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Posie Cowan is the co-founder of Equal Rights Maine whose mission is to educate the public and legislators about the importance of having both a federal and Maine equal rights amendment. She lives in Brooksville.
Saturday is Equality Day. Most people have no idea what it is.
Equality Day celebrates women winning the right to vote. After 75 years of advocating and lobbying for it, the 19th Amendment expanding suffrage became part of the U.S. Constitution in 1920. But women are still not treated equally in the Constitution. There is no place that specifically prohibits discrimination based on sex.
Soon after the passage of the suffrage amendment, Alice Paul, one of the leaders who reinvigorated the suffrage campaign, said women would not be treated equally until there was a specific amendment in the Constitution guaranteeing equal legal rights for women. My great-grandmother, Sophie Meredith, worked with Paul on the suffrage amendment and was present in Seneca Falls when Paul introduced the equal rights amendment in 1923. She would be shocked that for the last 100 years men and women have been trying to pass it and that women still do not have equal legal rights in our Constitution.
When the required 38th state, Virginia, ratified the equal rights amendment in 2020, the National Archivist should have published the equal rights amendment as the 28th amendment. The administration of President Donald Trump, on the advice of the Department of Justice’s Office of Legal Counsel, told the archivist not to record it because not enough states had ratified it by the time limit.
When President Joe Biden was elected, the Office of Legal Counsel reviewed the opinion and said that Congress should determine if the time limit applies. Article V of the Constitution does not mention any role for the executive branch in passing an amendment and it does not mention any role for Congress after an amendment has been ratified. Regardless, the executive branch made legal opinions of the validity of the 28th amendment.
There are currently bills, H.J. Res 25 in the U.S. House and S.J. Res. 4 in the Senate, that would direct Congress to lift the time limit and acknowledge that the equal rights act is the 28th amendment. Now there are likely not enough votes in either house to pass them. This is surprising since nearly 80 percent of Americans support an equal rights amendment.
Highly respected constitutional legal scholars have said that the equal rights amendment
has satisfied all the requirements in Article V of the Constitution. The legal scholars say that the time limit does not apply because it was in the preamble and that states only voted on the actual amendment. A well-known constitutional lawyer, Professor Laurence Tribe, who retired from Harvard Law School, suggested in a letter to Caroline Mahoney that Congress pass bills acknowledging the equal rights amendment as the 28th amendment and that the time limit be lifted. He recommended this legislative action since there will undoubtedly be legal cases challenging the issue of the time limit and the issue of whether the Constitution allows states to rescind their ratification. These bills would show Congress’s support of the equal rights amendment fulfilling all the requirements.
Why shouldn’t women have legal rights in the Constitution? The old argument that the 14th Amendment is sufficient is not accurate because the standard for establishing discrimination by sex is much higher than proving discrimination based on race, religion or ethnicity. It needs to be very clear that women have the same legal rights as men and that there should not be any discrimination based on sex. A 28th amendment would do just that
My hope is that my granddaughters and great granddaughters will not have to be fighting for women’s legal rights to be clearly stated in the Constitution a hundred years from now.
And that Equality Day on every Aug. 26 celebrates not only that women won the right to vote but that women were in the Constitution and had the same equal legal rights as men.