[Senate Hearing 118-30]
[From the U.S. Government Publishing Office]
S. Hrg. 118-30
THE EQUAL RIGHTS AMENDMENT:
HOW CONGRESS CAN RECOGNIZE RATIFICATION
AND ENSHRINE EQUALITY IN OUR CONSTITUTION
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
FEBRUARY 28, 2023
__________
Serial No. J-118-4
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
52-251 WASHINGTON : 2025
COMMITTEE ON THE JUDICIARY
RICHARD J. DURBIN, Illinois, Chair
DIANNE FEINSTEIN, California LINDSEY O. GRAHAM, South Carolina,
SHELDON WHITEHOUSE, Rhode Island Ranking Member
AMY KLOBUCHAR, Minnesota CHARLES E. GRASSLEY, Iowa
CHRISTOPHER A. COONS, Delaware JOHN CORNYN, Texas
RICHARD BLUMENTHAL, Connecticut MICHAEL S. LEE, Utah
MAZIE K. HIRONO, Hawaii TED CRUZ, Texas
CORY A. BOOKER, New Jersey JOSH HAWLEY, Missouri
ALEX PADILLA, California TOM COTTON, Arkansas
JON OSSOFF, Georgia JOHN KENNEDY, Louisiana
PETER WELCH, Vermont THOM TILLIS, North Carolina
MARSHA BLACKBURN, Tennessee
Joseph Zogby, Chief Counsel and Staff Director
Katherine Nikas, Republican Chief Counsel and Staff Director
C O N T E N T S
----------
OPENING STATEMENTS
Page
Durbin, Hon. Richard J........................................... 1
Graham, Hon. Lindsey O........................................... 3
Feinstein, Hon. Dianne, prepared statement....................... 43
WITNESSES
Cardin, Hon. Benjamin L., U.S. Senator from Maryland............. 3
Murkowski, Hon. Lisa, U.S. Senator from Alaska................... 6
Hyde-Smith, Hon. Cindy, U.S. Senator from Mississippi............ 5
Braceras, Jennifer C............................................. 11
Prepared statement........................................... 45
Questions submitted.......................................... 50
Letter submitted in lieu of responses........................ 55
Foley, Elizabeth Price........................................... 14
Prepared statement........................................... 57
Responses to written questions............................... 74
Stratton, Hon. Juliana........................................... 9
Prepared statement........................................... 96
Responses to written questions............................... 98
Sullivan, Kathleen M............................................. 16
Prepared statement........................................... 100
Responses to written questions............................... 105
Williams, Thursday............................................... 12
Prepared statement........................................... 110
Responses to written questions............................... 113
APPENDIX
Items submitted for the record................................... 41
THE EQUAL RIGHTS AMENDMENT:
HOW CONGRESS CAN RECOGNIZE RATIFICATION
AND ENSHRINE EQUALITY IN OUR CONSTITUTION
----------
TUESDAY, FEBRUARY 28, 2023
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice at 10:01 a.m., in
Room 106, Dirksen Senate Office Building, Hon. Richard J.
Durbin, Chair of the Committee, presiding.
Present: Senators Durbin [presiding], Whitehouse,
Klobuchar, Blumenthal, Hirono, Booker, Padilla, Ossoff, Welch,
Graham, Grassley, Cornyn, Lee, Cruz, Hawley, Cotton, and
Kennedy.
Also present: Senators Cardin, Hyde-Smith, and Murkowski.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Chair Durbin. This meeting of the Senate Judiciary
Committee will come to order.
[Gavel is tapped three times.]
[Pause.]
[Gavel is tapped three times.]
Chair Durbin. This meeting of the Senate Judiciary
Committee will come to order. Well, it was a long time ago,
many years, I was a young lawyer on my first assignment, new
graduate of Georgetown Law School. I returned home to my home
State of Illinois where I was working in the Illinois State
Senate for the Lieutenant Governor Paul Simon. At the time, the
lawmakers in my State were considering the ratification of a
constitutional amendment that was first introduced many years
before, in 1923. It was called the Equal Rights Amendment.
Well, here we are, a century after its first introduction,
2023, and here I am nearly 50 years after I started that first
assignment. It's time to get the job done. In fact, it's long
overdue.
Today, this Committee is holding a hearing on finally--
finally, enshrining the Equal Rights Amendment into the
Constitution. I want to start with a video----
[Applause.]
Chair Durbin. Thank you. I want to start with a video which
gives us a little insight into the history of this issue.
[Video is presented.]
