Jennifer Braceras of Independent Women’s Law Center and Emma Waters of the Heritage Foundation join High Noon podcast to discuss why they oppose the Equal Rights Amendment. This recording took place directly after a Senate Judiciary hearing on the ERA, in which Jennifer was a key witness. The ladies chat about the consequences of the ERA, the amendment process, and the importance of recognizing biological differences between men and women.
High Noon is an intellectual download featuring conversations that make possible a free society. The podcast features interesting thinkers from all parts of the political spectrum to discuss the most controversial subjects of the day in a way that hopes to advance our common American future. Hosted by Inez Stepman of Independent Women’s Forum.
TRANSCRIPT
Inez Stepman:
Welcome to High Noon, where we talk about controversial subjects with interesting people. I have two interesting women here with me today to talk about a really important subject, the so-called Equal Rights Amendment. Emma Waters is a research associate… Research associate, sorry, I’m stumbling over my words today, in the Richard and Helen DeVos Center for Life, Religion, and Family at The Heritage Foundation. She’s also a fellow with us at IWF. Jennifer Braceras is my intrepid colleague. She’s a director of the Independent Women’s Law Center, which is connected to IW, which is very, very scary and nefarious as we’ve discovered according to Senator Whitehouse today in this hearing that we’re going to talk about. Welcome, ladies, to High Noon. I’m so glad to have you.
Emma Waters:
Thanks for having us on.
Jennifer Braceras:
Yeah, thank you.
Inez Stepman:
I wanted to do this kind of, whatever, hash out post-game kind of chat about this hearing that happened today. We’re speaking on Tuesday afternoon. This hearing happened on Tuesday morning in the Senate Judiciary Committee. Jennifer, you testified against the ERA, along with a fellow witness against it. Democrats got three witnesses since they hold the majority. What was your impression? Let’s start with you, Jennifer. What was your impression about the ERA hearing? What was your impression being in the room? There was quite a bit of kerfuffle for what are usually pretty dry Senate hearings.
Jennifer Braceras:
Yeah. Well, I mean, to some extent all Senate hearings are political theater. I think this one more so than others because, frankly, I think that even the senators that are for “lifting the deadline” and pushing this forward know that that’s not actually legal and that it’s an illegitimate process. I think they know in their heart of hearts that the ERA expired in 1979 and this is just an attempt to get Republicans on the record as being against it so that they, the Democrats, can go out and say “Republicans are against women’s equality”, which of course isn’t true because we all know that men and women are equal in this country and women are protected under federal constitutional law, state constitutional law and dozens and dozens and dozens of statutes. It was a lot of political theater.
Inez Stepman:
Emma, you were in the audience today. You’ve got this… For those of us who are watching on YouTube, you have this “stop ERA-sing me”, E-R-A, ERA-sing me, T-shirt. “Stop ERA-sing us.” What was your impression of the energy in the hearing today? I mentioned there were a couple interruptions that took a long time. Once again, Capitol police, very slow on the mark.
Jennifer Braceras:
Very slow on the uptake.
Inez Stepman:
They let him just go on and on yelling and cutting off testimony.
Emma Waters:
And notably, it was Jennifer’s testimony that got cut off, not anyone who was supporting the ERA, and then it was questioning from Republican members not Democrat members at the same time. Even… We had three protestors stand up and they were three of the youngest women on the pro-ERA side, and they were in their 30s and 40s if that tells you anything about the age makeup of the hearing, is that the 30s and 40s were about the youngest.
Jennifer Braceras:
It’s funny, I couldn’t see them because they were behind me so I had no idea.
Emma Waters:
Yeah. Yeah, no, the breakdown was insane. We had two packed outsides, pro-ERA, anti-ERA. Those who were opposed to the ERA and its very anti-woman efforts were all about 30 and younger, and so it was a very young, vibrant showing, and then the pro-ERA side was on average women in their 60s, some a little older, some a little younger, and so very much the ERA 1970s generation coming out in support of this bill. But it really begs the question of like, “Well, if our generation doesn’t see a need for it then I’m wondering why we’re pushing for it.” But the energy was very… It was just a very lively environment to be in. Jennifer killed it in the testimony so everyone was on the edge of their seats like, “I can’t believe they just said that about the ERA.” And then Jennifer would just come in and clear it out. It was a lively time, to say the least.
Jennifer Braceras:
I do think the age difference is interesting because, as you and I have talked a lot about, Inez, fully 62% of American voters were either not yet born when this was first debated in the States or, like maybe they were about three or four years old. These are the very people that haven’t had a say. They’re the people who are effectively disfranchised if Congress is to shoehorn this into the Constitution without sending it back to the states for a new discussion. On the other side, I can see why the women in their 60s were there for the ERA to some extent because they remember a time when women couldn’t take out credit cards without their husband’s permission and before sexual harassment was unlawful and they sort of remember the battle days and seem to be kind of living in fear that they’re coming back when there’s no evidence that they are.
