From its passage
by Congress in 1972 to its ratification failure in 1982, the Equal Rights
Amendment (“ERA”) pivotally shaped sex equality discourse. While historians and
legal scholars have examined and analyzed its demise, its failure has been
deemed inconsequential for constitutional doctrine—conventional wisdom submits
that a “de facto ERA” was achieved through judicial action. This Article argues
that this dominant narrative has obscured the other half of the equation—the
role of Congress in implementing the “de facto ERA.” Through original archival
and legislative research, this Article offers a new account of congressional
action aimed at entrenching the substantive guarantees of the sex equality
principle. This Article introduces the Economic Equity Act to the sex equality
Originally conceived as enforcement legislation for the ERA, this Article shows how congressional lawmakers used the omnibus Economic Equity Act for over a decade to articulate and advance their substantive vision of equality for women. Lawmakers introduced successive versions of the Act from 1981 to 1996, passing over thirty enactments. This Article argues that through the provisions of the Economic Equity Act, the women’s movement, lawmakers, and their constituents staked claims to the emerging meaning of sex equality and the terms of women’s economic citizenship—a critical chapter that has been written out of the histories of sex equality.
This Article argues that this account rewrites our history of sex equality in three important ways. First, this Article contends that the Economic Equity Act constituted a decisive turning point in congressional activity—away from legislation effecting “equality in theory” through facial prohibitions on sex discrimination, to legislation aimed at achieving substantive equality or “equality in fact.” Second, this account redresses a fundamental gap in the sex equality literature by showing how lawmakers advanced the Economic Equity Act in an effort to revise New Deal-era federal law and policy premised on the norm of the male breadwinner and female homemaker. Finally, this Article reveals the Economic Equity Act as a foundational chapter for understanding the historical and contemporary role of Congress in effecting sex equality. At stake for lawmakers advancing the Economic Equity Act were the terms on which the benefits and privileges of economic citizenship under federal law would be conferred in the wake of the societal changes precipitated by the modern women’s movement.
The article is appearing shortly in the Harvard Journal of Gender and Law.
Here's something that I find particularly exciting; the journal is holding a panel discussion around the article this Thursday in Cambridge, featuring Congresswoman Elizabeth Holtzman and Congresswoman Patricia Schroeder, as well as Alice Kessler-Harris of Columbia's history department, Stephen Ansolabehere of Harvard's government department, Serena Mayeri of the University of Pennsylvania Law School, Patricia Seith of Stanford Law School, and Suzanne Kahn of Columbia's history department. This sounds like it'll be a fabulous discussion. I'm very sorry that I can't make it to Camrbridge for the discussion, but I think it's great that the journal is bridging history, the academy, and contemporary politics in this way and I hope that more journals reach out beyond the printed page to hold these kinds of discussions. The discussion is this Thursday 3:30 to 6:30 in Wasserstein, Room 2012. More details are here.