Chair Durbin. I apologize for the audio. We'll try to make
that a little better the next time, but we didn't want anyone
to miss any words. The principle of equal justice under the law
is fundamental to who we are as a Nation. But unless that
principle is protected in our Constitution, it is nothing more
than words. For 100 years, Americans have been fighting to
enshrine equality in our Constitution with the Equal Rights
Amendment--100 years.
In the half-century since Congress approved the ERA, 38
States have ratified it. That's the exact number of States
needed to certify the ERA as the Twenty-Eighth Amendment to the
Constitution. So why the holdup? When Congress first approved
the ERA in 1972, it imposed an arbitrary time limit on the
ratification process. But that was more than 50 years ago. In
the decades since, as I mentioned, the Amendment has crossed
the 38-State threshold with Virginia becoming the most recent
State to approve it in 2020. Think of it this way: If not for
Congress standing in the way, the ERA would already be on the
books. So it's time to clear the path for equality.
The joint resolution we're considering today will repeal
that arbitrary deadline in the preamble of this resolution once
and for all. There is no room for uncertainty when it comes to
protecting equal rights under the law. Sadly, that lesson was
driven home last year by the Supreme Court's decision to
overturn Roe v. Wade and--for the first time in history--to
take away a constitutional right from every woman in America.
For years, we've heard well-known arguments against the
ERA. I remember the single-sex bathroom argument of many years
ago. Some have argued that it's not necessary. Others have
argued it's dangerous. Others have claimed that the ERA and the
Fourteenth Amendment are redundant.
The reality is that the Supreme Court, which at the time
was made up entirely of male Justices, established a lower
level of scrutiny for sex discrimination claims under the
Fourteenth Amendment. The ERA would finally change this.
When we have a conservative super majority on the Supreme
Court who believe the meaning of the Fourteenth Amendment was
set in stone when it was ratified at 1868, the ERA is far from
redundant. When a sitting judge--Justice on the Supreme Court,
Clarence Thomas, argues that the Court should reconsider
constitutional protections for family planning and birth
control, protections the Court recognized under the Fourteenth
Amendment nearly 60 years ago, the ERA is far from redundant,
far from unnecessary.
So now, the question for Members of this Committee is
straightforward. What kind of America do we want to leave our
daughters and granddaughters? A country in which their
fundamental rights are safe and secure? Or one in which the
Constitution continues to fail to recognize fundamental
equality on the basis of sex? As a father and a grandfather, I
think the answer is obvious. Let's live up to the promise of
equal justice under the law.
Join us in supporting this resolution to revoke the
deadline on the ERA's ratification. There is no time limit on
equality. With that, I'll turn to the Ranking Member Lindsey
Graham for his opening statement.
OPENING STATEMENT OF HON. LINDSEY O. GRAHAM,
A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA
Senator Graham. Thank you, Mr. Chairman. Well, this is a
hearing--this has a political agenda, which is okay. We're a
political body. I have absolutely no problem talking about
political things. Everybody's entitled to their causes.
Everybody in America can push as hard as they like, but you got
to look at the facts. So in 1972, the Congress, as you said,
Mr. Chairman, by two-thirds vote, put in motion the
ratification of the Equal Rights Amendment, as drafted in 1972,
for a 7-year period.
Apparently, during that time period, they fell 3 votes
short of 38. And this is what Justice Ginsburg said: ``The ERA
fell three States short of ratification. I hope someday it will
be put back in the political hopper, starting over again,
collecting the necessary number of States to ratify it.''
So that's what she said. Now, there was an extension by
majority of vote from 1979 to 1982, which you referred to, to
give three more years to try to make up the shortfall. That
didn't happen. But what did happen, five States who had
previously ratified the Amendment rescinded it: Kentucky,
Idaho, Nebraska, Tennessee, and South Dakota.
So, from the time period in question, the support for the
Amendment went backward. And this resolution before us is
pretty simple. It says there will be no time limit to ratify
the Equal Rights Amendment, but it also acknowledges that the
Equal Rights Amendment is part of our Constitution. Well,
that's what disturbs me the most because it never received 38
States during the time period in question.
In Dillon v. Gloss, the Supreme Court concluded that
Congress has the power to set time limits on when the Amendment
must be ratified. So it's gone to the Supreme Court. You lost
there. It never got 38 votes before 1982. There's been an
effort to 1982 to add to the vote total. You didn't mention
that five States rescinded. So it's never gotten 38 votes if
you count rescinding by 5 States. And I think it'll be pretty
obvious why five States rescinded when you look at the
potential effect of this Amendment.