Emma Waters:
Yeah. No, on that, it’s just an interesting perspective because then my generation… Gen Z was born a decade and a half at the earliest after the ERA already expired but we, thankfully, have come to age under this regime of good constitutional protections, good laws that actually protect women and even advocate for them, so everything from the Pregnancy Discrimination Act to healthcare or Medicaid programs that specifically help mothers or even Title IX. These are things that we’ve just been able to take for granted and greatly benefit from that it seems that those supporting the ERA just didn’t have at the time. But yeah.
Inez Stepman:
Yeah, it’s funny. I disagree with about at least half of those protections, but they are in place and the interpretation of the Equal Protection Clause that includes a intermediate scrutiny for sex. But before we get into some of the legal details, Jennifer, what was the argument that you gave in the hearing today, the fundamental argument about why this amendment, which as was repeated over and over again by the proponents of it, “Oh, this is about basic fundamental equality between men and women.” Why are you opposed to this amendment? What argument did you give the senators against it and against voting for this resolution?
Jennifer Braceras:
Well, two things. I mean, first of all, I’m opposed to the process, which is anti-democratic because the ERA has expired and, as I said previously, the current state legislators haven’t had a chance to vote on it. Only three states have voted on it this century, and query what they were even voting on since it had already expired. We don’t amend the Constitution lightly in this country, and when we do it’s important that the states give not just their consent, but informed consent and that we have a discussion about what this means. I do think it needs to go back to the states not only because it’s expired, but because the states need to consider it in light of changed circumstances.
On the merits itself, one of the things that’s changed dramatically is the definition of sex. In 1971, everybody knew that the word sex referred to biological sex. Well, today there are many people who argue that it should include gender identity. I don’t believe that. I think sex and gender identity are separate things, but if the ERA prohibits government discrimination on the basis of sex, is that going to now mean government discrimination on the basis of gender identity? If so, what does that mean for federally run prisons, state colleges, and universities, private spaces at state colleges and universities? Does that mean that men can self-identify into women’s spaces as a matter of constitutional right? These are all questions that need to be answered, I think before we can change the highest law of the land.
Inez Stepman:
Yeah. There’s an underlying truth here, which is that men and women are biologically different. Those differences are sometimes relevant. Sometimes they’re not relevant, and sometimes women have been discriminated against unfairly because somebody thought, for example, that a woman can’t be a chemist, isn’t qualified to be a chemist. We now think that that kind of discrimination probably unfair, but there are plenty of “discriminations” that women rely on every single day in this country, the discrimination to request a female TSA agent if they’re going to invade your other rights by patting you down at the airport, the right to be able to be housed in a dorm or compete on a public university sports team with people who are the same sex as you, to compete against other women and then potentially win.
There was a lot of contempt for those kinds of issues coming from the Democratic side, particularly the senators on the committee. Jennifer, how did you feel when Senator Dick Durbin basically said, “These are fake concerns. They don’t matter. Women’s sports don’t matter.” One of the Democratic witnesses also repeated this over and over again, “Oh, women don’t care about men in women’s sports, women that… These are irrelevant concerns.” I mean, how did you feel when you heard that?
Jennifer Braceras:
Well, they’re not irrelevant concerns. I mean, since 1972 the number of women playing sports both at the high school and collegiate level has increased exponentially and that’s a good thing. We want women to have the same opportunities as men to compete and to win, but also participation in sports is a huge entryway to the boardroom. Women who have success in team sports, particularly at the collegiate level, often go on to do great things in the business world, in law, and medicine. So it’s a pathway for women and the notion that Senator Durbin said it doesn’t matter if boys take spots on women’s field hockey teams… It’s rather upsetting. I’m not going to hold my breath waiting for Billie Jean King and the Women’s Sports Foundation to come out and condemn him for it, but maybe Martina Navratilova will, maybe some of them will.
Inez Stepman:
Emma, same question to you because on some level I feel like he had a point, but almost the opposite, from the opposite perspective. When we talk about women’s sports, it can seem like, “Okay. Is it really the end of the world? Yes, it’s unfair. Even if we acknowledge that, is it really the end of the world if the 200-meter butterfly is swum faster by a man?” Have we devalued sex differences in all of these other categories such that we ended up in a place where even something as obvious as the unfairness of having Lia Thomas come in and compete as a man against women in the 200-meter butterfly doesn’t seem like an absurdity?
Emma Waters:
Yeah, no, I think you’re absolutely right. Part of this even goes back to the conservative movement’s comfort with making sex merely a material argument, and so you can avoid uncomfortable arguments about morality or even the spiritual nature of what it means to be a man and a woman if you just make it about biological sex. I think this is where we’ve actually hurt ourselves in the long run because then when it comes to debates like this… And you hear Democrats saying, “Well, I think equality of rights and what it means to be a woman is about way more than sports.” Obviously, that’s true, but it is certainly not anything less than that when it comes to what it means to be a man and woman in your biological framing, as well as what it means to be a man and woman in the way that you interact and the greater impact that has.
