    [House Hearing, 116 Congress]
    [From the U.S. Government Publishing Office]

                             EQUAL RIGHTS AMENDMENT

    =======================================================================

                                    HEARING

                                   before the

                              SUBCOMMITTEE ON THE
                CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED SIXTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 APRIL 30, 2019

                                   __________

                               Serial No. 116-16

                                   __________

             Printed for the use of the Committee on the Judiciary

     [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

            Available http://judiciary.house.gov or www.govinfo.gov

                              ______

                 U.S. GOVERNMENT PUBLISHING OFFICE
    41-176               WASHINGTON : 2020

                           COMMITTEE ON THE JUDICIARY

                       JERROLD NADLER, New York, Chairman
    ZOE LOFGREN, California              DOUG COLLINS, Georgia,
    SHEILA JACKSON LEE, Texas              Ranking Member
    STEVE COHEN, Tennessee               F. JAMES SENSENBRENNER, Jr.,
    HENRY C. ``HANK'' JOHNSON, Jr.,          Wisconsin
        Georgia                          STEVE CHABOT, Ohio
    THEODORE E. DEUTCH, Florida          LOUIE GOHMERT, Texas
    KAREN BASS, California               JIM JORDAN, Ohio
    CEDRIC L. RICHMOND, Louisiana        KEN BUCK, Colorado
    HAKEEM S. JEFFRIES, New York         JOHN RATCLIFFE, Texas
    DAVID N. CICILLINE, Rhode Island     MARTHA ROBY, Alabama
    ERIC SWALWELL, California            MATT GAETZ, Florida
    TED LIEU, California                 MIKE JOHNSON, Louisiana
    JAMIE RASKIN, Maryland               ANDY BIGGS, Arizona
    PRAMILA JAYAPAL, Washington          TOM McCLINTOCK, California
    VAL BUTLER DEMINGS, Florida          DEBBIE LESKO, Arizona
    J. LUIS CORREA, California           GUY RESCHENTHALER, Pennsylvania
    MARY GAY SCANLON, Pennsylvania,      BEN CLINE, Virginia
      Vice-Chair                         KELLY ARMSTRONG, North Dakota
    SYLVIA R. GARCIA, Texas              W. GREGORY STEUBE, Florida
    JOE NEGUSE, Colorado
    LUCY McBATH, Georgia
    GREG STANTON, Arizona
    MADELEINE DEAN, Pennsylvania
    DEBBIE MUCARSEL-POWELL, Florida
    VERONICA ESCOBAR, Texas

            Perry Apelbaum, Majority Staff Director & Chief Counsel
                    Brendan Belair, Minority Staff Director
                                     ------

      SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

                         STEVE COHEN, Tennessee, Chair
    JAMIE RASKIN, Maryland               MIKE JOHNSON, Louisiana,
    ERIC SWALWELL, California              Ranking Member
    MARY GAY SCANLON, Pennsylvania       LOUIE GOHMERT, Texas
    MADELEINE DEAN, Pennsylvania         JIM JORDAN, Ohio
    SYLVIA R. GARCIA, Texas              GUY RESCHENTHALER, Pennsylvania
    VERONICA ESCOBAR, Texas              BEN CLINE, Virginia
    SHEILA JACKSON LEE, Texas            KELLY ARMSTRONG, North Dakota

                           James Park, Chief Counsel
                         Paul Taylor, Minority Counsel

                                C O N T E N T S

                                  ----------

                                 APRIL 30, 2019
                               OPENING STATEMENTS

                                                                       Page
    The Honorable Steve Cohen, Chairman, Subcommittee on the
      Constitution, Civil Rights, and Civil Liberties................     1
    The Honorable Mike Johnson, Ranking Member, Subcommittee on the
      Constitution, Civil Rights, and Civil Liberties................     3
    The Honorable Jerrold Nadler, Chairman, Committee on the
      Judiciary......................................................     5

                                   WITNESSES

    Kathleen M. Sullivan, Partner, Quinn Emanuel Urquhart & Sullivan
        Oral Testimony...............................................    15
        Prepared Testimony...........................................    18
    Elizabeth Price Foley, Professor of Law, Florida International
      University College of Law
        Oral Testimony...............................................    26
        Prepared Testimony...........................................    29
    Senator Pat Spearman, Co-Majority Whip, Nevada Senate
        Oral Testimony...............................................    39
        Prepared Testimony...........................................    42
    Patricia Arquette, Actor and Advocate
        Oral Testimony...............................................    52
        Prepared Testimony...........................................    54

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Items for the record submitted by The Honorable Steve Cohen,
      Chairman, Subcommittee on the Constitution, Civil Rights, and
      Civil Liberties................................................    82
    Item for the record submitted by The Honorable Sheila Jackson
      Lee, Subcommittee on the Constitution, Civil Rights, and Civil
      Liberties......................................................    95

                                    APPENDIX

    Items for the record submitted by The Honorable Steve Cohen,
      Chairman, Subcommittee on the Constitution, Civil Rights, and
      Civil Liberties................................................   111
    Items for the record submitted by the Honorable Mike Johnson,
      Ranking Member, Subcommittee on the Constitution, Civil Rights,
      and Civil Liberties............................................   151
    Statement for the record submitted by The Honorable Sheila
      Jackson Lee, Chairman, Subcommittee on the Constitution, Civil
      Rights, and Civil Liberties....................................   194

                             EQUAL RIGHTS AMENDMENT

                                  ----------

                            TUESDAY, APRIL 30, 2019

                            House of Representatives

                           Committee on the Judiciary

        Subcommittee on Constitution, Civil Rights, and Civil Liberties

                                Washington, DC.

