Tom Jipping joins the podcast to discuss the constitutionality of the Equal Rights Amendment. First proposed almost a century ago and passed by Congress in 1972, Tom delves into time limits and state ratification and how proponents of the ERA are doing whatever they can to skirt the system. 

Thomas L. Jipping is deputy director of Edwin Meese III Center for Legal and Judicial Studies and a senior legal fellow in the Center. Tom joined Heritage in May 2018 after 15 years on the staff of U.S. Senator Orrin Hatch (R-Utah), including several as his chief counsel on the Senate Judiciary Committee. He spent the previous 13 years at two public policy organizations: Concerned Women for America and the Free Congress Foundation.

Transcript

Beverly:

And welcome to She Thinks, a podcast where you’re allowed to think of yourself. I’m your host, Beverly Hallberg and on today’s episode, we discussed the equal rights amendment from a constitutional perspective. The question is, not only whether the ERA should be adopted altogether, but whether it legally can be adopted. Well, Tom Jipping joins us to break it all down. Tom Jipping is the Deputy Director at the Edwin Meese, the third Center for Legal and Judicial Studies and a senior legal fellow in the Center. Tom joined Heritage in May 2018 after 15 years on the staff of US Senator Orrin Hatch, including several as his chief counsel on the Senate Judiciary Committee. He spent the previous 13 years at two public policy organizations Concerned Women for America and the Free Congress Foundation. Tom, a pleasure to have you on She Thinks.

Tom:

Well, thanks very much for having me.

Beverly:

Now, I just want to start a software we currently are when it comes to the equal rights amendment. There’s been a lot of movement. We know Virginia had their own battle with the state legislature there, but can you give us, and just start us off with a brief overview of where we are?

Tom:

Sure. Under the constitution it takes two thirds of both houses of Congress to propose an amendment that was done in March of 1972 and then the constitution requires that three fourths of the states approve it before it can be part of the constitution. And that’s where we’re at today. 35 States had ratified it back in the 1970s, five of those states changed their mind, and then it sat there dormant for about 30 years until 2017 when a group of activists thought, “Well, let’s see if we can pick up where they left off and try again.” And Nevada passed a resolution ratifying it, 2018 Illinois did, and then just a couple months ago, Virginia did. So on the surface it looks like if you count the 35 plus the three that 38 states, that’s three quarters of the states. But that’s only if you look on the surface. There’s a lot of other issues that really throw into doubt whether that is as successful as it seems. ERA supporters claim it is, but I think they wrong.

Beverly:

Well, let’s start with the year that you mentioned 1972, the ERA when this was first being proposed, why was there so much support behind it? What were they trying to achieve?

Tom:

Well, the campaign to address women’s rights through the constitution had actually begun the 1920s on the heels of adoption of the 19th Amendment, which gave women the right to vote, but it was controversial from the start. There were supporters who said, “We need to equalize the legal status of men and women across the board.” There were opponents who said, “But if you do that, there’s no room for legitimate differences between men and women. We think that states should be able to pursue a policy approaches.” That debate continued more than a thousand resolutions were in introduced in Congress to propose the amendment. But it didn’t get that two thirds super majority until 1972 and that was really where it launched and at least initially 20 states ratified it within a few months.

I think the media coverage and of course, on the heels of the 1960s where there was a lot of social and cultural upheaval, people were just focusing on the idea of equality. They looked at the title of it, the Equal Rights Amendment, who could be against equal rights. And so there was an initial surge of a couple of dozen states right out of the gate. And then people started looking at it more carefully, that gave it more scrutiny or other organizations, including women’s organizations. Phyllis Schlafly, who I had started help start the pro-family movement in the early 70s, really raise the profile of some of the issues below the surface. It’s not a, just a cliche. It’s an actual amendment to the constitution and what else could it do, what impact would it have on a whole range of issues. The more scrutiny it got, the more critical people were of it.

And that’s why five of the states that didn’t approve it withdrew, and the whole effort to ratify it ground to a halt pretty quickly. Congress had set a deadline for those 38 states to get on board and it failed. And I think that was why because state legislatures looked past the cliche, pass the motto, pass the surface and it actually started looking carefully at what could it be used to do? Are some of these objectives already addressed by the law, either federal or state, and do the benefits outweigh the costs and that’s why the campaign eventually failed.

Beverly:

And I want to talk about that time limit. Is the time limit endless? I believe there was an extension granted at a certain point, but where is the time limit fit in especially, we talk about something from 1972. A lot has changed in society since 1972?