So sports I think has rightly been used as a very obvious example of how this sort of discrimination and this sort of devaluing of sex has taken place. I also think that they’re right that it’s a whole lot more than that, but it certainly cannot be less than that at the same time. You need both sides of the argument, which I think a lot of people are making in this, but their approach of just saying, “No, well, we don’t actually care about women’s sports,” doesn’t seem to be the winning argument for most people in America today.
Inez Stepman:
Yeah, this was a popular argument. Polling on these issues is very good about excluding men from female sports teams, excluding men from female prisons, excluding men from… We’re dealing with all of these issues in the transgender identification context where men like Lia Thomas identify as a woman even though he’s very clearly a biological man and has proven that in the locker room with his fellow teammates. How does this affect… Because the whole country has been talking about all of these sort of same set of issues, women’s locker rooms, women’s spaces, women’s competitions, women’s prisons, the example I gave about the TSA, all of these instances in which we recognize sex in the context of people who identify as the opposite sex and therefore are claiming special privileges to be treated as the opposite sex in these contexts. How does the ERA expand this out, Jennifer? Because it seems like it almost makes it moot, this whole transgender issue.
Jennifer Braceras:
Yeah. No, that’s true. I mean, the original problems with… The problems with the ERA predate issues of gender identity for sure. The problem is that what proponents of the ERA argue is that it would then require courts to treat race and sex the same. In this country, we basically regard any separation of people on the basis of race as illegitimate and immoral. That is not the case with sex, but the proponents of the ERA… The reason they want it, the only reason they want it, is because it would do something more than what the Equal Protection Clause already does. The Equal Protection Clause… The interpretation of the Equal Protection Clause that we currently have is that you have to treat similarly situated men and women equally but in cases where biology or privacy or equal opportunity matter, they don’t have to be treated exactly the same all the time so it’s a flexible standard. Not so with race. Senator Lee pointed out today strict scrutiny is almost always fatal in fact. If we apply that level of scrutiny to single-sex opportunities, they will almost all be struck down.
Inez Stepman:
Emma, how can we make these kinds of arguments? You mentioned that actually there’s sort of a reverse generational divide going on here in that room, but if you look at polling, for example, you see that millennials, my generation, and then Gen Z, yours… We have three generations of women here, Gen X, millennials, and Gen Z. How do you think that we can make this argument not just about the ERA, but about the importance of sex differences to a new generation of women who, according to polling, are very concerned and feel very much victimized as women? We saw the representation of that in the Democratic witness. I’m forgetting her name off the top of my head. Maybe you remember, Jennifer, but one of the Democratic-
Jennifer Braceras:
Thursday-
Inez Stepman:
Sorry?
Jennifer Braceras:
I think her name was Thursday Williams.
Inez Stepman:
Thursday Williams. She… I mean, every sentence that she was saying, even though she started out with her great academic trajectory and attending college and all the things that she had done that had qualified her to sit in that hearing today, but every sentence out of her mouth was some form of victimhood and almost all of them started with “I.” “I as a Black woman am victimized all the time.” Literally, that was the structure of almost every sentence that came out of her mouth. I mean, how do we argue about the importance and the subtlety, honestly, of sex differences and the beauty of sex differences to folks who first and foremost see that sex identity as, one, apparently completely fluid? One of the other witnesses started with pronouns so I really wonder what she thinks the ERA has to say about women and the definition of women. But how can we make that kind of argument to people who see their sex as fluid and as really as a burden that has led to them being victimized and discriminated against by society even though all the statistics say that’s not true?
Emma Waters:
Yeah, it’s a great question. I think just the great fight of our generation is this messaging battle that, in reality, these Ivy League or going on to Ivy League educated women are maybe not being discriminated against in the ways that they’re claiming. One of… I think it was Senator Murkowski started off some of her questioning just citing all the ways that women don’t have exact 50/50 representation with men, so 50% of CEOs aren’t women, 50% of Supreme Court justices aren’t women, and she-
Jennifer Braceras:
Well, what was most flabbergasting–sorry, I’m just floored by what she said–is that the Senate itself isn’t 50% female. I thought to myself, “Well, how on earth would the ERA change that? I mean, are you suggesting that we’re not going to let people vote for their senators anymore and that we’re going to assign representation on the basis of sex?”
Emma Waters:
Right. Well, and this is what was so mind-boggling about the whole-
Jennifer Braceras:
It was mind-boggling.
Emma Waters:
Yeah, because she wasn’t foolish enough to say, “And the ERA would fix that,” but it was this two-sided argument where she was like, “We support the ERA. As a side note, did you know that women don’t have 50/50 representation in every part of society?” She never connected those two but it was certainly this emotional ploy suggesting to our generation of women that somehow they are being discriminated against because there isn’t this 50/50 representation, which, as Jennifer pointed out, one, if you pointed to it you would be violating the rights and choice of every American when it comes to voting. But there just seems to be this… Just this really disingenuous arguments being made because also 50% of trash pickup people and 50% of the people in prison aren’t women either. I think that-
Jennifer Braceras:
Maybe she thinks that each state should have one male senator and one female senator, and if you’re a biological female you can only run for that particular slot.