        The subcommittee met, pursuant to call, at 10:00 a.m., in
    Room 2141, Rayburn Office Building, Hon. Steve Cohen [chairman
    of the subcommittee] presiding.
        Present: Cohen, Nadler, Raskin, Scanlon, Dean, Garcia,
    Escobar, Jackson Lee, Johnson of Louisiana, Gohmert, Jordan,
    and Cline.
        Staff present: David Greengrass, Senior Counsel; John Doty,
    Senior Advisor; Lisette Morton, Director Policy, Planning and
    Member Services; Madeline Strasser, Chief Clerk; Moh Sharma,
    Member Services and Outreach Advisor; Susan Jensen,
    Parliamentarian and Senior Counsel; James Park, Chief Counsel;
    Sophie Brill, Counsel; and Will Emmons, Professional Staff
    Member.
        Mr. Cohen. Thank you. The Committee on--the Subcommittee on
    the Constitution, Civil Liberties, and Civil Rights is now in
    session. We will come to order.
        Without objection, the chair is authorized to declare a
    recess of this subcommittee at any time. I welcome everyone to
    today's hearing on the Equal Rights Amendment.
        I will first recognize myself for an opening statement. I
    am pleased today to convene today's hearing on the Equal Rights
    Amendment for the purpose of carrying out one of the
    subcommittee's most important functions--the consideration of
    an amendment to the United States Constitution.
        The purpose of the ERA is simple but critical. It
    guarantees that women are treated equally under the law. The
    ERA was in fact approved by both the House and Senate nearly
    half a century ago.
        In 1971 and 1972, it passed with overwhelming margins. The
    Constitution instructs that after a proposed amendment receives
    the required two-thirds of the vote in each of the houses it
    has to be ratified by three-quarters of the states.
        After the ERA was sent to the states in '72 it was ratified
    by 35 of the necessary 38 state legislatures. But for decades
    that extraordinary progress toward equality stalled. A well-
    organized counter movement scared the American people into
    thinking that a guarantee of equality would somehow harm women
    who stay at home to raise their children and would erode
    American families.
        What has started as a matter of broad consensus because
    another divisive issue in the culture wars. Today, we know
    better. We know that in the year 2019 it is unacceptable that
    women are still not paid equal wages for equal work.
        We know that when women are treated with equal dignity and
    respect in the workplace and the home, our institutions of
    government our society at large, all of the American people
    stand to benefit and we know that a simple but fundamental
    guarantee of equality should be welcomed rather than feared.
        At the same time, it is more important than ever to affirm
    that women have an equal place under the law and under our
    nation's Constitution. Although women have achieved some
    measure of equal status under the 14th Amendment, that progress
    is fragile.
        As the Supreme Court has moved to the right, it could
    backtrack from fundamental decisions as it has in other areas
    and jeopardized the many strides that women have made.
        Meanwhile, there are dark currents in our politics and
    culture seeking to undermine women's status in our society,
    whether it is by threatening their health care, objectifying
    women in the workplace, or ignoring or even condoning gender-
    based violence.
        In the face of those challenges, I am heartened by the two
    panels and the extraordinary attendance we have here today.
    Your presence demonstrates that the march toward equality is
    alive and well.
        I am also very, very pleased to recognize two outstanding
    members of the Congress, two of my colleagues--Congresswoman
    Carolyn Maloney of the state of New York and Congresswoman
    Jackie Speier, who will be speaking today. Jackie is a
    Californian.
        And they have introduced two different propositions to get
    the Equal Rights Amendment rolling again. Congresswoman Maloney
    has worked tirelessly as an advocate for the new ERA and
    Congresswoman Speier introduced a resolution, H.J. Res. 38, to
    guarantee that the '72 ERA is not subject to an arbitrary
    ratification deadline.
        Their extraordinary efforts have ensured that the important
    unfinished business of passing the Equal Rights Amendment is
    not forgotten and I am proud to be a co-sponsor of both
    measures.
        I am also pleased that our chairman is championing this
    issue and has worked strongly to move it forward over the years
    and to have this hearing, and I thank Chairman Nadler for his
    efforts therein.
        We are joined by two stars of show business. Well, maybe
    more, but at least two that I know of--Ms. Patricia Arquette
    and Alyssa Milano.
        We welcome their attendance here. Ms. Arquette will be on
    the panel. Ms. Milano, if you would rise and be recognized, I
    would appreciate it. Thank you.
        [Applause.]
        Mr. Cohen. I think it is so appropriate that we have these
    two giants of the industry with us because one of the best
    plays on Broadway today is a play that Heidi Schreck wrote
    called ``The Constitution and Me.''
        It is a powerful play about the Constitution, penumbra
    rights, Justice Douglass, but emphasizing women, choice, and
    the ERA. So thank you, Ms. Schreck, and thank you for all of
    industry that is working to see that we move forward on this
    issue.
        A few years ago a great woman, a great person--Justice Ruth
    Bader Ginsburg--was asked in an interview what amendment she
    would most like to see added to the United States Constitution.
        She answered it would be the Equal Rights Amendment. As she
    explained, the ERA means, quote, ``that women are people equal
    in stature before the law,'' unquote, and that, quote, ``that
    principle is in every Constitution written since the Second
    World War.''
        Justice Ginsburg said she would like her granddaughters,
    when they pick up the Constitution, to see that is a basic
    principle of our society.
        I understand there is a possibility that Justice Ginsburg
    is watching today's hearing, and just to channel our president,
    Justice Ginsburg, if you are listening, get us the ERA.
    [Laughter.]
        Mr. Cohen. I look forward to that day and to the discussion
    among today's witnesses.
        Now I recognize the ranking member, my friend and
    colleague, Mr. Johnson.
        Mr. Johnson of Louisiana. Thank you, Mr. Chairman, and
    thank you all for being here. This is an important part of our
    democracy and our system, and your voices are important.
        The Equal Rights Amendment--the so-called ERA--was first
    introduced in Congress back in 1923. I know you all know the
    history of that.
        It was passed on to the states by Congress in 1972,
    ironically, the year I was born, Mr. Chairman. This has been
    around a while. But it wasn't ratified by the required three-
    fourths of the states before its expiration.
        In 1983, the ERA was reintroduced, as it had to be
    following its failure to be ratified before the
    congressionally-set deadline, a deadline that was explicitly
    relied upon by those states.
        It was the subject of five hearings in the House
    Subcommittee on Civil and Constitutional Rights, including one
    hearing called by the minority. It was last debated and marked
    up in the House Judiciary Committee on November 9th, 1983. It
    has been quite a while.
        It was later brought up on the House floor under a
    suspension of the rules in which no amendments are allowed and
    in which 20 minutes of debate time each was allocated to
    proponents and opponents.
        The ERA subsequently failed to pass the House of
    Representatives by the required two-thirds vote. Today, this
    subcommittee holds yet another hearing on the ERA which, as we
    will hear, will have to be passed by Congress and the states
    under the Constitution's super majority requirements before it
    becomes a part of the Constitution.
        It should not become a part of the Constitution, many of us
    believe, for a number of reasons including this one. The
    bipartisan Hyde Amendment prohibits the use of federal funds
    for abortions except in cases of rape, incest, or when the life
    of the mother is endangered.
        The Supreme Court upheld the Hyde Amendment's abortion
    funding restriction as Constitutional in Harris v. McRae. But
    the people's right to protect the unborn would be eliminated if
    the ERA were to pass.
        Back in the early 1980s, Representative Sensenbrenner
    requested that Congress's independent research arm, the
    Congressional Research Service, provide the committee with its
    own evaluation of the question.
        As he said at the 1983 markup of the ERA, quote, ``The
    executive summary of the CRS report says that under strict
    scrutiny the pregnancy classification in the Hyde Amendment
    would probably be regarded to be a sex classification under the
    ERA, meaning that if the ERA were to become part of our law,
    restrictions on abortion would automatically be struck down.''
        Today, however, with the benefit of even more recent
    history we can see that the concerns of Representative
    Sensenbrenner in 1983 were justified.
        Five years later in 1988, the Colorado Supreme Court held
    that Colorado's ERA in its state constitution prohibits
    discrimination on the basis of pregnancy. Ten years later in
    1998, the Supreme Court of New Mexico took the next step and
    relied on New Mexico's state level ERA to strike down a state
    reg that restricted state funding of abortions for Medicaid-
    eligible women.
        In New Mexico, Right to Choose/NARAL v. Johnson, the court
    held as follows: quote, ``Neither the Hyde Amendment nor the
    federal authorities upholding the constitutionality of that
    amendment bar this court from affording greater protection of
    the rights of Medicaid-eligible women under our state
    constitution in this instance. Article II Section 18 of the New
    Mexico Constitution guarantees that equality of rights under
    law shall not be denied on account of the sex of any person.''
    ``We construe,'' the court said, ``the intent of this amendment
    is providing something beyond that already afforded by the
    general language of the equal protection clause.'' More
    recently, NARAL Pro-Choice America in a March 13th, 2019
    national alert admitted their belief that the Equal Rights
    Amendment would, quote, ``reinforce the constitutional right to
    abortion. It would require judges to strike down anti-abortion
    laws,'' unquote.
        Look, of course, we all believe--I am the father of two
    daughters, one of them is sitting in the room this morning--
    that women should be protected from discrimination based solely
    on their sex, and that is the law today.
        But the Supreme Court has significantly ratcheted up the
    standard the government must meet in order to discriminate
    based on sex since the 1980s.
        For example, in U.S. v. Virginia, the court stated that,
    quote, ``Parties who seek to defend gender-based government
    action must demonstrate an exceedingly persuasive justification
    for that action.''
        The court also stated the burden of justification is
    demanding and it rests entirely on the state. As Justice
    Rehnquist noted in his concurrence in that case, the court had,
    in effect, made the government's burden much more difficult
    than it had been previously.
        Justice Scalia, in his dissent, pointed out that the
    standard governing review of the government's actions of the
    discriminate based on sex that had previously been in place
    was, quote, ``a standard that lies between the extremes of
    rational basis review and strict scrutiny. We have denominated
    this standard intermediate scrutiny and under it have inquired
    whether the statutory classification is substantially related
    to an important governmental objective.''
        Yet, in U.S. v. Virginia, Justice Scalia pointed out that
    the majority in that case had, quote, ``Executed a de facto
    abandonment of the intermediate scrutiny that has been our
    standard for sex-based classifications for decades,'' unquote,
    and replaced it with even a higher standard, he said, which is
    the law today.
        The majority opinion in U.S. v. Virginia, it should be
    noted, was written by Justice Ruth Bader Ginsburg, and hello,
    Justice Ginsburg, if you are watching us.
        In the 1970s, she was intimately involved in the
    preparation of a report published by the United States
    Commission on Civil Rights in 1977. It specifically supported
    the federal ERA, as you know, along with its ramifications.
        If it is adopted, it would include the elimination of the
    terms fraternity and sorority chapters, for example, and the
    required sex integration of single-sex organizations, among
    many other things that I think most Americans today would
    probably object to.
        With that, we look forward to hearing from our all our
    witnesses here today. We certainly respect your voices and we
    are glad you are part of the process.
        I yield back.
        Mr. Cohen. Thank you, Mr. Johnson, and what is your
    daughter's name?
        Mr. Johnson of Louisiana. Abigail.
        Mr. Cohen. Abigail, welcome. I was a friend in college of
    somebody in your--William Dawson Larry. He was somehow your
    cousin or your uncle or somebody, a long time ago. Smart good
    guy, and so was your father.
        I now recognize the full committee chairman, the great
    congressman from the great state of New York, the Empire State,
    Mr. Nadler.
        Mr. Nadler. Thank you for that florid introduction, Mr.
    Chairman. [Laughter.]
        Mr. Nadler. And thank you for convening this critical
    hearing.
        The first version of the Equal Rights Amendment was
    proposed nearly 100 years ago by Alice Paul, who helped lead
    the campaign to secure women's right to vote, which culminated
    in passage of the 19th Amendment.
        She and the other courageous women who led that movement
    soon recognized that ratification of women's suffrage was only
    the start. They knew that if women were to achieve true
    equality our nation's founding document needed to be amended to
    reflect that core principle.
        Alice Paul's Equal Rights Amendment was introduced in both
    houses of Congress in 1923. But 96 years later, the United
    States Constitution still does not explicitly declare that
    women have equal rights under the law.
        We have, of course, made important strides in large part
    thanks to the brilliant legal strategy pioneered by now Justice
    Ruth Bader Ginsburg. The courts have recognized that the 14
    Amendment prohibits many forms of outright discrimination.
        But in troubling ways women rights have begun to slide
    backwards in recent years. This administration continues to
    threaten women's health and safety on an almost daily basis.
    Whether it is by trying to roll back laws that prohibit health
    insurers from charging more to women just for being female or
    by allowing women's health care choices to be dictated by their
    employers' religious beliefs.
        Women still earn only 80 cents for every dollar that men
    earn with women of color earning even less, and there are
    uneven protections against other forms of discrimination and
    against harassment in the workplace.
        With these disturbing facts in mind, and I would add to my
    written text--I will go off script for a moment--we have a
    Supreme Court that has been so sympathetic that when Congress
    passed the Pregnancy Discrimination Act in 1978--can't
    discriminate against women who are pregnant if you are an
    employer--the Supreme Court has interpreted that to mean that
    if you behave decently toward other employees you have to
    behave decently toward pregnant women. But if you are terrible
    to other employees you can be terrible to pregnant women and
    they don't need any consideration.
        With these disturbing facts in mind, it is clear that an
    Equal Rights Amendment is more important than ever. Members of
    Congress regularly debated the ERA from the 1920s through the
    1970s. But the issue has largely remained dormant in recent
    years, making this hearing long overdue.
        In 1971 and 1972, the House and Senate passed the ERA by
    overwhelming margins. It contained these simple words: quote,
    ``Equality of rights under the law shall not be denied or
    abridged by the United States or by any state on account of
    sex,'' closed quote.
        One would think that shouldn't be terribly controversial.
    In the years that quickly followed, dozens of states ratified
    the ERA through their legislatures. By the end of the 1970s,
    the ERA was just a few states short of full ratification.
        But then progress on the amendment stalled. Thankfully, due
    in large part to the hard work of several of the witnesses here
    today, the momentum has picked back up.
        First, Senator Spearman led the effort to ratify the ERA in
    Nevada state legislature. Illinois followed suit last year.
    Meanwhile, women have been elected to office in unprecedented
    number including here in this Congress.
        Now, for the first time ever, more than a hundred women are
    serving in the United States House of Representatives--106, in
    fact.
        Some of the women who are part of this inspiring wave are
    on this subcommittee and they are helping to lend their voices
    to the critical effort to ratify the ERA.
        In addition, H.J. Res. 38, introduced in this Congress by
    Congresswoman Jackie Speier with 185 co-sponsors, will ensure
    that the ERA can become law if and when a sufficient number of
    states ratify it.
        Although there is some debate about the mechanism for
    determining when a sufficient number of states have ratified
    the ERA, I hope there is no need to debate--I am sorry, I hope
    there is no debate about the need for enshrining in the
    Constitution a clear and firm statement guaranteeing women
    equal rights under the law.
        We are on the verge of a breakthrough for equality in this
    country, despite all the obstacles in our current political and
    social climate. Adopting the ERA would bring our country closer
    to truly fulfilling our values of inclusion and equal
    opportunity for all people.
        I thank the witnesses for their participation including my
    colleagues, the gentlewoman from California, Ms. Speier, and
    the gentlewoman from New York, Ms. Maloney, who have both been
    champions for the ERA and have done much to bring us where we
    sit this morning.
        I look forward to their testimony and to the testimony of
    all our distinguished witnesses. I thank you, and I yield back
    the balance of my time.
        Mr. Cohen. Thank you, Mr. Chairman.
        We welcome our witnesses and thank them for participating
    in today's hearing. Please note that your written statements
    will be entered into the record in their entirety but your oral
    statements will be limited to five minutes.
        So to stay within that limit there are lights on the table.
    When the light switches from green to yellow, you will have one
    minute remaining to give your testimony and when it turns red,
    over.
        Before proceeding with the testimony I want to remind each
    witness that all of your written and oral statements made to
    the subcommittee in connection with this hearing are subject to
    penalties of perjury pursuant to 18 USC 1001, which may result
    in the imposition of a fine or imprisonment for up to five
    years, or both.
        On our first panel today our first witness is Congressman
    Carolyn Maloney. Congressman Maloney represents the 12th
    Congressional District of New York. She has been a member of
    Congress since 1993.
        Among her many accomplishments she is the lead sponsor of
    H.J. Res. 35, which proposes a new Equal Rights Amendment.
        Congressman Maloney, you are recognized and, if you don't
    mind, just for three minutes. But I am not going to cut you off
    if you take eight.
        Thank you, Congressman Maloney.
        Mrs. Maloney. Thank you so much, both chairmen. I can't
    tell you what this means to me personally. But today--although
    there are two bills in front of Congress, today we are focusing
    on Jackie Speier's bill. Mine is a fallback bill should her--so
    that--I feel it is appropriate that Jackie should go first
    since it is her bill we are reviewing today.
        Mr. Cohen. And I will not argue with Congressman Maloney.
        Mrs. Maloney. Okay.
        Mr. Cohen. I will recognize our first witness, as I earlier
    said, Representative Jackie Speier. [Laughter.]
        Mrs. Maloney. Okay.
        Ms. Speier. Mr. Chairman, thank you.
        Mr. Cohen. Representative Speier represents the 14th
    Congressional District of California, a member of Congress
    since 2013, and she has been the lead sponsor of H.J. Res. 38,
    which would remove the ratification deadline.
        Congressman Speier, you have the three- and eight-minute
    rule as well.

       STATEMENTS OF THE HON. JACKIE SPEIER, A REPRESENTATIVE IN
      CONGRESS FROM THE STATE OF CALIFORNIA; THE HON. CAROLYN B.
      MALONEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW
                                  YORK

                       STATEMENT OF JACKIE SPEIER

        Ms. Speier. Thank you, Mr. Chairman, and thanks to you and
    Chairman Nadler for this extraordinary historic opportunity for
    all of us to speak on the ERA.
        Thirty-six years--36 years--since Congress had a hearing on
    this issue that affects every single woman and man in this
    country.
        I want to thank the ERA coalition co-founders and co-
    presidents, Carol Jenkins and Jessica Neuwirth, Feminist
    Majority President Ellie Smeal, National Organization for Women
    President Toni Van Pelt, actors and activists, Patricia
    Arquette and Alyssa Milano.
        This has been a lifetime campaign for many of us. A
    lifetime campaign. It doesn't start in 1923 with Alice Paul.
    Actually, we have been an afterthought in this country since
    the beginning of this country.
        Back in 1776 when then-Congressman John Adams was going to
    work on the Constitution, it was his wife, Abigail Adams, who
    said, ``Remember the women.''
        We want you to finally remember the women. Without
    constitutional protection, pay disparities will continue to be
    allowed in this country because of the high obstacle of showing
    that there is intent to discriminate in order for a woman to
    prevail in court.
        This is real. Fifty percent of the major breadwinners in
    families today are women with children. It is time for us to
    take this issue seriously.
        And to Mr. Johnson, let me say this is not a stalking horse
    for abortion. This is pure and simple 54 words that we want to
    add to the Constitution of the United States because every
    other industrialized country in the world already has it in
    their constitution except for the United States of America.
        I am the co-sponsor of H.J. Res. 38, which is a bipartisan
    joint resolution cosponsored by 185 members of the House of
    Representatives including Senator Ben Cardin on the Senate
    side.
        This resolution removes the arbitrary deadline from the
    preamble of the original constitutional amendment. It
    recognized that Congress is fully within its rights to adopt a
    new deadline as it has in the past or to remove it altogether.
        I also want to recognize that Congresswoman Carolyn
    Maloney's resolution to ratify the ERA is something I endorse
    and we work hand in hand. Because of the absence of the ERA, it
    is a stain on our Constitution and our country.
        Nations around the world have looked to the United States
    to model their constitutions and have recognized the equalty of
    women and men under the law. Yet, we fail to do the same.
        It is, frankly, an embarrassment. An amendment that was
    supported by Republicans and Democrats under Presidents Nixon,
    Carter, and Ford have been used to divide our country and it
    has allowed critics to claim there is no need for the ERA.
        To them, I offer the words of the late Supreme Court
    Justice Antonin Scalia, who said, quote, ``Certainly the
    Constitution does not require discrimination based on sex. The
    only issue is whether it prohibits it. It does not.''
        Now, that should send chills down the spine of each and
    every one of us, that discrimination is not prevented against
    women in the Constitution of the United States.
        I will just say, Mr. Chairman, I have already exceeded my
    time. I will just end by saying that we need the ERA so that we
    can join the rest of the industrialized countries in the world
    and not be bringing up the rear as we are presently doing.
        We need the ERA so that we can achieve our full economic
    and social potential. We will no longer allow ourselves to be
    an afterthought. We need the ERA now.
        [The statement of Ms. Speier follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cohen. Thank you so much, Congresswoman, and I can't
    not mention remarks--a follow-up to your remarks. It took over
    130 years to give women the right to vote in the Constitution
    and that Tennessee was the perfect 36 to take--to do that.
    [Laughter.]
        Mr. Cohen. I now recognize the gracious Congresswoman,
    Congresswoman Maloney.