So we will have this debate, and I think we're going to
have a vote on the floor. I think Senator Schumer promised a
cloture vote. I think it will fall well short of the 60 votes
necessary. And I'll be glad to talk about the reasons why, but
thank you for the hearing.
Chair Durbin. Thank you, Senator Graham. Today, we welcome
three Members of Congress to testify before the Committee on
the Equal Rights Amendment: Senator Ben Cardin of Maryland,
Senator Lisa Murkowski of Alaska, and Senator Hyde-Smith of
Mississippi. Senators Cardin and Murkowski have co-led the
bipartisan Joint Resolution to affirm ratification of the ERA
by removing the arbitrary deadline in its preamble. Senator
Cardin, could you please proceed with your statement?
STATEMENT OF HON. BENJAMIN L. CARDIN,
A U.S. SENATOR FROM THE STATE OF MARYLAND
Senator Cardin. Well, first, thank you, Chairman Durbin.
And I also want to thank Ranking Member Graham for the courtesy
of being able to testify on this bill. And thank you for
holding this hearing.
I do want to acknowledge the extraordinary leadership of
Senator Murkowski on this issue, maintaining the bipartisan
support for the Equal Rights Amendment, which we saw from its
inception. This is not about any one issue, but it's about
putting in our Constitution a lens of equality in judging the
actions of our States and laws of our country.
Senate Joint Resolution 4 simply states--and you put this
in the video, but I want to repeat it because it's pretty
straightforward--``Equality of rights under the law shall not
be denied or abridged by the United States or any State on the
count of sex.'' Quite frankly, most Americans already believe
this is in our Constitution, but Congress needs to complete the
job and remove any ambiguity. Thirty-eight States have ratified
the Amendment. That's the prerequisite number, three-quarters
of the States of our Nation.
Article V of the Constitution puts no time limits on the
amount of time necessary for ratification. And I point out that
the Twenty-Seventh Amendment of our Constitution was part of
the original Bill of Rights proposed in 1791 and ultimately
ratified in 1992--over 200 years later--dealing with the
congressional pay issue. Congress established a time limit for
ratification. We're unclear of the effect on that. Congress has
the authority to remove that time limit.
Senate Joint Resolution 4 does exactly that. The precedent
for Congress to declare that a requisite number of States that
ratified a constitutional amendment, as the House and Senate
did this in 1992 by the resolution affirming the validity of
the Twenty-Seventh Amendment.
So this is not the first time we see in a resolution the
acknowledgment that the prerequisite number of States have
ratified the constitutional amendment. And as you point out,
there should be no time limit on equality.
It is needed to advance equality in the fields of workforce
and pay, sexual harassment and violence, protection for the
LGBTQ+ community, and so many other areas where this particular
provision would provide a strict standard for the courts to
apply in regards to laws and governmental policies. The Equal
Rights Amendment is all about equality, the most fundamental of
American values.
One hundred years ago, women received the right to vote,
and it's been a 100-year struggle to put the Equal Rights
Amendment in the Constitution. America's strength is in its
values. Mr. Chairman, I would point out that 85 percent of the
countries in the world have some form of an Equal Rights
Amendment in their constitution, and most of our States have
some provision against discrimination based upon sex.
The U.S. is the only industrial democracy that does not
have a protection in their Constitution against discrimination
based upon sex. The ERA is important for us to pay us in
regards to our own protections, but also for America's
leadership on our basic values. We got to take care of our work
at home first.
So on behalf of my wife, on behalf of my two
granddaughters, and my daughter, and all Americans, let us do
what's right to put equality in our Constitution to take a
major step forward. Thank you, Mr. Chairman.
[Applause.]
Chair Durbin. Thank you, Senator Cardin. Senator Hyde-
Smith.
STATEMENT OF HON. CINDY HYDE-SMITH,
A U.S. SENATOR FROM THE STATE OF MISSISSIPPI
Senator Hyde-Smith. Good morning, Chairman Durbin and
Ranking Member Graham, and colleagues. I sure appreciate this
opportunity very, very much, and I'm honored to be here this
morning to discuss the Equal Rights Amendment, the
unconstitutional and deeply misguided effort to resurrect a
proposed constitutional amendment that expired over 40 years
ago. The Equal Rights Amendment proposes to add very vague
language to the U.S. Constitution to ensure equality between
the sexes.
However, the ERA won't do that. In fact, it would do the
exact opposite and instead harm the very woman it intends to
protect.
Since 1972, the year that the Equal Rights Amendment was
sent to the States for potential ratification, women's rights
have advanced by leaps and bounds. Good things came out of
this.