Emma Waters:
And you know-
Jennifer Braceras:
I mean, I’d like to tease this out with her a little more. What exactly does she-
Emma Waters:
I’m sure there are a lot of people who would want that, right? I think that would probably be pretty popular.
Jennifer Braceras:
I don’t know. I think it’s insanity, actually, but it-
Emma Waters:
It totally overlooks, too, the decision-making power of women. It’s saying that all of the women who have chosen marriage, who have chosen to stay at home with their kids… You saw a huge decline in women’s workforce participation after COVID, and notably, these are women who were working less than sexy jobs. They’re working at fast food restaurants, they’re working at administrators, they’re working in offices that don’t have the same glitz and glam as many of these women are advocating for and it seems that those are actually decisions that they really want to make. 2021 polling from American Compass showed that aside from the upper-income bracket, most women actually want to be either at home full-time or working a flexible part-time job that allows them to be present with their family and with their community. These are the self-reported desires of women and so it seems to be really disrespectful to the majority of the women in the nation saying that you actually aren’t smart enough to make your own decisions about what you value.
Jennifer Braceras:
I think she’s also making another sort of really disturbing point, which is that only women can represent other women. I mean, so can only Blacks represent Blacks and only Asians represent Asians? I mean, I live in Massachusetts. Elizabeth Warren is my senator and my former law professor. I didn’t vote for her, I never will vote for her. I don’t feel that I have to vote for her simply because she’s a woman. I’m going to vote for the person whose viewpoints most reflect my own. I mean, the notion that women can only be represented by other women is really offensive.
Emma Waters:
Yeah. I think this takes it in a totally different direction, but I was formed and trained by a fantastic family structure studies professor at UVA. I think what’s so fascinating in looking at our demographic, even voting trends and the sort of arguments that are made around the ERA, a lot… I would say Gen Z and even millennials, a lot of them are being raised in single-parent homes with fathers who aren’t in the home in many instances or are products of divorce a lot of times. It seems that they’ve seen men in their lives let them down in very legitimate, severe ways, and the people, like the families, the mother and father that were supposed to be there for them, the parents that were supposed to be there for them, in some capacity one way or the other weren’t.
It seems that this sort of rage at the failure on the familial level is now coming out on the national level and saying that there was some sort of wrong done to them, but instead of looking maybe closest to home where that wrong probably has and did take place statistically, it’s being thrown on the national level. Even in changing the conversation, I think it’s just pointing out all of the ways that yes, there are legal distinctions in law between men and women and, from every case that I’ve reviewed, those legal distinctions benefit women and actually protect them or provide for them or create a space for them that they otherwise wouldn’t have if something like the Equal Rights Amendment was amended.
Inez Stepman:
I want to return to something that you mentioned kind of in passing about women not going back to work in higher numbers after COVID. And keeping with this generational sort of conversation, it seems to me that there has been… we have passed peak girl boss, that younger women, particularly zoomers, are sort of rejecting this archetype. We might even call it in the most positive sense the Amy Coney Barrett archetype where she’s just managed to raise a large and beautiful family while working full-time and now becoming a Supreme Court justice. But it seems like a lot of women are basically saying, “That’s exhausting. Even for the small percentage of women who can pull it off, it’s exhausting. It’s like living five lives all the time.”
What do you think about sort of the cultural pushback? Because it seems like it’s outside of sort of the conservative political space. I’ve seen videos and so on of… It seems to kind of even be entering the lingo. The way girl boss… People used to say girl boss unironically and now nobody would be caught dead saying that like, “Oh, I’m a girl boss.” What do you think about this? Have we passed a certain kind of Rubicon in the culture where women are fed up with the demands of “having it all”? If so, which direction do you think that’s going to tip?
Because I can see it tipping in a conservative direction and a return to a more traditional family structure, women asserting themselves and the things that they want and need that are different from men in life and their sort of life trajectory. But I could also see it tipping over into more victimhood. The reason that this is hard is because women make 77 cents, and we can debunk that all day long. I’ve been debunking it for a decade, as have many other people, including Jennifer, including Christina Hoff Sommers. This is a nonsense statistic. But I could see it tipping that actual feeling of being overwhelmed with the double burdens of doing what women still want to do in terms of family and community obligations and working full-time and accelerating their careers. I mean, which way do you think that’s ultimately… That kind of rage is going to tip?
