this story.)

The 1982 deadline came and went, the ERA ratification was still three states short, and once again, momentum behind the ERA faded.

If you have seen any of the Ruth Bader Ginsburg films, you know that civil rights lawyers (and citizens) grew frustrated waiting for the ERA. Ginsburg, as founding director of the ACLU Women’s Rights Project, took a different path. She fought for sex-based equality in the courts, case by case, using the 14th Amendment Equal Protection Clause. Those fights are still ongoing.

Why are companies raising their voice now?

In recent years, with the resurgence of feminism alongside the #metoo movement, many have acknowledged that there is more work to do for gender equality. With this renewed interest in the ERA, it is back in national discourse. Since 2017, three more states have ratified the ERA, with bipartisan support, bringing the total to 38, and meeting the Constitutional requirement.

But still, the ERA has not been adopted, because there are more road bumps. In the past 50 years, a couple of states said they wanted to rescind their ratification. And what about the lapsed deadlines? This is where it gets technical, and the Brennan Center for Justice offers a helpful summary:

“The[re are] two procedural questions with no settled answer.

First, can Congress act now, nearly 48 years after first proposing the ERA, to waive the lapsed deadline? ERA supporters have long argued that just as Congress had the power to set a deadline, they have the power to lift one. […] A bipartisan measure sponsored by Sens. Ben Cardin (D-MD) and Lisa Murkowski (R-AK) which is currently pending in Congress, seeks to do just that. But while the ERA’s deadline was extended prior to the deadline, there is no precedent for waiving the deadline after its expiration.

Second, can states act to rescind their support of a constitutional amendment before it is finally ratified? Congress confronted this question twice, during the ratification of 14th and 15th Amendments in the years immediately following the Civil War. In each instance, Congress adopted resolutions declaring the amendments ratified, ignoring the purported state rescissions. But in 1980, a federal district court in Idaho ruled that the state’s rescission of the ERA was valid.

Who will decide these questions? Under a 1984 law, the Archivist of the United States is charged with issuing a formal certification after three-quarters of the states have ratified an amendment. When there has been doubt over the validity of an amendment, Congress has acted to declare it valid. This occurred most recently in 1992 when the states ratified the 27th Amendment (about Congressional compensation), 203 years after Congress proposed it.

On January 8, the Justice Department’s Office of Legal Counsel (OLC) issued an opinion arguing that the deadline set by Congress is binding and that the ERA “is no longer pending before the States.” Notably, the opinion rejects the conclusion of the 1977 OLC opinion, which approved of the earlier extension of the ERA’s ratification deadline.

In response, the National Archives and Records Administration has said that the archivist of the United States, David Ferriero, will not certify Virginia’s ratification or add the ERA to the Constitution until a federal court issues an order. (Ferriero had previously accepted the ratifications from both Nevada and Illinois.)”

The amicus brief we have signed onto is a petition to the Federal Court, asking them to order the ratification of the ERA.

I, and Etsy, care deeply about building a fair and equitable workplace, and taking a stand for the ERA reflects those values. Though there is a patchwork of laws and cases that have made many advances over the past half century, the ERA would acknowledge that our nation stands for the foundational premise of equality, regardless of sex. Etsy is proud to be an active voice on this important work.