                      STATEMENT OF CAROLYN MALONEY

        Mrs. Maloney. Thank you for sharing that historical and
    very important point, and thank you, Chairman Nadler and
    Ranking Member Collins and Chairman Cohen and Ranking Member
    Johnson.
        And most of all, I want to thank all of the advocates and
    champions who have been working on this issue for years and
    trying to pass and ratify the Equal Rights Amendment.
        First, I would like to respond to Mr. Johnson. With all due
    respect, the Equal Rights Amendment has absolutely nothing to
    do with abortion. It has to do with equality of rights, most of
    which is economic and respect.
        It has nothing to do with abortion. Saying so is divisive
    and a tool to try to defeat it. So please don't ever say that
    again.
        And I really want to say----
        [Applause.]
        Mr. Cohen. There is a rule about clapping. You can't do it.
        Mrs. Maloney. First of all, I want to thank my really good
    friend and colleague, Jackie Speier, for her leadership. By
    having both my bill to restart the process and her bill to
    extend the deadline on the original process, we are covering
    all of our bases.
        Some have called the ERA just a symbol, and keep in mind
    that symbols are important, like the Statue of Liberty, the
    American flag. Yes, it is a symbol. But women need much, much
    more than a symbol. We need respect, we need fairness, and we
    need to be in the Constitution.
        Not having an ERA has real consequences for real women. We
    cannot enforce equal pay for equal work unless the ERA is in
    the Constitution banning discrimination. It is that simple.
        And there are numerous, numerous court decisions that show
    the need for the ERA, and here is one. In 1994, Congress passed
    the landmark Violence Against Women Act, recognizing that our
    laws had not been keeping women safe and taking new steps to
    protect women.
        But the Supreme Court ruled the law was not allowed by
    Congress's constitutional power to regulate commerce, even
    though violence against women has enormous impacts on our
    economy.
        So a woman who was raped and everyone agreed that it had
    happened and everyone knew who did it, she could not sue to
    recover damages for what she went through. She was not
    protected by our Constitution.
        Or take the even more horrific example--female genital
    mutilation. As barbaric as it is, up to 100,000 girls are
    potentially subject to this practice in America.
        Congress passed a law making it illegal. But a federal
    court in Michigan overruled it, and the current Department of
    Justice has failed to appeal it, apparently believing it was
    not Congress's place to protect American women and girls.
        Our rights cannot be subjected to the political whims of
    legislators, judges, or occupants of the White House. Our
    equality is inherent and must be guaranteed. Women are long
    past due equal treatment under the law and we will not be
    satisfied until it is guaranteed in stone.
        The drumbeat for the Equal Rights Amendment has never been
    louder. Since 2017, millions of women around the country are
    marching.
        Two more states, Nevada and Illinois, ratified the ERA. The
    Me Too and Time's Up movements have shined a light on the
    discrimination that persists in this country and more than a
    hundred women were elected to Congress.
        Women are not waiting anymore. We demand what is right--
    full equality now. We demand that it be spelled out in the
    Constitution and you know how to spell it--ERA Now.
        All right. Thank you, and I yield back, and thank you for
    this extraordinary historic opportunity to address the
    Judiciary Committee, especially since you have so much more to
    do. [Laughter.]
        [The statement of Ms. Maloney follows:]

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        Mr. Cohen. Thank you so much to each of our congresswomen.
    We thank you for your work and thank you for being our first
    panel.
        We will now have our second panel come up and be
    introduced.
        [Pause.]
        Mr. Cohen. Staff? Yeah, there you go. I can't tell the
    players without a program. Much better.
        Our first witness will be Ms. Kathleen Sullivan. Ms.
    Sullivan is a partner in the New York office of Quinn Emmanuel
    Urquhart & Sullivan, LLP. Previously served as dean of the
    Stanford Law School and she taught constitutional law at both
    Stanford and Harvard.
        She has argued 11 times before the Supreme Court and is the
    author of a scholarly article about women's equality. She
    received her JD from Harvard, her BA from Cornell, and a BA
    from Oxford where she was a Marshall. Served as a law clerk for
    the Honorable James Oakes of the Court of Appeals of the Second
    Circuit.
        And Ms. Sullivan--Dean Sullivan, you are recognized for
    five minutes.

        STATEMENTS OF KATHLEEN SULLIVAN, PARTNER, QUINN EMANUEL
      URQUHART & SULLIVAN, WASHINGTON, D.C.; HON. PAT SPEARMAN, A
       UNITED STATES SENATOR FROM THE STATE OF NEVADA; ELIZABETH
       FOLEY, PROFESSOR OF LAW, FLORIDA INTERNATIONAL UNIVERSITY
         COLLEGE OF LAW; PATRICIA ARQUETTE, ACTOR AND ADVOCATE

                     STATEMENT OF KATHLEEN SULLIVAN

        Ms. Sullivan. Thank you, Chairman Nadler, Chairman Cohen,
    Ranking Member Johnson. Thank you for allowing me to testify
    today in support of the Equal Rights Amendment.
        Thank you. [Laughter.]
        Ms. Sullivan. Chairman Nadler, Chairman Cohen, Ranking
    Member Johnson, thank you so much for the honor of allowing me
    to testify today in support of the Equal Rights Amendment,
    which would add to our Constitution the guarantee that equality
    of rights under the law shall not be denied or abridged by the
    United States or any state on account of sex.
        It would also provide that Congress has the power to
    enforce the amendment by appropriate legislation. As noted by
    Congresswoman Maloney and Congresswoman Speier in their
    eloquent remarks, the United States Constitution, the world's
    oldest written constitution, is also the only major written
    constitution in the world that lacks a provision declaring that
    men and women are equal, and now is the change to correct that
    omission, that stain, that embarrassment about our Constitution
    through the ratification by just one more state of the 1972
    amendment.
        Just to give some examples, the French constitution
    provides that the law guarantees to the woman in all spheres
    rights equal to those of men. The German constitution provides
    that men and women have equal rights and that nobody shall be
    prejudiced or favored because of their sex.
        The constitution of India provides that the state shall not
    discriminate against any citizen on grounds of sex and every
    written constitution promulgated since World War II contains a
    sex equality provision, but not ours.
        Given the vital role that U.S. Constitution has played in
    inspiring and informing the written constitutions of other
    nations, this is a situation that cries out for correction.
        Now, you might ask why do we need an equal rights amendment
    when the United States Supreme Court has interpreted the equal
    protection clause passed in the aftermath of the Civil War and
    erasing the stain of slavery from our existence and declaring
    equal protection above all for purposes of preventing race
    discrimination.
        Why is it not enough that sex discrimination has been
    shoehorned into the equal protection clause through judicial
    interpretation?
        And make no mistake, the decisions that were brought about
    in the United States Supreme Court through the brilliant
    advocacy of Ruth Bader Ginsburg as a young women, working
    together with other women and men to bring about those
    interpretations--make no mistake that those decisions were
    momentous and important.
        But they are no substitute for having an equal rights
    amendment in the Constitution. The decisions of the Supreme
    Court do not have the strength, the endurance, or the efficacy
    of an expressed constitutional amendment.
        They are the product of transient and shifting judicial
    majorities. We, the people, speak through our Constitution with
    more permanence than any court majority through its decisions
    as we made clear when four times in our history we passed
    amendments overruling decisions of the Supreme Court. This
    nation should proclaim fidelity to the foundational principle
    of sex equality that will endure for the ages to come and not
    turn on the vicissitudes of Supreme Court appointments.
        Finally, I would like to make the point that this Congress
    absolutely has the power--absolutely has the power to clear
    away any impediment that the deadline imposed back in the 1970s
    might be thought to impose to ratification by just one more
    state--just one more state--and here is why.
        And I want to adhere to three very conservative principles
    of constitutional interpretation in making this argument:
    textualism, originalism, and federalism.
        First, the text of Article 5 provides that the Congress,
    whenever two-thirds of both houses shall deem it necessary
    shall propose amendments to this Constitution which shall be
    valid to all intents and purposes as part of this Constitution
    when ratified by the legislatures of three-fourths of the
    several states.
        Article 5, the text, places no time limits on the states'
    ratification process. Nothing in Article 5 says that
    ratification must by synchronous, contemporaneous, or bounded
    within any particular time frame.
        To the contrary, Article 5 says valid when ratified and
    that is the end of the matter.
        Second, our history confirms as much. The 27th Amendment,
    which prevents congressional pay raises until an intervening
    election of the House, was proposed by James Madison in the
    First Congress back in 1789 and yet it became our law when the
    38th state ratified it in 1982.
        No one questions that the 27 Amendment is an amendment to
    our Constitution and what is good enough for James Madison is
    good enough for the women of America.
        Finally, in addition to the text and history, our
    constitutional structure supports the idea that Congress can
    remove any impediment to the states' ratification when the 38th
    states decides to join.
        The Framers split the atom of sovereignty in two. The
    states have independent powers. Article 5 gives the states the
    powers to ratify and consistent with the structural principle
    of federalism Congress should view itself as lacking the
    constitutional authority to fetter the ratification process of
    the states and certainly as having the authority to lift its
    own self-imposed deadlines.
        For those reasons, I respectfully urge that H.J. Resolution
    38, proposed by Congresswoman Speier, is proper,
    constitutional, and merits swift markup and adoption by the
    House.
        Thank you very much.
        [The statement of Ms. Sullivan follows:]

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        Mr. Cohen. Thank you so much.
        Our next witness is Elizabeth Foley. She is a professor of
    law at Ford International University where she teaches con law,
    civil procedure, and health care law. She is also counsel in
    the Washington, D.C. office of Baker Hostetler and she
    practices constitutional litigation there.
        She previously taught at Michigan State University College
    of Law, received her J.D. summa cum laude from the University
    of Tennessee College of Law where she was an article editor of
    the Tennessee Law Review, and was a valedictorian of her class.
        Why didn't you come and intern for me? [Laughter.]
        Mr. Cohen. She has a B.A. in history from Emory University
    and an LL.M. from Harvard. She also served as law clerk to the
    Honorable Carolyn King of the U.S. Court of Appeals for the
    Fifth Circuit.
        Professor Foley, you are welcomed as a volunteer.

                      STATEMENT OF ELIZABETH FOLEY

        Ms. Foley. Thank you so much, Mr. Chairman.
        Chairman Cohen, Chairman Nadler, Ranking Member Johnson,
    thank you for inviting my testimony. I think it is an important
    issue.
        As somebody who has taught constitutional law and practiced
    in the field for about 25 years, I am going to focus on what I
    think are important procedural aspects to the constitutional
    amendment process.
        I am not going to opine on the merits of the ERA. I am a
    woman and I don't have any particular expertise on that matter
    and you have probably better witnesses who can do so.
        So we have 27 constitutional amendments, as everyone knows.
    The longest one for ratification was, other than the 27th
    Amendment, which I will talk about in just a second, was the
    22nd Amendment, which deals with presidential term limits.
        That amendment, the 22nd Amendment, took a whopping three
    years and 340 days for ratification. And the Madison
    amendment--the 27th Amendment--is an outlier and it was one of
    James Madison's original 12 proposed articles to the First
    Congress. Ten of them made it out as the Bill of Rights. The
    Madison amendment was ratified in 1992. It took 203 years to
    ratify it.
        But that was only possible because, in keeping with
    Congress's tradition, at least until the 18th Amendment in
    1917, the Madison amendment, like all of the amendments until
    the 18th, contained absolutely no expressed ratification
    deadline.
        So its use as some sort of precedent for the ratification
    of the ERA today, the original 1972 ERA which was proposed out
    of Congress, is limited to none.
        Congress did have a seven-year expressed ratification
    deadline for the ERA that was proposed in 1972 and, in fact,
    some people think that, well, you know, maybe it is because the
    ERA's seven-year ratification deadline is contained in its
    preamble rather than its text that that has some sort of legal
    significance.
        I see absolutely no basis for that argument. In fact, that
    argument was made in a case called Idaho v. Freeman, which was
    decided by the federal district court in Idaho in 1981 and was
    roundly rejected.
        And I am not here to argue that Freeman has itself
    precedential value because it was vacated by the Supreme Court
    because its challenge to the three-year extension to the ERA
    ratification became moot by the time the Supreme Court got the
    case and therefore the Supreme Court decided to vacate that
    district court opinion.
        However, the rationale--the analytical framework used by
    the district court in Freeman I think is a good one and I think
    any court that was asked to decide the issue today would decide
    it the same way, and let me explain why.
        The district court in Freeman hung its hat, essentially, on
    a 1921 decision of the Supreme Court called Dillon v. Gloss.
    Dillon v. Gloss was a unanimous Supreme Court decision and it
    is still good today.
        The Dillon court basically dealt with the 18th Amendment--
    the Prohibition amendment. Mr. Dillon was convicted under a
    federal prohibition law and he said, well, you can't convict me
    under that law because the 18th Amendment itself is
    unconstitutional.
        He said the 18th Amendment is unconstitutional because it
    has a ratification deadline. Again, it was the first one to
    have one. He said, you can't do that. Congress can't impose a
    seven-year ratification deadline, and it did and therefore the
    Constitution is null and void.
        The Supreme Court unanimously said, no, it is not. Supreme
    Court said certainly Congress has the power to impose a
    ratification deadline if it wants to.
        Specifically, the Supreme Court in Dillon said that
    Congress's power to impose a ratification deadline derives from
    its Article 5 power to propose a mode of ratification.
        And because this is part of Congress's Article 5 power to
    propose constitutional amendments and not Congress's Article 1
    power, which is ordinary legislation, the reasonable
    implication from that Dillon rationale is that if Congress
    imposes a ratification deadline, that ratification deadline is
    a part of the mode of the ratification and it must be passed
    pursuant to Article 5 by two-thirds supermajorities and not
    simple majorities as is ordinary legislation.
        For this reason, when the 95th Congress purported to extend
    the ERA ratification deadline by an additional three years, it
    was likely unconstitutional because it was passed by a simple
    majoritarian joint resolution of both chambers of Congress and
    signed, by the way, by President Carter.
        So any attempted third bite at the apple extending the
    ERA's ratification deadline yet again would likely be
    unconstitutional.
        And finally, in closing, it is notable that there has been
    no constitutional amendment that has ever been ratified outside
    of Congress's original expressed ratification deadline and
    there have been eight of those amendments, by the way.
        The ERA would be the first. If it is ratified under another
    majoritarian congressional extension, the amendment would be
    birthed under a shadow of constitutional illegitimacy and,
    frankly, that is not good for those who support gender equality
    or seek societal consensus on that particular effort.
        Indeed, if broad societal consensus exists for the ERA, why
    not start fresh, and then there could be no doubt.
        Thank you.
        [The statement of Ms. Foley follows:]

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        Mr. Cohen. Thank you.
        Our next witness is Senator Pat Spearman, who represents
    north Las Vegas in the Nevada Senate, to which she was first
    elected in 2012. She currently serves as co-majority whip. In
    2017, Senator Spearman led the revived effort to ratify the
    Equal Rights Amendment with Nevada becoming the first state in
    35 years to ratify the amendment.
        She received her Master of divinity degree from the
    Seminary of the Southwest and her B.A. from Norfolk State
    University--Norfolk.
        Senator Spearman, you are recognized for five minutes.