Emma Waters:
Yeah, it’s a great question. Tying into the hearing, about the only area that they could say that they face legitimate discrimination has to do with how much women make wage-wise, which, as you said, has been debunked a million times over and, again, even if the ERA was passed, it wouldn’t actually address this problem. That’s clearly on the minds of a lot of women in the room. The ERA wouldn’t fix it so it seems to be a side issue. But when it comes to women and working and raising families, I think back… You sort of have this progression from the 1990s when the Mommy Wars were I think at some of the highest points and some of the greatest vitriol that you’ve seen between women was really coming in that era. Then you have the Atlantic and other articles in 2016 that are like, “Why women still can’t have it all.” They were really pointing out that exhaustion that you’re talking about.
And then COVID happened. While the pandemic was clearly very bad and had just terrible impact across society, there were some benefits that came from it. One of those was the expansion in technology that enabled people to take the workplace back into their home, making home the central part of women’s lives and even men’s lives for the first time in ages. So all of a sudden you actually had this restoration of the centrality of the home where women could both work and engage in these either creative or necessary outlets that they enjoyed or, if they needed to work, had to do while also still being able to primarily be at home and cook more meals and see their children when they come home from school or even homeschool their children on top of this. I think for a lot of women, it just struck this chord of like, “Whoa, there’s a way that I can still engage in the workplace, the marketplace of ideas, and be primarily present with my family.” This is…
And with technology, so many jobs appear to be full-time jobs and in reality, maybe you’re only working 15 to 20 hours a week, but you’re able to experience both aspects of that in a really healthy way. Then the second thing I would say is maybe women can have it all, but that doesn’t mean that they have to have it all at one time. Ivana Greco is probably one of my favorite writers on this at the moment and she’s really been making the case that for decades, especially going back to the 1920s, 1930s, women were pursuing careers but they were pursuing careers that allowed them to have easy reentry back to work, a flexible schedule with their children and that were kind of timeless, so think educators or nurses who could work but then had summers off with their family or they could maybe step away for a couple of years with young kids and then just get new certifications and re-enter back into the space.
I think we’re starting to see that flexibility on a much wider level of career options for women even than ever before, so I tend to be more optimistic about the direction we’re seeing this. Women are still not entering back into the workforce at as high of a percentage and many seem to actually be very happy, even with flexible time, three days in the office, two days at home, what have you, so I tend to think that this could go a very positive direction. But again, pandemic happiness statistics showed women who are married or have kids tend to be happier. Women who aren’t married and don’t have kids tend to not be as happy, so I think it’s probably going to self-select out based on where they find themselves in society.
Brad Wilcox’s very provocative New York Times article, Why Conservatives Are Happy and Liberals Are Sad, and it basically just said like, “Based on recent polling, women who happened to be conservative happened to say they were happier, more satisfied with life and the opposite was true of people who happened to identify on the left.” Maybe we’re just going to see a pretty dramatic difference between the two groups and less middle ground.
Inez Stepman:
Let’s get into some of the legal issues here. Jennifer, there are obviously major procedural problems. It’s kind of surreal to be here talking about the resurrection of the ERA. I was always taught that Phyllis Schlafly killed the ERA in the 1970s. That was in my history books.
Emma Waters:
[inaudible 00:30:30] said something to the effect of, “I remember when Phyllis Schlafly was making this argument.” I was like, “How old are we right now? That was a long time ago.”
Inez Stepman:
Well, I thought it was funny because he also… Senator Durbin also said that very derisively like, “Oh, I remember when Phyllis Schlafly was in here talking about bathroom privacy.” I was like, “Have you looked around yourself? Everything she said came true. What are you talking about?” But in any case, Jennifer, what are the procedural problems with resurrecting this more than 50 years later and ratifying it just with these three states in the last… Since 2017? Because, correct me if I’m wrong, especially the proponents who were yelling, they were saying, “ERA is already ratified. Congress doesn’t even need to take the step of dissolving the deadline. It doesn’t matter. It’s already ratified.”
Jennifer Braceras:
Right. Their view is it just has to be published and people just have to start suing to enforce it. But the Congress that passed the ERA and sent it to the states in 1972 did so with the seven-year deadline and, as one of the senators commented today, that seven-year deadline was very important in terms of getting the passage. In other words, there were senators who would only vote for it if it included a truncated timeline and so everybody knew that seven years was what they had, and certainly the state legislators who voted for it knew that that was the timeline they were operating under. It shouldn’t be a surprise to anybody when the seven years passed without ratification by 38 states that this amendment was dead.
Now, some people argue, “Well, prior to the deadline, Congress extended the deadline to 1982.” I personally… My legal opinion is that that extension isn’t valid because it only passed by a simple majority and constitutional amendments require two-thirds of both houses of Congress. So I don’t happen to think that extension is valid, but even hypothetically, for the sake of argument, if you say that the deadline passed in 1982, everybody at that point knew it had passed. Gloria Steinem said the ERA was dead. Everybody acknowledged it. Then what happened was the 27th Amendment was sort of resurrected from the dead. That was a amendment that was put forward with the original Bill of Rights by James Madison and it had to do with congressional pay and not allowing members of Congress to raise the pay during their term for themselves. It dealt with self-dealing.
