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

                         EQUAL RIGHTS AMENDMENT



                               before the

                          SUBCOMMITTEE ON THE

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES


                             FIRST SESSION


                             APRIL 30, 2019


                           Serial No. 116-16


         Printed for the use of the Committee on the Judiciary

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

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
KAREN BASS, California               JIM JORDAN, Ohio
CEDRIC L. RICHMOND, Louisiana        KEN BUCK, Colorado
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
MADELEINE DEAN, Pennsylvania

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


                     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

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


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


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


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 
    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 
    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 
    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.
    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 
    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. 
    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 
    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 
    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, 
    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.



    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 
    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 
    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:]
    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. 
    Mr. Cohen. I now recognize the gracious Congresswoman, 
Congresswoman 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 
    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 
    And I really want to say----
    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 
    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 
    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:]
    Mr. Cohen. Thank you so much to each of our congresswomen. 
We thank you for your work and thank you for being our first 
    We will now have our second panel come up and be 
    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 
    And Ms. Sullivan--Dean Sullivan, you are recognized for 
five minutes.



    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 
    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 
    Why is it not enough that sex discrimination has been 
shoehorned into the equal protection clause through judicial 
    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 
    Thank you very much.
    [The statement of Ms. Sullivan follows:]
    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.


    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 
    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 
    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 
    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 
    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 
    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:]
    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 
    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 
    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 
    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:]
    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.


    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.
    [The statement of Ms. Arquette follows:]

      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 
    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 
    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 
    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 
    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,'' 
    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,'' 
    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 
    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. 
    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 
    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 
    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 
    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.
    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, 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.
    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 
    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 
    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 
    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 
    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.
    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 
    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 
    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 
    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 
    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, 
    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 
    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 
    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 
    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.
    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 
    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 
    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.
    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 
    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.
    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 
    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 
    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 
    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 
    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 
    And then to Ms. Patricia Arquette, I want to get my 
questions on the record so that you can ask and they can be 
    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 
    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----
    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----
    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 
    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.
    Mr. Cohen. That is a wrap.
    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. 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:]




    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.]