Equality

By Jill Smolowe

Fifteen years have passed since Congress overwhelmingly endorsed the Equal Rights Amendment. Five years have elapsed since the measure, battered by scare talk of homosexual marriages, unisex bathrooms and female combat duty, went to its death, just three states shy of the 38 needed for ratification. Yet the ERA's 24 key words -- "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex" -- simply refuse to go away. Fifty-one Senators are now cosponsoring an effort to launch the amendment again, and the National Organization for Women has begun a bicentennial drive to revive it.

Although most feminists continue to embrace the amendment, the current call to battle has met with a mixed reaction. Many of the amendment's staunchest advocates are concerned that an ERA campaign now might unwisely divert energy from efforts to tackle such specific and pressing concerns as parental leave, child care and pay equity. "I don't think one amendment will address all these issues, although I think it would be very important to have," says veteran Feminist Betty Friedan. "It's necessary but not sufficient. I don't want to put all my eggs in that one basket." Many ERA supporters are wary of fighting another losing battle. "There would have to be a consensus building up in the country that we just have to have the ERA," says Donna Shalala, the newly named chancellor of the University of Wisconsin at Madison. "I don't sense it's there now."

The lack of momentum stems in part from a series of Supreme Court decisions. Since the early 1970s, the court has used the 14th Amendment's equal-protection clause to strike down gender discrimination, thereby rendering the ERA somewhat redundant. Moreover, like the 14th Amendment, the ERA would apply only to government action. For instance, while it would offer protection to female government workers at the federal, state and local levels, it would not shield women from abuses by private employers.

Still, the spirit behind the ERA has pervaded society. In recent years various successful statutory and judicial actions have advanced equal rights in situations in which the ERA might not apply. Women have been particularly heartened by a new flurry of Supreme Court decisions, most of them dealing with the workplace. Last March the court gave affirmative action a significant boost when it upheld the promotion of a woman over a marginally more qualified male employee in California. Two months earlier the court ruled that a state may require employers to guarantee job reinstatement to women returning from maternity leaves. In June 1986 the Justices ruled that sexual harassment in the workplace is illegal. Last May the court held that states may compel some private all-male clubs to admit female members.

The very need for such legal challenges, however, is a reminder that inequities remain, decisions can be reversed, and statutes can be repealed. "We are at the mercy of a Supreme Court that will interpret equality as it sees fit," says Friedan. Feminists feel the court opened the floodgates to unfair treatment of female students when in February 1984 the Justices $ defanged a law that could be used to stop all federal aid to a school if sex discrimination was shown in any of its education programs, including sports. Legislation that would effectively restore a broad application of the law is before the Senate.

Other legislative efforts have proved successful. Since 1981, Congress has passed provisions under the Economic Equity Act that strengthened pension rights for divorced military spouses, improved benefits for women under private pension plans and assisted divorced parents in collecting child- support payments. "The battle for the ERA has been raging for so long," says Vermont Governor Madeleine Kunin, "that in the interim some of the abuses it was designed to remedy have been remedied by statute, by practice and by regulation."

Nonetheless, job, wage, pension and insurance inequities persist. "We've come a long way, but we have a long way to go," says Rose Bird, former chief justice of the California Supreme Court. "It's part of our heritage to rectify past injustices, and the Constitution is no exception." Without an ERA, some feminists argue, the American charter will continue to bear the sexist imprint of a document written by men, for men.

With reporting by D. Blake Hallanan/Los Angeles and Melissa Ludtke/Boston