That constitutional amendment had no deadline. It didn’t… Congress didn’t place a deadline on it so when they finally were able to achieve the requisite number of state approvals to ratify that amendment, they were able to claim successfully that it was now part of the Constitution. I would actually argue… There was a witness today, a professor on the Republican side, who was making these legal arguments. Her position was that had Congress not included the seven-year timeline for the ERA, that then it could go on in perpetuity like the 27th Amendment. I actually… I think I disagree with that because, as you’ve pointed out in other contexts, Inez, it certainly seems to go against the spirit of Article Five. The difference I think between the Equal Rights Amendment and the Congressional Pay Amendment is that the passage of time doesn’t change the arguments for or against congressional self-dealing. The arguments are still the same in 2023 as they were in the 1700s.
That is not true when it comes to sex discrimination because the facts on the ground have changed, the definition of words have changed, the interpretation of the Equal Protection Clause has changed. So I don’t think you can say that an amendment that’s open to interpretation like that can go on in perpetuity. Take, just for example, let’s say in this particular case there were 35 states that ratified the ERA before the deadline. Five of them… Well, four of them rescinded that approval and one of them the approval sunsetted so there are five. Of the 35, there are five who now say, “No, we didn’t want it.” What if all of them had rescinded? What if they had all rescinded and there were only three states that voted for it in modern times? Are you going to put an amendment into the Constitution that was rejected by 35 states after it was approved? I mean, that’s the most anti-democratic thing I’ve ever heard of.
Inez Stepman:
Yeah. It certainly seems like their conception leaves no way for Americans to actually reject any amendment at any time.
Jennifer Braceras:
Right [inaudible 00:36:03].
Inez Stepman:
[inaudible 00:36:03] there forever. If the meanings of the words… If black means white and up means down a hundred years from now and we change our legal conventions and a couple states ratify then and then in another a hundred years they reversed the meanings of the words again and another couple states ratify for exactly opposite reasons… you can think of some very absurd scenarios here, as you kindly credited to me, but I don’t think it’s hardly my argument, but it does seem to completely eviscerate the point of having such high barriers to amend the Constitution, two-thirds of both houses of Congress, three-fourths of state legislatures ratifying. Surely the point of all of that is to ensure that Americans… That anything we put into the highest law of our land is very, very broadly popular.
Jennifer Braceras:
Right. It should have overwhelming contemporaneous support.
Emma Waters:
There were two parts of this that were new to me that I thought were really interesting. Jennifer, you’ll have to speak to it because I don’t remember it fully, but one was Senator Mike Lee made the point that there were, I think, some votes or constitutional amendments may be regarding race that states had rescinded their vote on but that the body was fully fine accepting the rescissions of certain constitutional amendment votes but not others. Do you remember the case that he was talking about there?
Jennifer Braceras:
There’s an amendment, I think it’s the Corwin Amendment, that Professor Foley mentioned in her testimony, and that is a proposed constitutional amendment. It never became law, thank God. It is a proposed constitutional amendment from the 1800s that would’ve preserved slavery. It didn’t pass. It didn’t get the requisite three-quarters of the states to support it, but it doesn’t have a deadline on it and it’s still out there. What Senator Lee was saying is in modern times, Maryland and other states rescinded their approval of that amendment because it’s embarrassing that they ever supported it. They rescinded their support of that amendment. His point was you see… I think it was Senator Lee. Maybe it was… Was is Senator Lee?
Emma Waters:
I think so.
Jennifer Braceras:
Yeah. I think his point was, “Well, why is that okay but this isn’t okay? The only difference seems to be the topic, that you agree with rescission when it has to do with slavery but you don’t agree with rescission when it has to do with the Equal Rights Amendment.” He was just pointing out the hypocrisy of their argument about rescission.
Emma Waters:
Yeah, and the inconsistency there in the arguments, again, just cannot be, I think, highlighted more, that this is not about upholding proper congressional or constitutional process. This is a purely political motive on their part and they’re trying to use whatever levers of power possible to really shove this through, even against, I think, the… I mean, one, clearly against what’s best for women but, two, even against the best wishes of the American people.
Jennifer Braceras:
Well, I think Senator Graham said it best. He said, “The reason you’re doing this is because you know that if you reintroduced this into Congress today as a new Equal Rights Amendment, that you wouldn’t have two-thirds support of Congress let alone three-quarters of the states.”
Inez Stepman:
I wanted to bring up in the context of rescission that these five states first of all… I think the fact that there were rescissions in the 1970s does prove something about the ERA, which is that when particularly women, which it’s generally agreed on in sort of historical context that it was Phyllis Schlafly and women, female voters, who killed the ERA in the 70s, when the consequences of that amendment are actually debated in the public and not just sort of talked about as a matter of platitudes, that actually we see people turning against this amendment and for the very reasons that, Jennifer and Emma, you guys have laid out, the fact that there are so many consequences for women and girls if we force the law to be blind to sex differences.