                       STATEMENT OF PAT SPEARMAN

        Ms. Spearman. Thank you, and good morning, Chairman Nadler
    and Chairman Cohen, Ranking Member Johnson.
        For the record, I am Pat Spearman. I represent Senate
    District One in the great state of Nevada. It is an honor to be
    there today to discuss the Equal Rights Amendment.
        On March 22nd, 2017, 45 years after the ERA was submitted
    to Congress, Nevada became the first state to ratify the ERA
    after expiration of the June 30th deadline. The state of
    Illinois followed with ratification on May the 30th. It was my
    great privilege to sponsor Senate Joint Resolution 2, which
    supported Nevada's ratification in 2017.
        When this resolution was discussed, one of the questions
    always asked is the ERA necessary, and I continue to see
    evidence of the need for the ERA every day.
        In a 1997 article in the William and Mary Journal of Women
    and Law, they concluded that the need for a federal equal
    rights amendment remains as compelling today as it was in 1978
    when the now Supreme Court Justice Ruth Bader Ginsburg wrote in
    the Harvard Women's Law Journal, ``With the Equal Rights
    Amendment, we may expect Congress and the state legislators to
    undertake in earnest systematically and pervasively the law
    revised so long deferred and in the event of legislative
    default the courts will have an unassailable basis to apply the
    bedrock principle all men and women are created equal.''
        Pay equity, or maybe I should say pay inequity, is still a
    significant concern. Although the gender pay gap is narrowing,
    according to the Pew Research Center, women of the United
    States earn just 80 percent of what their male counterparts
    earn.
        Women of color, black women typically, make only 60 percent
    and Latinas make only 50 percent of what white non-Hispanic
    male counterparts make.
        A common theme of workforce issues for women is the lack of
    paid leave and affordable child care. In Nevada, the
    legislature is currently considering a measure that would
    require a private employer with 50 or more employees to provide
    paid leave to each employee.
        Just last week, the Nevada Senate passed Senate Bill 166 to
    ensure equal pay for equal work and penalize employers who
    practice pay discrimination.
        The Nevada Assembly will hear the bill soon and I
    anticipate the bill will pass as well. Governor Sisolak said in
    his State of the State Address he intends to make pay equity
    the law in the Nevada and our state will have a pay equity law.
        Moreover, when it comes to crimes against women, we
    continue to suffer from victim blaming such as shame, stigma,
    and the ingraining of guilt upon the female victim.
        The Civil Rights Act of 1964 prohibits employment
    discrimination based on race, sex, color, national origin, or
    religion when sexual harassment became codified in U.S. law
    based upon sexual harassment cases in the 1970s and the 1980s.
        The EEOC saw 13 percent increase of workers alleging sexual
    harassment from fiscal year 2017 to fiscal year 2018. To begin
    the journey of addressing sexual discrimination and harassment,
    in Nevada we now have a governor's task force on sexual
    harassment, discrimination law, and policy to reduce harassment
    in the executive branch.
        February 4th, 2019, the Nevada legislature became the first
    female majority legislature in the country. Women now hold 51
    percent of the 63 legislative seats and nationally the number
    of legislative seats also increased.
        We celebrate the fact that Congress has 23 percent more
    women. But the struggle continues and the work is not done.
        Mr. Chair, and members of the subcommittee, when the ERA
    first gained popularity in the late 1960s and 1970s, it was
    heard as a clarion call for change, just as a change continues
    for racial equality, fairness, and justice some 154 years after
    adoption of the 13th Amendment.
        The work for change today has become a clarion call to act
    responsibly in a manner that ensures equity for all of its
    citizens.
        Mr. Chairman and members of the subcommittee, I am before
    you today because I believe from the bottom of my heart in the
    foundations of the ERA for all people.
        In restricting the time limit for ratification of the ERA,
    it can be found in the resolving clause, as you have already
    heard. But now is the time to show the global neighborhood that
    we as Americans, we as Americans, to show the global
    neighborhood that when it comes to equality we lead for all.
        Equality for justice has never been given, never. Each
    generation has always had to fight for the equal justice and
    the equal rights that they so deserve.
        Vietnam veterans persisted to get health care recognition.
    HIV/AIDS persisted to ensure that human dignity and members of
    the LGBTQ community persisted to gain marriage equality.
        Persistence, faith, and hope fuel the indomitable spirit of
    this movement and we must honor the sacrifices of our mothers
    and our grandmothers. We must commit to the preservation of
    justice and equality for our posterity.
        Mr. Chairman and members of the subcommittee, we got tired
    but we did not faint. We became weary but we did not stop.
    History demands that we take a stand on this most important
    journey toward full equality.
        We stand on the right side of history. We must persist in
    the name of all that is good. The road is long and it has been
    full of twist and turns. But we must continue to get the Equal
    Rights Amendment as part of our Constitution.
        Thank you for your time and attention.
        [The statement of Ms. Spearman follows:]

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        Mr. Cohen. Thank you, Senator. [Applause.]
        Mr. Cohen. Cool it. Cool it. Can't do that. Can't do that.
        Finally, Patricia Arquette is an Academy Award-winning
    actress with a long and distinguished acting career dating back
    to the 1980s, also one of Hollywood's leading advocates for the
    Equal Rights Amendment and a passionate activist for women's
    equality. I believe you might have even mentioned the ERA when
    you received an award over the past. That is pretty strong.
        You are recognized for five minutes.

                     STATEMENT OF PATRICIA ARQUETTE

        Ms. Arquette. Thank you, Chairman Nadler, Chairman Cohen,
    Ranking Members Johnson and Collins and Congresswomen Speier
    and Maloney for your tireless work on the ERA, and to the
    members of the committee.
        I come here not as a constitutional lawyer but as a
    citizen, as an American woman, to advocate for what I feel is
    critical for our country.
        I come with the good will and faith that when we examine
    the reality of women in America today and remember the historic
    injustices women have faced in our country, we will all feel
    compelled to do what we must to ensure that women are afforded
    every legal right and equal protection in our country.
        Women have waited 232 years to be enshrined as full and
    equal citizens. Why? Because in 1787 women were left out of the
    Constitution intentionally.
        While the Constitution says nothing about deadlines for
    amendments, Congress put a deadline on the Equal Rights
    Amendment when it was passed in 1972.
        I am here to appeal to you to remove the 1982 deadlines
    placed on Congress for the ratification of the ERA.
        Just because women didn't achieve full equality in America
    by 1978 or by 1982 doesn't mean they shouldn't have it today.
    There is a groundswell in this country. Women are being elected
    in record numbers.
        Women are rising up by the millions and saying they will
    not be sexually assaulted, they will not be paid less, they
    will not be treated as subhuman, and they will have their
    voices heard.
        Some people think women do have constitutional protections
    because of the 14th Amendment. But when asked about this,
    Supreme Court Justice Antonin Scalia said, certainly the
    Constitution doesn't require discrimination on the basis of
    sex; the question is whether it prohibits it. It doesn't.
        So a recent Supreme Court justice interpreted the
    Constitution as saying it did not prohibit discrimination on
    the basis of sex. So whether you agree with him or not, the
    fact remains this is how a recent Supreme Court justice
    interpreted women's rights in our Constitution, and this is why
    we need to amend the Constitution and leave no room to question
    of women have fully constitutional equality because women's
    protections cannot be left to interpretation alone.
        So let us look at the treatment of women in America today.
    These are present-day truths. These are not antiquated horrors
    we have to search for in history books. These are things that
    are happening to both Democratic and Republican women.
        In America in 2019 there are estimated to be hundreds of
    thousands of untested evidentiary rape kits across the nation.
    Only half our states mandate the timely testing of evidence
    contained in these rape kits.
        Many victims are being billed for the collection of their
    own forensic evidence. Countless emergency rooms and hospitals
    don't even have trained staff to collect evidence in rape kits
    even though it estimated that one-quarter of all women in
    America will be raped in their lifetime.
        In some states in America today, women can be forced to co-
    parent with their convicted rapists and incarcerated women, up
    until three months ago, could be forced to give birth while
    shackled to beds.
        We have the only rising mortality rate in the developed
    world. American women, especially African American, Latina, and
    Native American women, are dying of pregnancy-related
    complications here on the--the wealthiest nation on Earth.
        And we know the gender pay gap is having devastating
    consequences for women and their families, especially women of
    color. We know 98 percent of all jobs women are paid less.
        According to the Census Bureau, 4 million women over 65
    years old are living in poverty. But if they had equal pay more
    than 2.5 million children with working single mothers would be
    lifted out of poverty.
        These are just a few examples of how systemic bias against
    women is expressed in America. Why? Because women don't have
    the same value as men in our country. That was true in 1787. It
    was true in 1982. It is true in 2019.
        So I hope by now we are all ready to make women's equality
    a bedrock American value and enshrine it in the U.S.
    Constitution. I hope we are ready for all our mothers,
    daughters, sisters, and friends to have full equal rights.
        Why didn't women achieve full constitutional equality in
    1787 or 1982? Because the country wasn't ready. Well, I hope
    you are ready now because have been waiting 232 years for
    equality in this country and it has failed them.
        Legislators have blocked the passage of the Equal Rights
    Amendment for decades. But we are done waiting.
        Thank you.
        [Applause.]
        [The statement of Ms. Arquette follows:]

