A growing excitement surrounds Virginia’s vote this week to ratify the Equal Rights Amendment, guaranteeing equal legal rights for all United States citizens regardless of sex. Virginia is the 38th state to ratify the E.R.A., pushing the country over the three-quarters threshold required for a constitutional amendment — assuming that the decisions of five states to rescind their ratification over the years don’t count.
Why is the E.R.A. gaining newfound momentum decades after the ratification deadline passed and initial momentum fizzled? Perhaps in the face of #MeToo and a misogynous president, we want an insurance policy, a stopgap for rights that seem to be constantly eroding. Understandable, no doubt. But as someone who has worked for equal rights for women for nearly 40 years and has tried to provide a clear description of the ways bias impacts women’s lives, I wonder whether the E.R.A. is the best fight to pick right now. Because make no mistake — it would be a battle. President Trump’s Department of Justice has already issued a 38-page opinion declaring the E.R.A. dead, dead, dead.
And this time around, it’s not clear that the concrete gains would be worth the political backlash.
For one thing, Congress imposed a deadline for states’ ratification of the E.R.A. — 1982. Was that binding? Who would decide? Most likely, the Supreme Court. But Mr. Trump has tilted the court sharply to the right, and there’s no guarantee it would second-guess Congress’s decision.
But the deeper problem is that it would be the same Supreme Court that would interpret the Equal Rights Amendment. Do we really believe that this Supreme Court will take a bold view of the E.R.A.’s vague promises? Not likely, particularly since — both in the 1970s and today — considering what many social conservatives think about when they think of the E.R.A.
They think of bathrooms. Would the E.R.A. make gender-specific bathrooms unconstitutional? I doubt it, but that doesn’t mean that a long, drawn-out fight wouldn’t give conservatives a chance to use this as a galvanizing issue. According to an influential study of the successful campaign to persuade the North Carolina legislature not to ratify the E.R.A. by Jane De Hart and Donald Mathews, the bathrooms issue played a central role. Anti-ratificationists played on people’s anxiety by equating gender-neutral bathrooms with the “forced mixing” of desegregation.
In the 1970s, Phyllis Schlafly used her campaign against the E.R.A. to fuel the culture wars that have driven American politics ever since. Ms. De Hart and two scholars who have studied fights for abortion rights, Kristin Luker and Faye Ginsburg, found that the fights over both issues pitted less-educated women against those more educated. Ms. De Hart also found that in North Carolina, advocates of the E.R.A. typically were highly educated women who considered it the key to opening up high-stakes, high-status, traditionally male professions. High-school-educated women were less work identified, more family identified, more likely to hold traditionalist views of men’s and women’s roles, and less likely to support the E.R.A. Even today, feminism is associated with class: Only 22 percent of adults with a high school diploma or less education identify as “feminist,” compared with 48 percent of those with postgraduate degrees.
The working-class mantra “Family comes first” reflects what I have called the “class culture gap.” Professional women see good jobs as their path to social power and dignity. Middle-skilled women do not, because the jobs available to them remain sharply divided into pink-collar jobs held by women and blue-collar jobs held by men. Pink-collar jobs typically have low wages and status. That helps to explain why nonelite women tend to romanticize motherhood and traditional gender roles more than elite women do.
Class scholars have documented that non-elites hold more traditional views than elites, including on “family values.” That’s why the culture wars express class conflict: Elites embrace political issues associated with their felt entitlement to self-development (such as the right to express oneself sexually, through L.G.B.T.Q. and abortion rights). Non-elites typically put a higher value on self-discipline and respect for traditional institutions that advance self-discipline — religion, the military and family values — shaping the politics of what used to be called “values voters.”
Does all this still hold in the age of President Trump? Sure does. Roughly 80 percent of evangelicals voted for Mr. Trump because they hoped he would deliver the Supreme Court, and he did. Aren’t they outraged by his behavior? Not really, because they view politics as an arena where compromise is made with people unlike themselves in exchange for wins on issues that are central to their identity. They rely on church, not politics, as the arena for forming a virtuous sense of self.
My crowd, lacking church, has displaced virtue signaling onto politics. Which brings us back to the E.R.A. My fear is that a drawn-out, complicated legal fight over the E.R.A. will enhance conservatives’ ability to mobilize in 2020 the very groups that delivered the White House to Mr. Trump in 2016: evangelicals and working-class whites in the Rust Belt states.
Given today’s Supreme Court, the E.R.A. is likely to accomplish little. That’s what drives my conclusion that feminists should focus their fervor and funds on campaigns that promise concrete results in women’s lives: for example, enacting legislation such as a Pregnant Workers’ Fairness Act that would give pregnant women the right to the accommodations needed to keep their jobs while pregnant and breastfeeding, or amendments to the Fair Labor Standards Act to expand the coverage of the Affordable Care Act’s guarantee of reasonable break time and a clean place to pump milk at work.
The current preoccupation with the E.R.A. is just one expression of elites’ obsession with using politics to enact their virtue. My advice? Use religion for that. Use politics to shape the law to make concrete improvements in women’s lives. That’s the path to gender equality.
Joan C. Williams is a professor of law and director of the Center for WorkLife Law at the University of California Hastings College of the Law.
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