I guess my question here is in the context of rescission, does there have to be some kind of… Or Jennifer, do you anticipate that the court will rule a broader way on this and actually set some guardrails around this? Because even forgetting for a moment about the particularities of the ERA, there does seem to be some tension in their various sort of… Some of them are indicta, some of it is actually in decisions, but they… And in one case, they leave this as a political question for Congress to decide, in which case Congress could decide that in perpetuity we can have amendments for 200 years, but in others, they use this phrase that you used earlier on, which is the reasonably contemporaneous ratification for the reasons that we’ve discussed, that it makes no sense to have an Article Five process where there is no contemporaneity to… Is that a word? To-
Jennifer Braceras:
It is now.
Inez Stepman:
Yeah. To this decision-making process that we’re all collectively engaged in as citizens. Do you…what do you predict about the future of court cases over this amendment? Because there are several flying in both directions at the moment.
Jennifer Braceras:
I think the problem is the courts tend to not want to have to decide things that they don’t have to. In the lower court case in the District of Columbia, the judge said basically the states… Three states sued to try to enforce the ERA. They wanted the judge to order the archivist to publish it. The judge said he wasn’t going to do that. He did say that essentially that it had expired, but he kind of left open the question of whether that expiration could be changed by Congress. Just today, actually, at 11:00 AM, the Court of Appeals for the D.C. Circuit affirmed that ruling. I haven’t had a chance to read the opinion. What I’d like to see is a very clear ruling from the court about not only that the original ERA has expired, but also outlining Congress’s power or lack thereof in terms of changing the deadline. I believe that Congress’s power is only to propose and send to the states and that’s where the power ends, but the courts haven’t really addressed that explicitly and I’d like to see them do that so that we’re not engaging in this political theater a decade from now.
Inez Stepman:
Emma, what was the most important takeaway that you took away from being in this hearing? What is your sense of where the debate over this amendment is actually going to go? Because it struck me that… I’ve been working on this issue for a long time now, and even two or three years ago I felt like I was screaming into a wilderness and most of the country didn’t know this amendment existed. The rest of them thought it died in the 1970s. There were just a few very strident activists who were pushing forward with a very radical theory not only of the amendment itself but of the ratification process. I felt like I was just waving my hands in a corner saying, “Hey, guys, this could actually matter.” Now I feel like we’ve had a couple of hearings on this, we had senators actually attending this hearing in order to politically grandstand, which we didn’t even have that before. Half of the earlier hearings were basically half attendance or…
We finally have this response from conservative media over this. This hearing is going to get coverage, there’s going to be articles in Washington Examiner, in National Review, in all of the pieces of the conservative media. It seems to me that the right is now paying attention to this at least a little bit. Where do you think the fight over this amendment is going to go going forward, assuming that it’s not going to get the 60 votes required to dissolve this? Is this something we’re just going to see relitigated at every Congress as Democrats introduce a resolution to dissolve this deadline? Are we just going to have this fight every year from here on out until one side or the other gets the 60 votes for closure? What’s going to happen?
Emma Waters:
I certainly hope that’s not the case, and part of the reason why IWF and Heritage and so many conservative groups came out in such large numbers today was to try to make the ERA as politically unpopular as possible. But when it comes to the main takeaway that I had observing this, there’s clearly the aspect of women’s sports and the dissolution of sex, but there was a really interesting progression throughout the hearing that I think is worth noting here. At the very beginning, after one of the legal scholars in favor of the ERA, she was the last one to testify. I don’t-
Jennifer Braceras:
Kathleen Sullivan.
Emma Waters:
Yes, Kathleen Sullivan.
Jennifer Braceras:
Yeah. Former dean at the Stanford Law School.
Emma Waters:
Yes. Okay. One of the Republican senators asked her, “Do you think that the ERA provides a path for abortion going back into the Constitution?” She basically refused to answer. She just kind of gave a non-answer, sort of pivoted, and really tried not to address it.
Jennifer Braceras:
What she actually said is I believe something to the effect of, “It will… The Equal Rights Amendment will enshrine equality and the courts will work out the details.”
Emma Waters:
Yeah, so a non-answer but an answer. Then about halfway through, the “I am a Black female representing who knows what” woman, Thursday Williams.
Jennifer Braceras:
Trinity College.
Emma Waters:
Yeah. It’s Thursday Williams, right?
Inez Stepman:
That’s a totally fair description of her because that is literally what she repeated 50 times during the hearing.
Emma Waters:
[inaudible 00:47:03] how she started every sentence. It’s not making any other claim aside from this is what she said. But then about halfway through, she said something very interesting where she was like, “When it comes to the rights that would be afforded to women if the ERA was passed…” Her framing as she answered the question was, “Well, after recent events this past summer, it seems the need for the ERA is greater than ever.” And recent events of this past summer is the overturning of Roe v. Wade and Casey v. Planned Parenthood and the Dobbs decision. Then you saw even a clearer example, which a lot of conservatives were like, “That seems like a very clear connection between the need for the ERA and the need for abortion in their mind.”