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          Mr. Cohen. Thank you very much, Ms. Arquette.
        We will now proceed under the five-minute rules which we
    have for asking questions and each member of the panel will be
    questioned.
        I would first like to start with Ms. Arquette. You are a
    star, famous, celebrated. And yet, in your career I am sure you
    have faced some type of sexism, the same that ordinary women
    face every day.
        What are some of the gender-based obstacles that you had to
    face in your own career?
        Ms. Arquette. I have been sexually assaulted. I have had to
    turn down work because I had employers that were not willing to
    be reasonable as people. They wanted me to sign papers saying I
    would be naked and do whatever they wanted.
        I am an actor. I am dealing with a director. I have no say
    as an employee or as a citizen, as a human being. I have called
    the police when I was sexually assaulted by a stranger on the
    road and had the police not even come, and I was a kid. I have
    had so many experiences in this country of sexual assault.
        But it is not really just about me. Woman after woman--
    okay. Listen, don't we all expect when one-quarter of all women
    will be raped in their lifetime isn't it reasonable to expect
    that an emergency room would know how to collect evidence from
    a rape kit? Isn't that reasonable?
        And yet, women are going when they have been raped from
    hospital to hospital and being told--sometime they will go to
    four hospitals right after they have been raped and they are
    told they don't know how to collect the evidence. They have to
    go to another place.
        By the time they get their rape kit taken--and this is
    from--Joyful Heart gave me this information--by the time they
    get their rape kit taken the date rape drug is gone. It is no
    longer in their system.
        And we know only 3 percent of rapists ever spend a day in
    jail. This is systemic. This is across our country. We need
    every tool to root out bias, both racial bias that women of
    color are experiencing, and also we have to root out sexist
    bias.
        Look, we have women also in Alabama who are dying of
    treatable cervical cancer because they are poor black women.
    There is one gynecologist for five counties. We have African-
    American women dying--we are the only country with a rising
    maternal death rate in the developing world and 700 black women
    died.
        What is going on? What is happening here? These are
    preventable things. But time after time we are seeing all these
    layers of bias, and until we have the Equal Rights Amendment
    and with the--all of these other Title 9 and all of these
    things we will never be able to root out this and will never be
    able to change this for American women.
        Mr. Cohen. Thank you so much.
        Ms. Sullivan, let me ask you some rapid fire, if you do
    have time. Some opponents of the ERA have argued it would have
    a terrible effect like eliminating women's sports teams or
    abolishing separate bathrooms.
        Can you tell me what your thoughts are on those arguments?
        Ms. Sullivan. The ERA would have no such effect. We have
    had interpretation of the equal protection clause that allows
    the unequal treatment of men and women when it is important to
    rectify past disadvantage, for example, and we have had ERAs in
    22 states--adopted by 22 states and we haven't seen the
    elimination of same sex sports teams or same sex bathrooms in
    any of those states. So that is a myth.
        Mr. Cohen. Thank you.
        Professor Foley has argued that the states which have
    rescinded their ratification should not be counted in the
    assessment of whether we have reached the 38-state limit. In
    your view, should states be able to rescind their ratification?
        Ms. Sullivan. In my view, they should not. Article 5
    provides for ratification. It does not provide for rescission,
    and we have never recognized a state rescission of its prior
    vote for an amendment.
        In fact, the 14th Amendment that contains the equal
    protection clause was ratified even though Ohio and New York
    had purported to rescind their votes for it. That creates
    powerful precedent that rescissions are null and void and that
    is what the attorney general of five states told the states who
    tried to rescind after the 1972 passage of the ERA. Rescissions
    do not count. Once ratified, it is a one-way ratchet.
        Mr. Cohen. And some Republicans have brought up the issue
    of abortion or a woman's right to choose. You mentioned all the
    industrialized nations of the world have amendments on ERA.
        How have they affected their countries and just, in
    general, can you discuss what effect ERA would have on
    reproductive rights?
        Ms. Sullivan. The ERA is a totally separate issue from
    abortion and reproductive rights. It will help encourage the
    equality of women, which does involve reproductive rights. But
    in those countries with ERAs and in those states with ERAs the
    passage of the ERA has not changed the law of abortion in those
    countries.
        The Supreme Court has already protected the right of access
    to abortion as a matter of reproductive choice just likes it
    protects other intimate choices like the choice to use birth
    control, and that debate happened without the ERA. So the ERA
    is about equality and any debate about abortion and
    reproductive rights will continue after its passage as it has
    in other states and other countries that have adopted it.
        Mr. Cohen. Thank you. And now I would just like to go to
    Professor Foley for a little history lesson.
        I am sure as a University of Tennessee law student you
    learned about the perfect 36 in Tennessee and the ratification
    of the women's right to vote.
        Ms. Foley. Yeah.
        Mr. Cohen. Can you tell us the story about Harry Burn, a
    Republican legislator? Do you know that story?
        Ms. Foley. No, I don't.
        Mr. Cohen. Well, you should.
        Ms. Foley. Okay.
        Mr. Cohen. So should everybody else in America. It came
    down to 1920. Thirty-five states had passed, ratified. Twelve
    had said no. One state left--Tennessee. Major battle.
        Senate, which I was a member not at the time but for 24
    years, passed it, like 25 to 7. The House was tied. It was
    almost the last day. A Republican male, a young man named Harry
    Burn, got a note from his mother, ``Harry, do the right
    thing,'' and Harry did the right thing and Harry Burn, a
    Republican, voted yes, passed the amendment, the perfect 36,
    and women had the right to vote.
        Thank you very much, Harry Burn. [Applause.]
        Mr. Cohen. I now recognize Mr. Johnson, who walks in Harry
    Burn's shoes. [Laughter.]
        Mr. Johnson of Louisiana. And my mother would have given me
    the same advice and I would have voted for it.
        First, regarding Ms. Sullivan and my colleague,
    Representative Maloney's, bold contention that the ERA, quote,
    ``has nothing to do with abortion'' and that my saying so is
    divisive, I respectfully present to you all and will ask
    consent to include in the record of this hearing these
    documents, that show that pro-abortion groups are, clearly,
    saying now that adopting the ERA would mean the end of laws
    that protect the sanctity of every human life and I will give
    you three examples.
        In a new article published by the National Organization for
    Women entitled, ``Is the Equal Rights Amendment Relevant in the
    21st Century?'' Abortion is discussed on pages 3, 4, 5 and 6,
    and they say, quote, ``An ERA properly interpreted would negate
    the hundreds of laws that have been passed restricting access
    to abortion care and contraception, denial of legal and
    appropriate legal and appropriate care for women and only women
    as sex discrimination, and a powerful ERA should recognize and
    prohibit that most harmful of discriminatory actions,''
    unquote.
        Consider a January 2019 complaint by the Women's Law
    Project and Planned Parenthood and Allegheny Reproductive
    Health Center v. Pennsylvania Department of Health and Human
    Services. It is a lawsuit that argues the state ban on
    government-funded elective abortions violates the state's ERA
    and that any denial of this claim including past Supreme Court
    construction, quote, ``is contrary to a modern understanding of
    the ERA.''
        Look, the fact is that now there is essential agreement
    between pro-life and pro-abortion groups that the language of
    the 1972 ERA is likely to result in powerful reinforcement and
    expansion of abortion rights.
        NARAL/Pro-Choice America in a March 13th, 2019, national
    alert--this is last month--asserted that, quote, ``The ERA
    would reinforce the constitutional right to abortion and it
    would require judges to strike down anti-abortion laws,''
    unquote.
        So would just say respectfully all these groups are not
    being divisive. They are simply acknowledging the facts.
        Here is my questions, real quick, for Professor Foley.
    President Jimmy Carter wrote to the House Judiciary Chairman
    Peter Rodino on July 12th, 1978, and he stated, and I quote,
    ``I am hopeful that ERA will be ratified before the present
    deadline expires,'' unquote. That original expiration date, as
    we have all heard, was March 22nd, 1979.
        Indeed, the ERA proponents knew that they could not secure
    ratifications from 38 states by March 22nd, 1979, so they
    lobbied Congress for more time, which resulted in the
    congressional majority vote for a 39-month extension.
        But even that deadline wasn't met, and on November 16th,
    1983, the New York Times matter of factly reported that the
    ERA, and I quote, ``went through laborious debates in the
    legislatures of all 50 states.
        That proposal died when its time limit for ratification
    expired in June 1982, still three states short of the necessary
    approval of 38 legislatures,'' unquote.
        Congressional Quarterly reported the proposed Equal Rights
    Amendment to the Constitution officially died June 30th, 1982,
    three states short of the 38 needed to ratify it.
        Here is the question. Have there been any developments
    since 1982 that would render any of those contemporaneous
    statements of the ERA's expiration somehow inaccurate?
        Ms. Foley. Short answer, no. Longer answer--I mean, the
    point from Supreme Court precedent, I think, to keep in mind
    procedurally about constitutional amendments is that you are in
    charge, right.
        Congress is in charge and you are in charge because of
    Article 5, not because of Article 1. And so what that means is
    that you don't have to impose a ratification deadline if you
    don't want to.
        But if you do, it sticks, and it is justiciable. And so the
    problem with ERA is that you have put a seven-year deadline in
    there and to change that would require a new proposal with
    supermajorities of both houses of Congress.
        So as much as you may want the ERA to pass, I don't think
    you have the constitutional authority to do so any more than
    you could, for example, pass a proposed amendment without a
    constitutional ratification deadline and then decide a few
    years later to suddenly impose a ratification deadline right
    before the requisite number of states had ratified the three-
    quarters had been--threshold had been satisfied in order to
    stop the ratification.
        I don't think you can go in either direction and I think
    that is what the courts would hold.
        Mr. Johnson of Louisiana. I so appreciate you pointing out
    the distinction between Article 5 and Article 1 because I think
    there is a lot of misunderstanding about where this power--from
    where it derives and that this has never happened before where
    an amendment was adopted past its deadline. That is really
    important for you to point it out. I appreciate that.
        Another quick question. Some claim the ERA has wide popular
    support but if that were so why is there a reluctance on the
    part of the majority of this Congress to simply reissue the ERA
    to the states without any ratification deadline, do you think,
    and what does that reluctance say about the actual prospects of
    popular support for the ERA?
        Ms. Foley. Well, it is a great question. I think that it is
    just easier, right, to just go with the three-state strategy
    and see if it sticks after years and years of litigation.
        I don't think it will stick so I think, unfortunately, that
    it would actually set back the clock for those who support
    gender equality.
        I think, you know, it would make things worse. If you
    really want to do this the right way to do it is clear. It is
    to go ahead and re-propose by two-thirds by both houses of
    Congress and submit it to the states for three-fourths
    ratification.
        Now, if you can't get the two-thirds from both houses of
    Congress today, well, that may reflect the political reality of
    today. But that is why there is a supermajority threshold for
    the proposal of constitutional amendments. They require
    supermajorities. They require societal consensus.
        One of the reasons why we may not have societal consensus
    today in 2019 when we had it in 1972 is that things have
    changed. In 1972, for example, that was one year before the
    Supreme Court decided Roe v. Wade.
        The Supreme Court had not firmly entrenched its equal
    protection analysis. I believe the big case really was the VMI
    case in 1996 penned by Ginsburg where she basically imposed an
    intermediate standard of review for gender-based
    classifications under the equal protection clause.
        That means that all gender-based classifications--state-
    based classifications receive a presumption of
    unconstitutionality today. We didn't have that back in 1972. So
    I think the fact that the Supreme Court has changed its equal
    protection jurisprudence including recognizing a woman's right
    to terminate her pregnancy prior to the point of fetal
    viability has changed things.
        Mr. Johnson of Louisiana. Thank you. I am out of time.
        I yield back.
        Mr. Cohen. Thank you, Mr. Johnson.
        I now recognize Mr. Nadler from the vibrant west side.
    [Laughter.]
        Mr. Nadler. Thank you, Mr. Chairman.
        Professor Sullivan, Professor Foley argues against our
    right to rescind the ratification deadline and she quotes the
    Dillon case, which, I would point out, is a district court
    case. It was mooted--it is not a district court case?
        Ms. Foley. Dillon v. Gloss is a Supreme Court case decided
    in 1921. It is, I believe, Idaho v. Freeman, if you want to----
        Mr. Nadler. Freeman. Okay. You quote that case and,
    basically, you are saying that--you are making the Article 5/
    Article 1 distinction because Article 5--Congress's power to
    impose a deadline derives from its power to proposed amendments
    to the Constitution under Article 5.
        Therefore, to change that, you would need the same
    supermajority that you had to start with because it is Article
    5, not Article 1. Article 1 is the general legislative powers.
        So we do not have the ability to extend the ratification
    deadline except with a two-thirds. I would ask Dr. Sullivan why
    is that wrong?
        Ms. Sullivan. It is wrong and you absolutely can change the
    deadline. Am I the only textualist here? I would like to go
    back to the text of Article 5.
        Mr. Johnson of Louisiana. I am on record. I am a
    textualist.
        Mr. Nadler. Justice Scalia is not here.
        Ms. Sullivan. Article 5 does not provide Congress with any
    power to decide when an amendment has been ratified by the
    states. It simply says when three-quarters of the states ratify
    the amendment as enacted.
        So it is unclear whether you have the constitutional power
    as against the authority of the states under Article 5 to tell
    them when their ratification deadline is up.
        But if you have that power, you surely have the power to
    change, alter, rescind, overrule your deadline and you got that
    from the Supreme Court in a case that my friend, Professor
    Foley didn't mention--Coleman v. Miller, which involved the
    Child Labor Act Amendment and which said that the issue of
    whether Congress can control deadline is a nonjusticiable issue
    within the exclusive and unreviewable authority of Congress.
        So it is not clear you have the power to set a deadline. It
    is a 20th century practice. It is not in the framing. It wasn't
    something James Madison thought we needed, and we didn't need
    it for his amendment.
        But if you had the power to set one you certainly have the
    power to change it.
        Mr. Nadler. So the case law does not firmly establish the
    right to set a deadline in the first place.
        Ms. Sullivan. Correct. Well, the case law says that--Dillon
    v. Gloss, to the extent it holds anything clear, from my
    position, Dillon v. Gloss said that when the 38th state
    ratified--it wasn't 38 then because we didn't have Alaska and
    Hawaii--when three-quarters of the states have ratified, it is
    passed.
        That is why Dillon had to go to jail for sending a case of
    wine in San Francisco because when the 38th state ratified
    before Congress ever said whether it was good or not, that
    prohibition law was enacted.
        So actually Dillon v. Gloss stands for the position that
    the state--when 38 states ratify we are done. One and done.
        Mr. Nadler. Because Congress lacks the power to limit
    states' sovereignty by putting--because the states have the
    power to ratify under the Constitution and it would be a
    limitation on states' sovereignty to limit their power by a
    deadline?
        Ms. Sullivan. That is exactly right, your Honor. That is a
    very plausible argument and usually conservatives like states'
    rights. I don't know why they don't like states' rights here.
        [Applause.]
        Mr. Nadler. I must say, I have observed over the course of
    a rather lengthy political career that conservatives and
    sometimes liberal too--liberals who like states' rights when it
    serves their purposes and they don't like states' rights----
        Ms. Sullivan. Blue states' rights.
        Mr. Nadler. Well, in any event--in any event, and so we
    don't have the power to set that ratification in the first
    place, but if we did we would have the same power from the same
    source to rescind that right, too?
        Ms. Sullivan. That is exactly right. You don't really have
    it through Article 5 because Article 5 doesn't speak to any
    congressional promulgation.
        You only have it if you have it at all through Article 5
    plus the necessary and proper clause of Article 1 Section 8. If
    you have it under the necessary and proper clause, you
    certainly have the power to change it.
        Mr. Nadler. That is a very powerful argument.
        Ms. Arquette, thank you for your leadership and activism on
    this subject. Can you talk about why you think the push to pass
    the ERA is resonating with so many men and women at this point
    in American history?
        Ms. Arquette. Well, one of the things is, as we have heard
    earlier, the gender pay gap and how half of the women working
    in America are the primary breadwinners.
        We know what the wage impact is and for Latina women over a
    lifetime that is over $1,135,000, for black women that is
    $946,000, and for white women that is around $400,000.
        And it doesn't change, actually. Oddly enough, the gender
    pay gap remains. We have it in every state. We have it in every
    country on Earth, this gender pay gap, and we need every
    possible way to eradicate that, to look at bias. Some wonderful
    things have happened recently--that some leaders of industry
    have come forward and done gender pay gaps to remedy the
    situation and they found, yes, there they were--they were.
    Everything that everyone talked about it is there.
        So we need to advance our country because women are going
    to retire in poverty, or twice as likely as men or one-third
    more likely than men to retire in poverty. It takes them longer
    to pay off their houses, their car payments, to put their kids
    through college.
        It is really having devastating effects on women.
        Mr. Nadler. Thank you very much. My time has expired.
        Mr. Cohen. Thank you, sir.
        And I now recognize the gentleman from Virginia who has so
    far had outstanding service on this committee, Mr. Cline.
        Mr. Cline. Thank you, Mr. Chairman, and I want to thank the
    witnesses for being here and for all the attendees who are here
    and for Congresswoman Speier and Congresswoman Maloney for all
    of your work over the years to ensure equality for women.
        Women deserve to live, work, and thrive in America free
    from discrimination and inequality. This document, which I
    carry around with me, is very important to every American and
    should ensure equal rights for every American.
        I first want to ask Professor Foley if, in light of the
    answers that were given, if you have anything else to add,
    briefly.
        Ms. Foley. Yeah. I did. If I could respond about Coleman. I
    didn't have time to talk about Coleman but I think it is worth
    talking about.
        It was a case that went to the Supreme Court. It was
    decided in 1939. It involved the Child Labor Amendment, which
    is one of those amendments that never got ratified.
        The Child Labor Amendment did not have a ratification
    deadline, which was typical of its day and so what happened was
    that Kansas--the state of Kansas originally rejected it about a
    year after it was proposed, and then 13 years later after it
    was proposed Kansas changed its mind and ratified it.
        And so the question before the court--a bunch of Kansas
    state legislators who were mad that Kansas changed its mind
    took the case all the way to the Supreme Court and they said,
    you can't do that because, number one, it is an improper
    ratification because a lieutenant governor broke a time in the
    Senate and that was wrong, and number two, the fact that it was
    ratified so long after the original proposal 13 years after the
    original proposal--means that it was not a valid ratification
    because it wasn't within a reasonable time of ratification.
        So the Supreme Court decided in a majority opinion that the
    issue of the 13 years that it took Kansas to ratify was
    nonjusticiable, and it was nonjusticiable because the Congress
    that proposed the Child Labor Amendment had chosen not to
    provide a ratification deadline.
        So think about it, right. You pass a proposed
    constitutional amendment. You send it to the states. It has no
    ratification deadline. One of the states, 13 years later,
    decides to ratify it.
        They take it to the Supreme Court and the Supreme Court is
    asked to decide if the 13 years is too late, right, and the
    Supreme Court said, no, it is not too late because you didn't
    provide a ratification deadline.
        The 13 years versus 20 years versus 203 years, as in the
    case of the Madison agreement, that is nonjusticiable. We are
    not going to touch that.
        But that has nothing to do with the inverse situation where
    you do provide a ratification deadline and it is not satisfied.
        So Coleman has no precedential value on that question,
    which is why I didn't put it in my primary remarks, and I think
    because Dillon is good law and it is a unanimous decision and
    it says, you are in charge and you can specify a mode of
    ratification pursuant to your Article 5 authority, that if you
    do provide a deadline it has to be adhered to.
        Mr. Cline. Thank you, and I also was reviewing the Supreme
    Court decision in Dillon v. Gloss and one of the passages in
    the decision, I am quoting, ``of the power of Congress keeping
    within reasonable limits to fix a definite period for the
    ratification we entertain no doubt.''
        Dr. Sullivan, do you entertain doubt?
        Ms. Sullivan. I do have doubt about Coleman.
        Thank you, Congressman. I do have doubt about Dillon v.
    Gloss. I think it doesn't take into account the federalism
    revolution we had on the Supreme Court under the leadership of
    Chief Justice Rehnquist.
        Mr. Cline. Okay. Reclaiming my time. Don't you agree that
    that would require an additional decision by the Supreme Court
    to reverse that decision to allow for it?
        Ms. Sullivan. Yes, it would. But I don't think Dillon
    controls--I think Dillon supports your power to change your
    procedures.
        Mr. Cline. Correct. So Congress does have the power to
    extend the deadline but that extending--some action by Congress
    would be necessary to give states that extra time. Is that
    correct?
        Ms. Sullivan. Well, I don't think it is necessary but I
    certainly think it is sufficient and I think you have the power