Today, every State has elected women to represent them in
Washington, and Congress has a record number of women. That
includes me, the very first woman to represent Mississippi in
Congress.
Women are already protected from discrimination under the
law through the Fourteenth Amendment to the Constitution, which
ensures equal protection under the law.
Women's rights are also protected by the Equal Pay Act of
1963, the Title VII of the Civil Rights Act of 1964, the Title
IX of the Education Amendment of 1972, the Pregnancy
Discrimination Act of 1978, and more.
The Equal Rights Amendment would only muddy the waters.
Because of its vague language, it would work to undo many of
these great achievements, and it does not allow for any
distinction between men and women, even when it would make
sense to do so based on biological differences.
I'm particularly concerned about the privacy and the safety
for women and girls that the Equal Rights Amendment would
destroy: Locker rooms, prisons, hospital rooms, domestic
violence shelters, and restrooms would allow men into areas
where women should feel safe and protected and have privacy.
Advocates of the ERA are also no longer shy about their
goal to use ERA to impose unrestricted abortion on demand up to
the moment of birth across the Nation and to enforce taxpayers
to pay for this. Their apparent goal is to use ERA to overturn
the Dobbs decision that returned the issue of abortion to the
legislative process and instead re-empower unelected judges to
impose a radical abortion policy that is in line with China and
North Korea.
Even the most modest pro-life protections, like waiting
periods, parental involvement laws, and restrictions on late-
term abortions or partial-birth abortions, when the babies
really feel this pain, could be struck down by the ERA.
Beyond the problematic content in the Amendment, all
Senators should be offended of the blatant disrespect for the
legislative process with this effort to resurrect this long-
expired Amendment. The legitimate constitutional role of
Congress in the constitutional amendment process ended when
Congress submitted the Equal Rights Amendments to the States on
March the 22nd, 1972.
In Idaho v. Freeman, Federal District Judge Marion
Callister held that Article V does not permit Congress to
extend a ratification deadline, writing that once the proposal
is made, Congress is not at liberty to change it. As Ruth Bader
Ginsburg, a long proponent of the Equal Rights Amendment said
in 2020: ``I would like to see a new beginning. I'd like it to
start over.''
Congress has no power to go back in time and resurrect an
expired constitutional amendment like the ERA. Under Article V,
however, Congress may again propose the same or modified
language addressing the same subject and try to approve a new
joint resolution with the required two-thirds votes in each
House of Congress. The 1972 Equal Rights Amendment would harm
the rights of women and weaken the United States Constitution.
I call on my colleagues to reject this unconstitutional and
misguided effort. Thank you, Mr. Chairman.
[Applause.]
Chair Durbin. Thank you, Senator Hyde-Smith. Senator
Murkowski.
STATEMENT OF HON. LISA MURKOWSKI,
A U.S. SENATOR FROM THE STATE OF ALASKA
Senator Murkowski. Thank you, Chairman Durbin, to Ranking
Member Graham, to Members of the Committee. It is good to be
here today to testify about this ERA resolution, a resolution
that Senator Cardin and I have introduced for three Congresses
now. Three Congresses, we have introduced the same language to
put before colleagues here. I want to thank Senator Cardin for
his leadership in advocating for equal rights for women year
over year over year.
And I really am glad that we're able to get before the
Committee here today. At least since I've been working on this
issue, I think there's been a surprising lack of attention by
the Senate on this. In fact, as I talk to so many people, they
say, ``Well, we thought that the Equal Rights Amendment had
already been adopted.'' They actually believe that we've taken
care of.
I'm going to speak quickly on our Resolution's contents and
some of the process issues, but I'd like to spend most of my
time talking about why the Resolution is important and why the
Equal Rights Amendment is still needed.
I think you, Mr. Chairman, have outlined much of the
process here, and Senator Cardin has spoken to the very clear
and, I think, very, very direct language that is included
within the Equal Rights Amendment. It is not convoluted. It is
not vague. It is very clear that what we're talking about is
advocating equal rights for women under the law.
S.J. Res. 4 removes the deadline for ratification by the
States. It clears the hurdle for the Archivist to publish and
certify the ERA. It also affirms that the ERA has been ratified
by three-fourths of the States after Virginia became the 38th
State to ratify the Amendment back in 2020.
And I know that there is debate about the authority of
Congress to remove that deadline. It's been noted by Senator
Graham whether or not that the ERA has been ratified by the 38
States given later rescission by five of them.
What we are trying to do with this resolution, some may
say, is a little novel, but what we're trying to say here is
what has happened in the States should not die here in the
Senate. The fact is there's no law, there's no Supreme Court
precedent that says that our resolution is somehow
unconstitutional or something that Congress cannot do.