At the very end, we saw the best back and forth between Senator Durbin and Jennifer that I think just justified the entire hearing. Senator Durbin very offhandedly was like, “You know, do we actually care about women’s sports? That doesn’t seem like that big of a deal.” Jennifer was like, “Actually, I think it’s a really big deal to all the female athletes who would have their opportunities destroyed.” And they go back and forth a little bit and then he concludes this segment saying, “Well, the reason we need the ERA is so we can enshrine abortion or to protect abortion rights.” He just came out and said it.
Jennifer Braceras:
Let’s be clear, the pro-ERA side has for years denied that this is about abortion. You know what? If it is about abortion then propose a constitutional amendment to protect that and let’s see what the American people do with it, but don’t try to put it in the Constitution through the back door of the ERA without even letting people know, “Oh, by the way, that’s what your state voted for in 1972,” because they didn’t think that’s what they were voting for. Again, it’s anti-democratic. The Dobbs decision was a very pro-democracy decision. It did not take away the right to abortion, it did not enshrine the right to life in the Constitution. It simply said, “Abortion isn’t mentioned in our governing charter and the people need to decide how they’re going to regulate this.” That’s what the decision said, so I think to enshrine it in the Constitution now as a matter of law, certainly the American people can do that if that’s their political will, but nobody’s been given a chance to debate that.
Emma Waters:
Yeah. I-
Inez Stepman:
Jennifer-
Emma Waters:
Yeah.
Inez Stepman:
Jennifer, what about you? What are your predictions about not only… I asked you earlier about the court cases, but where the political debate over this amendment will go now that we do have a little bit of the public’s attention on it as opposed to in the past where it really was completely under the radar. Nobody knew that Virginia with “great fanfare” became the 38th state to ratify the ERA in early 2020 before the whole world collapsed. Where do you think the political debates are going to go? I mean, are the proponents at any point just going to listen to Ruth Bader Ginsburg’s advice, put this back in the hopper, start again? Do you expect this to be battled out in the state legislatures?
Jennifer Braceras:
I don’t because I think that they’re afraid that they will lose there. I don’t even think they’d get it to the state legislatures. I don’t think it would emerge from Congress and I think they know that. I also think that the pro-ERA forces believe, as they do with respect to many issues, actually, that if you say something often enough, it becomes true. Their strategy is very much proceed on all fronts, bring lawsuits in federal court, bring lawsuits in state court to start trying to have it enforced, try to get Congress to lift the deadline, have Columbia Law School print up versions of the Constitution that include a 28th Amendment, which is the ERA.
They’re just acting as though it’s law of the lands. They’re going to keep saying, as the witnesses and the protestors did today, “The ERA is in the Constitution.” They’ll say it often enough that unfortunately, young people who aren’t as well-educated as they should be will believe it. Part of the reason they’ll believe it is because they hear it enough, and the other part of the reason they’ll believe it is because they do live in a world where men and women have legal equality. So they’ll think to themselves, “Well…” My three daughters could think to themselves, “Well, I can do anything my brother can do in this country and these people keep telling me that there’s an equal rights amendment to the Constitution, that it’s the 28th Amendment, so that must be so.”
But they don’t realize that in fact, their constitutional equality stems from the fact that it’s a sex-neutral document, that men and women share all the same rights in the Constitution, and with the passage of the 19th Amendment and the interpretation of the Equal Protection Clause to cover sex, their rights are constitutionally enshrined. They don’t realize that their rights don’t come from a fake ERA. Well, hopefully, my daughters realize that, but people like my daughters may not. They’re just going to keep pushing this in the court of public opinion and messaging it until… I don’t know.
Emma Waters:
[inaudible 00:52:53].
Inez Stepman:
That’s maybe a good note to close on, the importance of continuing to make this argument and reminding people that in fact the ERA is not in the Constitution, it has no right to be in the Constitution, it has not passed the procedural hurdles required for it to be the 28th Amendment of the Constitution. Jennifer, thank you so much for your courageous testimony. I hope people will go and watch Jennifer’s testimony in this Senate judiciary hearing. Emma Waters, thank you so much for joining us to talk about this and talk about your perspectives in the room and do this kind of post-game wrap-up here with me on High Noon. Thanks, ladies, for joining us.
Jennifer Braceras:
Thanks, Inez.
Emma Waters:
Thanks, Inez.
Inez Stepman:
And thank you to our listeners. High Noon with Inez Stepman is a production of the Independent Women’s Forum. As always, you can send comments and questions to [email protected]. Please help us out by hitting the subscribe button and leaving us a comment or review on Apple Podcasts, Acast, Google Play, YouTube, or iwf.org. Be brave, and we’ll see you next time on High Noon.