    to do it, notwithstanding Dillon.
        Mr. Cline. So, in your mind, that passage of that decision
    and the deadlines passed by Congress could be ignored by a 38th
    state in the next year?
        Ms. Sullivan. I think that is a potential decision that
    could be found by a Supreme Court in the future. But you don't
    need to face that because Coleman v. Miller did, as my
    colleague said, give you unreviewable authority to regulate
    your own deadline procedures and I think you can do it by a
    majority vote. You don't need two-thirds.
        Mr. Cline. Professor Foley, you disagree?
        Ms. Foley. Yeah, I do, because the people who cite Coleman
    v. Miller for this idea that everything Congress does
    associated with constitutional amendments is nonjusticiable are
    way over reading Coleman v. Miller.
        In fact, that position, that everything Congress does is
    nonjusticiable when it comes to Article 5, comes from a
    plurality opinion that was penned by Justice Black. It got four
    votes.
        That is less than five. That is not a majority. And in
    fact, that is the position they took--that everything Congress
    does when it comes to constitutional amendments is
    nonjusticiable.
        Now, think about it. Three members of the majority--there
    were seven members of the majority in Coleman--did not sign on
    to Black's concurrence. So there is three.
        Two dissenters ruled that it was justiciable. They wanted
    to address the issue. So you add three plus two from Coleman.
    You actually get five justices from Coleman writing a very
    narrow opinion, saying the only thing that was nonjusticiable
    in Coleman was whether Kansas's ratification 13 years after
    proposal was a reasonable period of time when Congress had not
    specified a time limit. That is it.
        Mr. Cline. Thank you. My time has expired.
        Mr. Cohen. Thank you, Mr. Cline.
        We now recognize Professor Raskin.
        Mr. Raskin. Mr. Chairman, thank you. Thanks to all of our
    witnesses.
        So there have been 17 amendments since the Bill of Rights
    and the vast majority of them have expanded equality, political
    participation, and democracy in America.
        So the 13th Amendment abolished slavery. The 14th Amendment
    gave us equal protection and due process. The 15th Amendment
    struck down race discrimination in voting.
        The 17th Amendment shifted the mode of election of U.S.
    senators from the legislatures to the people. The 19th
    Amendment 99 years ago gave us women's suffrage. The 23rd
    Amendment gave people here in D.C. the right to participate in
    presidential elections.
        The 24th Amendment abolished poll taxes in federal
    elections. The 26th Amendment lowered the voting age.
        Do you think--maybe start with you, Professor Sullivan--
    that the Equal Rights Amendment is in the mainstream of the
    trajectory of American constitutional development?
        Ms. Sullivan. Absolutely yes.
        Mr. Raskin. And is it something that is kind of frivolous
    and extra or is it something that is necessary and central to
    our development as a country?
        Ms. Sullivan. Necessary, central, foundational. It is 100
    years since we had the 19th Amendment placed in the
    Constitution. Before that, the Supreme Court had said there is
    no equal right of women to vote.
        It is high time, after 100 years, that the 19th Amendment,
    which was never expanded beyond its voting boundaries, the
    principle be recognized for all purposes--against all public
    discrimination by passage of the ERA.
        Mr. Raskin. Dr. Spearman, why did Nevada, after all of
    these years, decide that the Equal Rights Amendment was
    something that it needed to do?
        Ms. Spearman. Thank you for that question. Let me start by
    saying--obviously, I am African American. I am a woman. I am a
    veteran. I am an ordained minister and I am a proud member of
    the LGBTQ community.
        The discussion about equality I have been it all of my
    life--all of my life--and it has always been contentious. And
    so for me to carry the ERA and get it passed, get it ratified
    in 2017 it was simply the right thing to do.
        Every time we come to equality, we always parse words.
    Every time we are talking about someone has the same right as
    someone else, we are not talking about special rights here. We
    are talking about equal rights.
        And as I said before, the trajectory is moving in the right
    direction and it is moving in the right direction because every
    time I have been in a discussion about equality, whether it is
    about racism, whether it is about sexism, whether it is about
    homophobia, every time we always parse words about whether or
    not someone has the right to equality.
        We ratified it because it was the right thing to do.
        Mr. Raskin. Thank you.
        Ms. Arquette, let me come to you. You gave some eloquent
    testimony about rape kits and discrimination against women in
    different places.
        What do you say to those who assert that the Equal Rights
    Amendment is too far removed from the daily struggles that
    women have against sexual harassment, against sexual assault,
    against states failing to deliver the rape kits and so on?
        Is the ERA something that is actually pie in the sky that
    is removed from the daily struggles of women?
        Ms. Arquette. Well, I have to say to them that the Equal
    Rights Amendment, I think, would give us another tool to
    examine unconscious bias, I think, and sometimes, you know,
    obvious bias that we know in our country.
        It is like whack-a-mole, okay. All of a sudden you bash
    down one thing--like child marriage. The last few years some
    very fierce activists across the country have been advocating
    and working with legislators to change some laws in some states
    so that we no longer had adult males impregnating girls and
    marrying them.
        This is recent. This is very recent, okay, in the United
    States of America. But it is like whack-a-mole. I just found
    out--I do women's rights work. This is what I do.
        I just found out a couple weeks ago that women in most
    countries--I mean, not most countries--most states here in
    America, when you go to a hospital for your tonsils and you go
    under, if you are at a teaching hospital they can bring in
    medical residents who do internal vaginal exams on you while
    you are unconscious without your consent. Most states in
    America. Okay.
        So I want the Equal Rights Amendment. I want VAWA. I want
    every protection under the law to start rooting out systemic
    bias.
        Mr. Raskin. And the ERA comes within these other statutory
    protections as part of a movement for general transformation in
    this society.
        Ms. Arquette. And we need that transformation.
        Mr. Raskin. Well, I thank you for your testimony.
        Professor Foley, let me come to you. You seemed to question
    in your last remark the controlling authority and solidity of
    Coleman v. Miller, which I always taught as a key precedent for
    the proposition that the whole constitutional-amending process
    is a political question, is nonjusticiable.
        Do you know of any Supreme Court cases where the Supreme
    Court has intervened to decide either that--that either a
    procedure was unlawful or that a constitutional amendment was
    unconstitutional?
        Ms. Foley. No. But, of course, we have never had that
    opportunity arise. The closest we came was with the three-year
    extension of the ERA and that district court decision in Idaho
    v. Freeman. But because it got mooted, the three-year deadline
    expired and no additional states had ratified. We just don't
    have----
        Mr. Raskin. I just want to get the logic of your position.
    Are you saying that if the deadline were to be extended that
    this should be the first constitutional amendment in our
    history to be struck down as unconstitutional?
        Ms. Foley. Yeah, I think it could be.
        Mr. Raskin. But do you think it should be?
        Ms. Foley. That is a different question, isn't it? As----
        Mr. Raskin. That is the one I am asking, yes.
        Ms. Foley. Well, I mean, I am not a policy person and I am
    not here as someone to talk about whether the ERA is a good
    idea or a bad idea----
        Mr. Raskin. I thought it is a constitutional question. In
    other words----
        Ms. Foley. No.
        Mr. Raskin. I thought you were opining----
        Ms. Foley. Oh, I thought you were asking me, like, should
    it because it is a great idea.
        Mr. Raskin. I am sorry?
        Ms. Foley. I thought you were asking me should it be struck
    down because ERA is a great idea.
        Mr. Raskin. You seem to be invoking some of the Supreme
    Court justices who did not think that these were nonjusticiable
    political questions.
        And I guess what I am asking you is are you saying that the
    Supreme Court in the event that we were to extend the deadline
    should intervene to strike it down or if states were to adopt
    the Equal Rights Amendment to say that it is not a
    constitutional amendment and it is not part of the
    Constitution?
        Ms. Foley. Yes. I think that when it gets litigated, if you
    decide to extend the ratification deadline or if it just gets
    ratified, you know, again by one more state it will be struck
    down as an unconstitutional amendment process.
        So yes.
        Mr. Raskin. Thank you for clarifying that.
        Mr. Cohen. Ms. Scanlon. Ms. Scanlon from Pennsylvania, one
    of the great new women members to our Congress.
        Welcome.
        Ms. Scanlon. Thank you so much.
        I am so excited to be here. I mean, this is one of those a-
    ha moments for a new member in Congress. I want to show you
    this. It is a book called ``Girls Are Equal, Too'' by Dale
    Carlson.
        My mother gave me this book over 40 years ago because she
    wanted me to think about gender roles and how they impacted
    even pre-teens like myself at the time, and for that, having
    just joined the most diverse Congress in history, I am
    extremely grateful.
        I also want to share with you this pin that I am wearing. I
    wore it to the State of the Union earlier this year. It is a
    pin that was given to Alice Paul and other women who had
    chained themselves to the White House fence demanding the right
    to vote.
        It represents a jailhouse door. It was given to them when
    they were released from jail after a series of hunger strikes,
    et cetera, and after they won the right to vote.
        Now, Alice Paul, of course, wrote the Equal Rights
    Amendment first introduced in 1923, nearly a century ago. She
    also happens to have earned her Bachelor's degree from
    Swarthmore College, which is in my district.
        So I am extremely proud of that connection to Alice Paul
    and looking forward to carrying forward her work in this
    Congress.
        I would like to kind of pull back a little bit and maybe
    talk about the impact of the ERA--the potential impact of the
    ERA on girls, the girls of today.
        Ms. Sullivan, could you speak a little bit to the fact you
    noted in your testimony that every other major democracy with a
    written constitution guarantees equal rights for men and women.
        What effect do you think the U.S.'s outlier status has on
    the U.S.--on the world stage and the impact on the young women
    of today who are going to be our leaders in the future?
        Ms. Sullivan. Well, thank you.
        I think the fact that we don't have a provision for sex
    equality is shocking in 2019 and it is shocking comparatively
    when we look at the rest of the world.
        All of the rest of the industrial democracies of the world,
    every nation that adopted a written constitution, many of them
    based on ours in the aftermath of World War II, they all have
    sex equality provisions.
        Why don't we? And it speaks very loudly. The title of your
    book is wonderful. Your mother's advice was wonderful. The
    Constitution speaks to our most basic commitments. It says out
    loud in the one voice we have as we the people who is included
    as equal among the people.
        And the absence of a statement that women are the equal of
    men in our Constitution is something that is unfathomable and
    something that should be fixed.
        Ms. Scanlon. Thank you.
        Ms. Arquette, when you won the Academy Award not so long
    ago, you gave a very powerful acceptance speech about the need
    to address pay inequality for women in the U.S. and the need
    for the Equal Rights Amendment.
        Have you seen any real-world effects as a result of that
    speech?
        Ms. Arquette. Thank you for that question.
        Yes, I have seen some real-world effects. I recognized a
    problem. I was winning this award for a woman who was
    struggling to feed her two kids as the primary caretaker and
    breadwinner, and so I gave the speech and people started to
    talk about it.
        One thing that happened was Cindy Robbins and Layla Seika
    at Salesforce went in the next morning to their boss, Marc
    Benioff and they said, hey, are we being paid the same? And he
    said, yeah, I am sure we are--you guys are. And they said are
    you sure you are sure? And he said, well, I think we are--let
    us do a gender audit.
        And what he found--what they found was no, turned out they
    were paying mostly women $2 million, yes, less every year. Now,
    compound that, if that is your salary and you are having this
    huge chunk of money kept out. So they remediated that. They
    fixed that for all of their employees, and then the next year
    they did a gender wage of race also. They added race, and then
    they found, again, they had another gap and they fixed that.
        Then Marc Benioff went out to the head of Apple, Intel, The
    Gap. All these people signed on. They started doing gender
    audits and they started people--paying people fairly.
        But not only that, Senator Hannah-Beth Jackson of
    California saw it. She said--two days later she presented her
    equal pay bill on the floor. It passed. She had been trying to
    pass it for 36 years, and since then 41 states have passed
    equal pay bills. People have come up to me and they said, thank
    you--my boss gave me a check for thousands of dollars. I can't
    believe it.
        What I am talking about is magic. When you make the
    intention--when you say to the world, women are equal in
    America--the system has never corrected itself. Call it out. It
    will start to correct itself. We will start to fix things we
    have been having to deal with since the beginning of our
    country.
        Ms. Scanlon. Thank you.
        Mr. Cohen. Thank you, Ms. Scanlon.
        And I now recognize a member from Pennsylvania who is also
    a great new woman member, Ms. Dean.
        Ms. Dean. Thank you, Mr. Chairman, and thank you for
    holding this historic hearing. Like my colleague,
    Representative Scanlon, I come from Pennsylvania where we had
    no women in Congress as of the last Congress and we now have
    four women in Congress. So good things can happen in
    Pennsylvania and elsewhere.
        [Applause.]
        Ms. Dean. And like my friend, Representative Scanlon, I too
    feel like we are at an extraordinary moment. I can't believe I
    have the privilege of sitting here and raising again the ERA
    and the valuable requirement and need to do it.
        But that is met by also a paradoxical moment. How in God's
    name have we not done this yet and why would anyone want to
    stand in the way?
        So floating in my head is what is anybody afraid of? What
    is there to be fearful of if we make this enshrined in our
    Constitution that women hold the same right? And I was thinking
    about this as a mother.
        I am a mother to three grown white men. I don't worry about
    whether they are going to be treated equally. I have that
    privilege. But I have a seven-year-old granddaughter and I
    absolutely worry if she will see that everything is open to
    her, that she is equal under the law and protected under the
    law.
        And so, Ms. Sullivan, I wanted to go back to you. I am
    thinking about why are--what are--why are we here and why can't
    we just get this done.
        Back to the notion of symbolic or necessary. A lot of
    people just say, oh my gosh, it is just a symbol--oh my gosh, I
    can't believe you are still arguing about ERA.
        Can you go again about the essential nature of this?
        Ms. Sullivan. It is necessary, it is essential, and it is
    not just symbolic but let me say symbols are important.
        Ms. Dean. Yes.
        Ms. Sullivan. Our Constitution is a very important symbolic
    commitment to equality that speaks volumes. As Patricia
    Arquette says, it has a trickle-down effect into the rest of
    the private sector as well when we declare our public equality.
        But why it is needed is we never have had sex
    discrimination treated the same as other forms of
    discrimination. Under interpretations of equal protection, it
    might be allowed in ways that the ERA would help to cement.
        Second reason why it is necessary, and I want to focus on
    you, the Congress, Section 2 of the Equal Rights Amendment
    gives to you, the Congress, the power to enforce the amendment
    by appropriate legislation.
        Up until now, the Supreme Court has interpreted your power
    under the enforcement clause of the 14th Amendment and under
    the commerce clause to be quite limited in addressing sexual
    assault, sexual violence, and other unequal treatment of women.
        You would gain power to once and for all help to rectify
    patterns of discrimination that the states have failed to
    rectify and that is a very important, and I would argue,
    essential aspect of the ERA.
        Ms. Dean. Thank you. And on the issue of, oh, this will
    just grant unfettered rights to abortion, I think it is,
    obviously, a specious argument, a false argument.
        But I do come from the experience of being six and a half
    years a state legislator in the Pennsylvania House. So I would
    like to flip that abortion argument on its head and say
    wouldn't the ERA actually help us--wouldn't it actually tamp
    down the false lousy legislative proposals that we see session
    after session in many of our state legislatures that are,
    clearly, anti-abortion, they are, clearly, unconstitutional but
    we face them every single year, isn't it possible if we
    enshrine in our Constitution equal rights, then those equal
    rights under the law including Roe v. Wade and others would be
    further protected--not expanded, protected?
        Ms. Sullivan. Are you directing that to----
        Ms. Dean. Yes. I am sorry, Ms. Sullivan. Yes. Thank you.
        Ms. Sullivan. Yes. The equality of men and women--
    reproductive rights are a very important aspect of the equality
    of men and women.
        People feel divided about abortion in this country because
    people of good will on both sides have passionate commitments
    about the difficulty of the decision and no woman who ever has
    an abortion treats it as anything other than a difficult
    decision.
        But the ERA would enshrine the principle of equality. It
    would leave for another day the interpretation of whether some
    limits might be allowed as they are now or whether some limits
    go too far and impose an undue burden, as we have now.
        I do think that it distracts from the debate about equality
    to try to make those debates the focus of our attention now. It
    won't be activists in pamphlets or lawsuits who determine the
    meaning of the Equal Rights Amendment.
        It will be the Supreme Court, and the Supreme Court has had
    a balanced approach until to date. Conservative justices
    reaffirmed Roe v. Wade, the core of Roe v. Wade, when they sat
    on the court, and we will continue to have that debate.
        But it is no reason not to adopt the ERA now.
        Ms. Dean. Thank you, Mr. Chairman. I thank all the
    testifiers for coming before us.
        Mr. Cohen. And I thank the two ladies from Pennsylvania,
    who stayed within their time limit, showing great restraint.
        And now I recognize the two great ladies from Texas,
    starting with Ms. Garcia.
        Oh, I am sorry. Excuse me.
        Mr. Jordan, do you want to--you are recognized for five
    minutes.
        Mr. Jordan. Well, I--Mr. Chairman, I thank you, and I would
    like to yield to the ranking member from Louisiana.
        Mr. Johnson of Louisiana. Thank you, Mr. Jordan. Thank you,
    Mr. Chairman.
        Just real quickly on the procedure, and I am really
    grateful. We have benefitted in this subcommittee by some great
    back and forth dialogue. We have agreed it has been some of the
    most productive because we can talk with really intelligent
    people about these tough questions and this one does regard
    procedure.
        But I, of course, agree with Ms. Foley. But to show my bona
    fides as a textualist, okay, I actually do have the text of the
    Constitution and Article 5, and it says that--the phrase that
    Ms. Foley referenced, the mode of ratification may be proposed
    by the Congress, was referenced in Dillon because they were, of
    course, quoting Article 5.
        So at least--I mean, a textualist can look at that in good
    faith and say well, that speaks to the Congress having the
    ability to set a time limit, to do it in a certain way, and if
    they did it that way then it would--it would take an equal
    effort to overturn it.
        So let me ask each--Ms. Sullivan, Dr. Spearman, and Ms.
    Arquette--your personal opinion about an unrelated question.
    Some people are arguing in the Supreme Court this term, as we
    all know, that the word sex in the federal civil rights laws
    includes self-professed gender identity.
        Is it your understanding that the term sex in the ERA also
    includes self-professed gender identity and, if so or it not,
    why is that? Maybe just to each of you.
        Ms. Sullivan. The ERA will prohibit discrimination on the
    basis of sex. If there is discrimination on the basis of gender
    in the treatment of gay or lesbian or transgender people, then
    that will count as unconstitutional under the ERA just as the
    Supreme Court is about to decide whether it counts as
    unconstitutional under the equal protection clause.
        Mr. Johnson of Louisiana. What is your opinion on that,
    though?
        Ms. Sullivan. I think the proper textual reading of the
    term on account of sex does include discrimination on the basis
    of sexual orientation or transgender identity, and that is just
    a textual reading of the term on the basis of sex.
        Mr. Johnson of Louisiana. Okay. Dr. Spearman, do you agree
    with that?
        Ms. Spearman. Yes, I do. I think that when you talk about
    on the basis of sex, gender identity is a new way of saying
    this is who I am.
        But I want to go a little bit further because one of the
    other hats that I wear is that of an ordained minister and I
    belief that if--and I happen to be Christian--and I believe
    that if the founder of my faith were here today he would
    probably say something like this: It really doesn't matter
    because, remember, I said whosoever will let them.
        Mr. Johnson of Louisiana. Well, we both believe in
    redemption. I am a fellow Christian, but there is different
    interpretations on the Scripture. We will save that for another
    day. I would love to have a talk with you and talk about it.
        Ms. Arquette, do you agree?
        Ms. Arquette. Well, I am going to answer that in the only
    way that I know how. My sister, Alexis, is a transgender woman.
    I spent my whole life sharing a bathroom with her and the only
    dangerous thing about it was who was going to use the last of
    the toilet paper.
        And my sister--literally, I heard stories after she died of
    how she broke down bathroom doors to save people, to save
    people from danger.
        So I would--I love my sister. I want trans people to have
    equal rights under the law, and the highest group of kids who
    are getting raped in college are trans students.
        Mr. Johnson of Louisiana. I agree, but--reclaiming my time
    because we are almost out--but would the ERA include--the term
    sex in the ERA does that include gender identity? In your view,
    should it?
        Ms. Arquette. I would like it to, but I know that is going
    to be argued in court. I would like trans people, LGBT people,
    everyone--everyone to have equal rights under the law.
        Mr. Johnson of Louisiana. Thank you for the answer.
        Professor Foley, do you think there may be a reluctance on
    the part of the majority in this Congress to simply reissue the
    ERA to the states without any ratification deadline because
    they know that if that were done there would follow a torrent
    of litigation to answer all the dicey legal questions you
    presented in your testimony and that we have talked about
    today?