Tom:

They’re really have. And I think it’s first important to point out. Congress has set time limits when it proposes amendments for a long time. Eight amendments that are currently in the constitution have time limits. More than 60 of the resolutions that were introduced in Congress to propose the ERA had time limits. So the Supreme Court has said unanimously that Congress does have authority to set a ratification deadline when it proposes an amendment. And with something that was potentially controversial like this one, that was an important element in members of Congress voting to propose it. I think there were members who would not have voted to propose it if it didn’t have a deadline. And there were probably some states that wouldn’t have ratified it if it didn’t have a deadline. So that deadline was an important factor in sending the ERA to the states. And frankly, government has to follow the rules. The deadline passed, not enough states ratified, and it’s a really pretty straightforward issue. If folks want the ERA to be part of the constitution, they have to start over.

Beverly:

And tell me a little bit about that debate over the states that have, I believe it’s called “rescinded”. Their vote, they said that they don’t want to be part of this anymore. Do you find that proponents of the ERA just aren’t listening to that or paying attention to that or how is that factoring in from a legal perspective?

Tom:

Well, as I say, I think five of the states that ratified, they jumped right out of the gate and got swept up in that early wave of states that were just looking at the surface, took another look, and it wasn’t that they changed their mind 30 years later. We’re talking about it within a five year timeframe, they changed their mind. So it was mostly very same people in these legislatures who had voted for the ERA, took a harder look and they changed their mind and they did so on purpose. There is a legal question whether is the only thing that states can do with a proposed amendment say yes or can they also changed their mind.

ERA supporters today claim that, well, states may only say yes. Once they do, they’re locked in and they just can’t change their mind and that makes no sense whatsoever. Until three fourths of the states have said yes, that’s the constitution requires. But until then, state legislatures make decisions about such things in lots of different ways, and there might be an election, there might be, the state legislature might want to do some polling of the residents of their state to find more information about what they think it. It could actually be a very responsible thing to do, to reconsider and to make sure that the decision that they’re making is the right one.

I think to me, there’s no question, but that states may say either yes or no. States may change their mind, until that three quarters, until that 38 state limit is reached, states can do, will follow whatever process they want in making their decision. The constitution doesn’t say otherwise. And so I believe only 30 states had validly ratified the ERA by the time the deadline expired. So even if there was a chance to pick it up again, even if additional states could ratify today, even with these three, Nevada, Illinois, and Virginia getting on board the last couple of years, they’re still five states short.

So disappointed in ERA supporters. They don’t just make arguments why we still need this change in the constitution. They’re trying to rig the rules, they’re trying to reg the process, trying to skirt around and try to avoid the requirements of the ordinary process that our government has to follow with these things and that’s just cheating. There’s big differences about whether we need the ERA, whether it could be used to promote abortion or other kinds of things that may be aren’t intended or something like that. That’s a legitimate debate, but you’re not supposed to cheat. And that’s what’s going on today.

Beverly:

So you say that they’re cheating. Who would it be or what entity is the one who needs to step in and do something about this? So obviously people who are supporters of this think that the way that they’re going about it is completely acceptable. Who decides this from a constitutional perspective, whether or not it is allowed?

Tom:

Well, that’s a complicated question because not every issue, not every disagreement in our political system necessarily ends up in court. First and foremost, our legislators take an oath to support and defend the constitution. They take an oath to approach their job in the right way. And so I live in Virginia, Virginia legislators who voted to ratify an amendment that is not pending before them. They voted to ratify an amendment that doesn’t exist. How foolish is that? They bear that responsibility because they swore an oath to support and defend the kind of institutional process that they’re supposed to follow. And elections, perhaps that ought to be an issue in elections.

Ultimately, under a federal statute, the Archivist of the United States, that’s a position that heads the National Archive, the Archivist of the United States has to officially certify that three quarters of the states have ratified a proposal for it to become part of the constitution. And the archivist has said, and I think correctly, that he’s not going to certify the ERA unless he’s ordered to by the courts, because as he looks at it, the ERA, it didn’t meet the rules, it didn’t follow the right process. So ultimately though, I think it’s our representatives, our members of Congress, our members of our state legislatures. You’re not supposed to… Just because you want something doesn’t mean that you can get it any way you want. They say the ends justify the means. That’s a terrible way for our government to operate. And I think we ought to expect more of that from our legislators. I think we ought to expect them to do it the right way, no matter which position they take on an issue like this.