        Ms. Foley. Yeah. I mean, I think it would happen. It,
    clearly, would happen and I am pretty confident about how it
    would come out when it ultimately reaches the Supreme Court.
        If the ERA is ratified by another state and they purport
    that that ratification is valid or if this Congress extends the
    ratification deadline by simple majoritarian processes and the
    ratification of the 29th state occurs them--the 38th state--we
    are going to have a problem on our hands.
        I think the Supreme Court is going to say that is not a
    valid constitutional amendment and, by the way, that is not
    good for the country, I would assume. Nobody really wants a
    situation where you get all the energy involved in passing a
    constitutional amendment.
        It is an important issue. You go to all that time and
    trouble and it gets reversed by the Supreme Court. It is not
    good for the ERA. It is not good for those who support gender
    equality. It is not good for the country to take the country
    through that process.
        If you think this is an important enough issue, you need to
    do the process right to have it stick.
        Mr. Johnson of Louisiana. And wouldn't it set back the
    prospects for the ratification of future amendments if states
    knew that Congress could just subsequently alter the terms of
    ratification?
        Ms. Foley. Yeah. I mean, I think we get ourselves into a
    giant quagmire and we may never get ourselves out.
        Mr. Johnson of Louisiana. Thank you. I am out of time.
        Mr. Cohen. So is Mr. Jordan. [Laughter.]
        Mr. Cohen. Thank you. I recognize Ms. Garcia, an
    outstanding member from Houston, and we will be in her district
    on Friday trying to get--having a hearing on the voting rights.
        Ms. Garcia. Thank you, Mr. Chairman, and you know, for me,
    I sort of go back to back to when I was in college and remember
    still, you know, being the bright-eyed bushy-tailed student who
    believed they could change the world and one of the things I
    was going to help go do in Austin, Texas, our state capital,
    was to make sure that all those legislators passed the ERA in
    Texas.
        So I was there for that hearing and who would have thought
    then that I would be here now today at this hearing and that we
    still haven't gotten the darn thing passed.
        So, for me, it is sort of a little deja vu feeling to be
    here. But I am so glad that I am, and because the Pennsylvania
    ladies bragged, I will too, because not only am I here, I am
    also here with my friend and colleague, Veronica Escobar, who,
    together are the first two Latinas to ever be elected to the
    United States Congress from Texas.
        [Applause.]
        Ms. Garcia. So we not only have witnessed history, we are
    making history. But, unfortunately, history has not treated us
    well as women because even though, as my colleague and the
    author of the bill talked about, Abigail Adams' note of--to
    remember the ladies, obviously, they did not, and that is why
    we are here today to correct that, to make sure that the whole
    world knows, as some of the witnesses have stated, that in this
    country we do treat women equally.
        Ms. Sullivan, I wanted to start with you, and before I get
    to the question I just--I am also troubled because I have been
    involved in the feminist movement for many years, beginning as
    a law student and as a student. This whole nonsense of this
    impacting reproductive rights and this whole idea that the
    right to an abortion, it may be impacted by the ERA.
        I mean, you know, I still remember the--as a law student
    reading Roe v. Wade and Planned Parenthood and Casey cases and
    so many after that. The ERA and what we are talking about here
    today was never mentioned in any of those cases, was it?
        Ms. Sullivan. It was not.
        Ms. Garcia. And that would be because it is actually from
    really in the right to privacy under the Constitution that
    those cases were decided. So anything we do with this bill or
    any future bill on the ERA has nothing to do with the right to
    privacy?
        Ms. Sullivan. That is correct.
        Ms. Garcia. And do you recall how many times the
    Constitution uses the word woman?
        Ms. Sullivan. That would be zero.
        Ms. Garcia. Zero. [Laughter.]
        Ms. Garcia. Well, that is another reason for correcting
    things today, isn't it?
        Ms. Sullivan. Yes, it is.
        Ms. Garcia. Well, and there is an argument to be made, and
    I noted that some have said that this whole idea of the
    deadline, there is no deadline in the actual text of the bill
    that passed for the ERA, is there?
        Ms. Sullivan. There is no deadline in the text of the
    amendment.
        Ms. Garcia. Correct.
        Ms. Sullivan. And that is all that Article 5 speaks to, and
    there is no--therefore, you can change the deadline because it
    is only in the preamble.
        Ms. Garcia. Right. So is that the best answer to the
    arguments that Congress cannot just change it is in fact there
    is nothing to change because it is not in the text?
        Ms. Sullivan. It is not in the text of the amendment and to
    the extent you have the power to put it in the preamble and
    control your own procedures, what Congress makes for its own
    procedures Congress can unmake.
        And I disagree with my friend, Professor Foley, that we
    would have a lot of litigation on it because the current law is
    it is nonjusticiable, and for good reason. We don't want the
    court to decide whether amendments are valid are not because
    amendments are the only way we control the court.
        You don't want foxes to guard henhouses. You don't want the
    court to guard the process by which its own decisions can be
    overruled. And so I don't think it would be tied up in court. I
    think you have the power and a court can't strike it down if
    you exercise it.
        Ms. Garcia. Right. And didn't one case actually say that it
    was the power of Congress to do that?
        Ms. Sullivan. Absolutely.
        Ms. Garcia. Absolutely. Well, I am so glad to hear you say
    that because it seems to me that the main arguments that I keep
    hearing this morning, the relationship to abortion and that you
    can't change it--that really wasn't in text just seemed to go
    away, and I, for one have been waiting a long time since I was
    that bright-eyed bushy-tailed student.
        I may not be as bright-eyed and bushy-tailed today as a
    member of Congress but I can tell you that I am going to work
    like heck to make sure that this gets done.
        So thank you for being here today. Thank you, Mr. Chairman.
        [Applause.]
        Mr. Cohen. Thank you, and Ms. Escobar is recognized
    presently. She is another star of our freshman class.
        Ms. Escobar. Thank you, Chairman. So proud to be here with
    this room filled with history makers and advocates. I want to
    thank all of the witnesses who have come before us to testify.
        I would like to thank my colleagues, Congresswomen Speier
    and Maloney, for being such dogged advocates for what is right,
    what is good, what is just, and what is about time.
        I would like to ask the senator a question because,
    Senator, you worked so hard. I loved your description of how
    hard you worked in your state to get this done, and one of my
    colleagues, Congressman Johnson, asked a witness a little while
    ago to opine on whether there is popular support or not.
        I would like for you to opine, based on your experience in
    getting this passed in your state, why would anyone be against
    an equal rights amendment?
        Ms. Spearman. Thank you, Congresswoman.
        You know, it struck me as we were here the very fact that
    we are debating equal rights for women is, in itself, rather
    abominable considering we are considered the free nation of the
    world.
        So let me just say this. Was it difficult? Yes, it was,
    because we heard very similar arguments in Nevada. There were
    people who were afraid for some reason that it would expand
    abortion rights. There were people what were afraid that it
    would bring about some type of controversy over bathrooms.
        But the simple matter it just wore down to this. The people
    of Nevada respect, enjoy, and support equality. And so when it
    came down to the vote, some thought it was partisan.
        But at the end of the day, we knew it was about equality.
    That is all it is about. It is about equality, and I have no
    idea why in God's name this is such a big hurdle to get over.
    It is about equality.
        But then--oh, wait a minute, hold on, because I have lived
    my life in all majority populations and so when it comes to
    equality at every step of the game I have heard these same
    arguments. You know, if you--if you do this, then that will
    mean that black people can drink out of water fountains.
        If you do that--you know, all of these arguments always
    come up when we talk about equality. That is the only time it
    comes up. The people of Nevada stood with me. My colleagues in
    the Senate stood with me.
        My colleagues in the Assembly stood with me. And you know
    what? We even had a Republican governor and even though he
    didn't have to sign it he even put out a statement that he was
    for equality.
        So the people of Nevada recognized it is not about putting
    your hand in the air and seeing which way the wind blows. The
    people of Nevada recognize it is about equality, period.
        Ms. Escobar. Thank you so much, Senator.
        [Applause.]
        Ms. Escobar. And to your point, so much of this is rooted
    in fear, unfortunately, and Ms. Arquette, you and I--I had the
    privilege of having a great conversation with you recently and
    thank you, by the way, for sharing such personal stories with
    the public as a way to getting all of us to open up our eyes
    and feel some compassion.
        You have made the point over and over again about the
    economic value of equal rights, equal pay, in particular, and I
    appreciate that you have always pointed out minority women are
    paid significantly far below even white women.
        And so I would like for you to expand a little bit, please,
    if you wouldn't mind, because that conversation was so
    powerful, about the economic benefit to equal pay and equal
    rights.
        Ms. Arquette. Well, I think it is pretty crazy. If you are
    a Latina woman and you are making $0.54 compared to your white
    male colleague with the same position, you are basically paying
    a 46 percent tax--gender tax--and I don't think I could find
    one man out there where I could say, ``Hey, how about you just
    take a 46 percent gender tax? Is that cool?'' [Laughter.]
        Ms. Arquette. Nobody would accept that. I mean, there is a
    reason why we have millions more women in poverty when they are
    old. It follows you your whole life. It impacts you your whole
    life, and it cross over itself.
        Listen, if you are paying a black woman $0.61 on the
    dollar, so now she is paying the, what, 49--39 percent gender
    tax. So she may have to take on an extra job now.
        So say this woman is a single mom. Now she has to have two
    jobs to make the same amount of money she would have made that
    her male colleague made, and she is a single mom with two jobs.
        Here is one way it impacts you. Black women are less likely
    to get breast cancer but more likely to die from it, and why is
    that? When you have two jobs and you are a single mom--not that
    all black women are single moms or struggling with two jobs--
    but I am just saying in this case, to take your time off to
    take care of your sick kid, you don't have time to take off to
    get a breast--you know, breast exam--a wellness exam.
        So this is killing women. It really is killing women. When
    we have Native American women and black women dying in
    childbirth, when we have women not able to get cervical pap
    smears for completely treatable cancer, because HPV--human
    papillomavirus--80 million Americans have it.
        So when we don't--when we are closing clinics and we are
    not giving women access to health care, we are giving them a
    death sentence. We are going to let people have cancer.
        Ms. Escobar. Thank you.
        Ms. Garcia [presiding]. Thank you, Congresswoman.
        Next, we will hear from Mr. Gohmert from Texas.
        Mr. Gohmert. Thank you, and I don't know of anybody on
    either side of the aisle that feels like women should be making
    less than men. I don't know that we need a equal rights
    amendment to justify or even to--well, it should be to justify
    inequality in wages. It ought to be equal, period.
        But having heard at this hearing that sex in the equal
    rights amendment includes gender identity, which we know
    absolutely is not an immutable difference. It is a difference
    that sometimes someone feels one way, even has a sex change
    operation, later feels another way.
        Happens frequently. I have friends that have been from one
    side to another. It does create issues, and as someone who has
    sat repeatedly as a judge in sexual assault cases and I have
    heard the testimony and I have read the medical data that women
    are much more likely to suffer--who have been a victim of
    sexual assault are many times more likely to suffer from PTSD
    than male soldiers are, and there is different theories for why
    that is, and that a woman in a private area like, say--example,
    a restroom are confronted by what absolutely appears to be a
    man by all external appearances is caused to suffer that trauma
    all over again, I can't fathom wanting to see something passes
    that forces women over and over against their will in private
    areas to face men from all biological ways of determining, and
    suffering those traumas again.
        So I have grave concerns about that. Without an ERA, women
    will, hopefully, not be forced into that. With an ERA, from
    what we have heard today, they will be forced into that.
        And having lived through the debates over Obamacare and
    having seen the data indicating that when a certain size tumor
    is found in the U.K. and the United States, before Obamacare
    the U.S. person, whether poor or wealthy, had a 20 percent
    chance better of surviving than someone in the U.K., and then
    somebody that comes from a home of women, I don't want to see
    somebody die among my family simply because we adopted some
    kind of socialized medicine.
        And as someone who fled Cuba said earlier this morning in a
    meeting, you know, he went--he went--forewent the opportunity
    to have free education and free healthcare to risk--and risk
    life to get to a place where there wasn't free health care and
    free education.
        Professor Foley, some claim the ERA has wide popular
    support. If that is so, can you explain why people are pushing
    this method of reopening the ERA instead of just saying let us
    re-offer it--let us get a new time of termination and start all
    over again? Why is that, if it is so popular?
        Ms. Foley. Yeah. I mean, it is a good question. I mean, I
    don't know the answer. I can speculate. My guess is--and my
    guess is based on what the proponents are saying today--and I
    see two themes, okay, and this is from a person, again, who--
    you know, if you ask me in the abstract if I were a member of
    Congress if I would support a proposed ERA in the right
    procedural way, the answer would be yes. I am a woman, okay.
        But would I support it knowing that these sort of sub rosa
    agendas are being articulated by its proponents today, that
    would cause me to hesitate.
        Those two sub rosa goals seem to be, number one, I think
    trying to entrench abortion and give it a new constitutional
    status because there is concern that the new Supreme Court,
    which is leaning more to the right, is going to roll back some
    of the protections for abortion.
        So that concern exists. I think it is probably valid, given
    the fact that the Supreme Court has become more conservative,
    and I think what they would like to do is sort of have an ERA
    in there so that it would breathe new life into the right to
    abortion.
        Maybe not now with the current conservative court but,
    certainly, laying the seeds for the future that regulations of
    abortion, late-term abortions, things right now that are
    passing constitutional muster maybe later on wouldn't on the
    basis of that amendment. That is one possibility, and you say
    them articulate that themselves. So it is what it is.
        Second thing is I find it a little bit ironic as a woman
    that one of the other big sort of sets of proponents of the
    amendment is the LGBTQ community.
        I understand why they want it and I think you heard from
    the three members of the panel that they think that if the ERA
    was passed that the--on the basis of sex would include
    transgender and LGBT rights.
        So and I find that a little bit ironic because, remember,
    we have been historically talking about women's rights and now
    I think we are moving a little bit beyond that.
        So I think that those are the two things I think that give
    members of Congress concern.
        Mr. Gohmert. Thank you. I yield back.
        Ms. Garcia. Next is my colleague and friend from Houston,
    Congresswoman Sheila Jackson Lee.
        Ms. Jackson Lee. Thank you, Madam Chair, and my long down-
    out-the-end position on this committee is my desire to be on
    this committee and take whatever seat I could get because I
    knew the crucialness of this work.
        And I want to thank Chairman Cohen and as well I want to
    thank full committee chair Mr. Nadler and I want to thank Mr.
    Johnson, the ranking member, for recognizing that women cannot
    wait.
        In my long litany of questions, let me try to be as pointed
    and brief as I possibly can. But this brings back memories of
    the debate of the 13th Amendment and opposition can be found
    for anything.
        Who would imagine that there would be this vigorous debate
    in this fight as evidenced by history and the work of President
    Lincoln to get this nation to stand against slavery and the
    debate why we should do it.
        And so I want to be able to answer the question that was
    asked by my good friend from Texas. We begin this all over
    again. This will implode the 35 states we already have because
    now more are tuned to the arguments there will be a mountain of
    opposition, false premises, the false premise of abortion, even
    though the 9th Amendment and various cases have indicated a
    woman's right to choose, and we might not even get to the 35
    that we already have.
        So let me thank Congresswoman Speier, whose language is
    very clear, stating that notwithstanding any time limit
    contained in the original ERA, the ERA shall be valid to all
    intents and purposes when ratified by the legislature of three-
    fourths of the states. Very simple.
        And my good friend, Carolyn Maloney, who I have stood by
    all these years, equality of rights under law shall not be
    denied or abridged. Simple language that speaks to the
    necessity of justice.
        Let me remind my good friend, Carolyn Maloney, as I go to
    my questions very quickly that we went to Afghanistan and we
    helped them write their constitution.
        Many women from this country went and they wrote in that
    constitution, that war-torn nation, though we have many more
    miles to travel, the rights of women and we are still fighting
    for it in the United States.
        I want to go to Professor Sullivan again and tell me--we
    have the 14th Amendment--and my time is short--why do we need
    an ERA? I want it to be, again, restated. That is, of course,
    the equal process--equal rights under the law. Why do we need
    the ERA?
        Ms. Sullivan. The 14th Amendment protects all of us
    equally. But the ERA would protect specifically against sex
    discrimination.
        Sex discrimination has its own history and its history is
    parallel to in many ways and different in other ways from the
    history of race discrimination in our country.
        Nobody ever--sometimes people said women were placed on a
    pedestal that became a cage when we were protected out of being
    lawyers or bartenders or sitting on juries or voting. But
    nobody ever confused a pedestal with an auction block on which
    people were sold as chattel.
        So it does honor to our history. The origins of the 14th
    Amendment expressed our most basic commitment that race
    discrimination was to ever be ended in America.
        But we must also state that sex discrimination is to
    forever be ended in America and we must state it explicitly and
    not just do it by analogy to erase discrimination.
        Ms. Jackson Lee. Let me ask--thank you so very much,
    Senator Spearman, and thank you for your leadership. I will
    convey your regards to my dear friend, a council member in
    Houston.
        And then to Ms. Patricia Arquette, I want to get my
    questions on the record so that you can ask and they can be
    answered.
        But to Senator Spearman, I imagine you received any manner
    of threats and accusations as well as distorted opposition.
        Give us just a snippet--you may have done so already--again
    about the possibility of opening this up again, as my good
    friend from Florida, Professor, and I hope that in this hearing
    we have convinced her that the idea of any reopening would be a
    dastardly act as it relates to moving toward our ultimate
    agenda.
        And to Ms. Arquette, thank you for your passionate
    statement. I am a breast cancer survivor. I am well aware of
    the plight of African-American women and all women and,
    frankly, the Equal Rights Amendment.
        I would like to hear from you as to isn't it about time for
    us to achieve that place of equality? Senator, please.
        Ms. Spearman. Thank you, Ms. Jackson Lee.
        The opposition that we had in Nevada was very, very similar
    to the opposition that I heard when I was in high school. The
    only difference was it has just a little bit more seasoning.
        There were people who were continuing to say that this
    would have something to do with women in combat and women were
    already in combat. There were people that said--one lady even
    came to the stand and said, if we pass the ERA--if we pass the
    ERA then that will allow women to marry the Eiffel Tower. I lie
    to you not. Go back and check the record. Women to marry the
    Eiffel Tower.
        And so passing the ERA--when we get this close--when we get
    this close, the only thing to fear is fear itself. That is the
    only thing to fear. And as I said before, you know, I find it
    laughable if it weren't so tragic.
        People who are born in privilege always debate whether or
    not those of us who were not deserve equality. And so what we
    are talking about here----
        [Applause.]
        Ms. Spearman. What we are talking about here is the fact
    that equality is not debatable. We are born with it. The only
    thing we are asking of the ERA is to acknowledge the fact that
    women are born equal to men.
        And if you are born in privilege you have no idea what I am
    talking about.
        Ms. Jackson Lee. Thank you so very much Mr. Chairman----
        [Applause.]
        Ms. Jackson Lee. Would you ask unanimous consent for Ms.
    Arquette to at least finish my answer? I will not ask her a
    question. I have already done so. But I also thanked you in
    your absence. I just want to make sure you know how much I
    appreciate this hearing.
        Would you--may I please? Thank you.
        Mr. Cohen [presiding]. Thank you. And while I would like to
    be a director and say ``Cut'' I ask you to just be brief in
    your response.
        Ms. Jackson Lee. Thank you, Mr. Chairman.
        Ms. Arquette. Let us face it. People didn't want to give
    women equal rights in the 1870s when there were no abortion
    laws. They didn't want to give women equal rights in the 1980s
    when we already had abortion laws, and you don't want to give
    them to us now in 2019 when we already have abortion laws
    protecting us.
        So you just really don't want to give us equal rights. That
    is really what it comes down to. There are these fears and do
    you know how scary it is to be a woman in the United States of
    America?
        You are scared someone might go to the bathroom? Women are
    being raped everywhere. Kids are being raped on school buses.
    People are being raped in institutions of God--houses of God.
        Stop. We can no longer be held back. We need equal rights.
        [Applause.]
        Mr. Cohen. That is a wrap.
        [Laughter.]
        Mr. Cohen. I now move to enter into the record a letter
    from the American Association of the University of Women and a
    letter and related materials from Helene Swanson on behalf of
    the organization of Katrina's Dream.
        Without objection, that will be done.
        [The information follows:]

                       MR. COHEN FOR THE OFFICIAL RECORD

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        Mr. Cohen. This concludes----
        Ms. Jackson Lee. Mr. Chairman?
        Mr. Cohen. Yes, ma'am.
        Ms. Jackson Lee. May I submit into the record and ask
    unanimous consent to send into the record a document ``ERA--
    Equal Rights Amendment: Frequently Asked Questions?'' I would
    ask unanimous consent to put it in, which lists the 15 states
    that did not ratify.
        Mr. Cohen. Without objection, it shall be done.
        [The information follows:]

                    MS. JACKSON LEE FOR THE OFFICIAL RECORD

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        Mr. Cohen. And this has been an historic hearing. I have
    reflected--when I started my political career which was about
    1970, ERA was an issue. It is still an issue.
        The moral arc of the universe turns towards justice. Slow,
    but it goes in the direction of justice, Dr. King. So many
    great witnesses. I thank each of you. I thank our two congress
    people for bringing the legislation and for being part of this.
        But the panel was phenomenal, all four of you. I thank you
    for your testimony. And I just have to reflect again on Heidi
    Schreck. I attended that play. It is a great play and everybody
    should see it.
        It was very emotional to me to see the ERA mentioned and
    how women for so many years have not been a part of the
    Constitution and have suffered because of it and the need to
    change our laws.
        So with all that, this concludes our hearing.
        [Whereupon, at 12:14 p.m., the subcommittee was adjourned.]

                                    APPENDIX

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