Beverly:

And so in your perspective, where does this go from here? You talked about the roadblocks to this amendment and what proponents of this amendment are facing just based on the timeframe and the states needed to ratify this? I don’t think they stop. I think they continue. What do you think their next move is?

Tom:

Well, as I said, the archivist has made a decision that he’s not going to certify the ERA unless the courts require him to. There are three lawsuits that have been filed on this issue. There are those last three states to ratify it, Nevada, Illinois and Virginia. They went to court to say, “Look, we think our ratification is valid and we want the courts to order the archivists to give it the thumbs up.” There are three states that had rescinded their ratification years ago and they have filed suit on the other side of that issue to say that, we want the archivist to give it a thumbs down and then there’s a third lawsuit that also wants the archivist to go ahead and certify it. We’ll see how those lawsuits go forward.

There’s a lot of complicated rules that govern whether certain kinds of lawsuits are allowed in court. Just because someone wants to go to court doesn’t mean they are allowed to. So that’ll be a long process to see whether those lawsuits go anywhere. The other thing that’s being done, ERA supporters in Congress have pretended that Congress can take that ratification deadline out of the 1972 ERA, just like some states have said, “We can still ratify it.” People in Congress say, “Well, we can still amend it.” Well, that’s just as silly as the state saying they can still ratify. Congress can’t amend a resolution that was passed 40 years ago, but Democrats in the House of Representatives had a vote on that just last week and pretended, acted as if they were taking that deadline out so that it can all move forward. It’s a fiction.

They’re going through, it’s a charade because it’s not real. And I think it would probably be better for everybody if they would just… There are resolutions that have been introduced recently to start the process over and that’s what they ought to do. We can ever fresh debate about whether we still need a constitutional amendment to address this issue, what the implications or consequences of it might be. I think the supporters want to rig the process and cheat a little bit because they don’t think if they started over that it would succeed. But I do think it would be in everybody’s interest to do that.

Beverly:

And final question for you. You’ve mentioned just a little bit ago that the equal rights amendment has a pleasing sounding name who’s against equal rights. It sounds great. But can you give us from a judicial perspective, what’s already in the constitution that protects women in this country? I know that of course, there were 100 of women being able to vote that’s 100 year anniversary this year, but for women who may say, “On the surface, that sounds great.” Of course, women should have equal rights. How do we talk about the fact that we already do?

Tom:

Well, there are several sources of legal protection for the rights of women. The U.S. Constitution is only one of them. You mentioned the 19th Amendment and voting. The courts have interpreted other provisions of the constitution like the 14th Amendment in ways that even since the ERA failed a few decades ago have raised the level of judicial protection through the U.S. Constitution. There are state constitution almost half the states have their own state ERAs in their state constitutions. There are federal statutes. Everything from the Equal Pay Act to the laws prohibiting pregnancy discrimination and so on.

There are state laws that labor laws. There are a host of legal protections that address virtually all of the concerns that the supporters of the ERA originally had raised. And of course, women just in a general sense are a much more significant and powerful part of the political process than they’ve ever been. And so those who are still pursuing are still on to pursue the ERA. My concern is that, while those issues have been addressed, they may want to, under the cover of the ERA retool it to try to achieve other kinds of more divisive and controversial results. And I think that would be an unwise approach, but they at least ought to be honest about it and have an open debate.

Beverly:

Yeah, and I think those debates are going to continue. I appreciate you coming on and sharing from a legal perspective how this seems to be the wrong way of trying to get an ERA passed and also bringing up the other protections women do have because I think it’s an important thing for women especially to talk about how the ERA doesn’t protect us in many ways. It could actually harm us. I want to let listeners know that IWF has some great resources on iwf.org. So do check them out where we talk a lot more about what the implications could mean for women, but for now, Tom Jipping, thank you so much for your time.

Tom:

Thanks for having me

Beverly:

And thank you all for joining us today. Before you go, I did want to let you know of another great podcast you should subscribe to in addition to She Thinks. It’s called Problematic Women and it’s hosted by Kelsey Bolar and Lauren Evans where they both sort through the news to bring stories and interviews that are of particular interest to conservative leaning or problematic women. That is women who’s used and opinions are often excluded or mocked by those on the so-called feminist left. Every Thursday hear them talk about everything from pop culture to policy and politics by searching for Problematic Women wherever you get your podcasts. Last, if you enjoyed this episode of She Thinks, do leave us a rating or a review on iTunes, it does help and we’d love it if you shared this episode so your friends know where they can find more She Thinks episodes. From all of us here at Independent Women’s Forum, thanks for listening.