So, putting aside all that, I do look forward to what the
Committee will hear in this next panel about these issues. But
I would like to just give a few statistics in terms of why I
think the Equal Rights Amendment is still needed, why it is not
redundant.
According to the 2020 Census, women are about half--50.5
percent--of the U.S. population. Compare this to the makeup of
the Senate, 25 percent of us are women. As Senator Hyde-Smith
has noted, that's a record number. A record 128 women are
serving in the House, but this is still only 29 percent of the
Chamber's total. I don't think we're there yet. I'm not
satisfied with that.
This Committee--you've been very active in processing
judicial nominations, so just look at the nominations for the
Federal bench: 38 percent of active district court judges are
women; 66 of 170 active circuit court judges are women. That's
39 percent.
So we're making some progress. We're making some progress,
that's good. Is it good enough? It shouldn't be good enough.
In the private sector, only about 10 percent of Fortune 500
companies have women CEOs, and this is the first time in
history a double-digit number has been reached.
Notably and significantly, in 2021, women earned about 82
cents for every dollar men earned, certainly less than that in
many States. Peeling back the layers of the onion, the gender
pay gap was even greater for full-time female managers, who
earned an estimated 77 cents for every dollar earned by full-
time male managers.
Now, we know--we know that things have improved over the
years, but we still have a long way to go when it comes to
achieving equality for women. And I think that we need the
Equal Rights Amendment to get there.
I'm very proud of the fact that in Alaska, we ratified the
ERA in 1972, the same year that it passed the House and the
Senate and was signed by President Carter. A few months later,
Alaskans amended the State constitution to prohibit
discrimination based on sex.
Mr. Chairman, women should have equal treatment to men
under the law, and Congress should do all that it can to ensure
that the ERA is finally made part of the Constitution. I think
it's long overdue.
Senator Graham has mentioned that he's looking forward to
the debate here to have a discussion about the potential effect
of this resolution. I would suggest to you that the potential
effect of this resolution is to ensure equal treatment under
the law for women in this country. Thank you. I thank the
Committee.
[Applause.]
[Gavel is tapped twice.]
Chair Durbin. It's a little late for me to bring this up,
but I'm going to anyway----
[Laughter.]
Chair Durbin [continuing]. I ask those who are our guests
here today and members of the audience to refrain from any type
of interruption of the proceeding if they can, on both sides.
I thank everybody who's here for attending, but we're going
to try to keep this at a certain centrist level of this debate
for fairness on both sides. Let me thank my colleagues for
coming.
Senator Cardin, Senator Hyde-Smith, Senator Murkowski, we
know you have a busy schedule, but we think your contribution
to this conversation on the Equal Rights Amendment is historic
and important. Thank you for joining us.
We're now going to bring the second panel to the Committee.
We welcome five witnesses. I will introduce the Majority
witnesses and turn to Ranking Member Graham to introduce the
Minority witnesses.
We have a slight change in the program. Our first witness
is going to be Illinois Lieutenant Governor Juliana Stratton,
who serves as my State's 48th Lieutenant Governor. She
previously served as a member of the Illinois House of
Representatives where she worked to ratify the ERA in Illinois.
Lieutenant Governor Stratton is joining us remotely because,
unfortunately, we learned this morning she tested positive for
COVID-19. I'm grateful she's still able to participate.
We also are joined by Thursday Williams. Ms. Williams is a
board member of the ERA Coalition and a former cast member of a
Broadway show, ``What the Constitution Means to Me.''
Our final Majority witness is Kathleen Sullivan, currently
serving as senior counsel at Quinn Emanuel and previously
served as dean of the Stanford Law School. Let me turn to
Ranking Member Graham to introduce his witnesses.
Senator Graham. Thank you, Mr. Chairman. We have Ms.
Elizabeth Foley. Professor Foley is a tenured professor and
teaches constitutional law, civil procedure, and healthcare law
at Florida International University College of Law. She went to
University of Tennessee to get her J.D. and Harvard for her
masters. She is of counsel at BakerHostetler, where her
practice focuses on jurisdiction, separation of powers,
appellate practice. She's a frequent media commentator, has
published three books on constitutional law, has authored and
co-authored numerous amicus briefs before the U.S. Supreme
Court.
She serves on the Florida Advisory Committee of the United
States Commission on Civil Rights, on the editorial board of
the Cato Supreme Court Review, and the research advisory board
of the James Madison Institute. She is also a member of the
American Health Law Association and the American Bar
Association. She previously served as member of the Committee
on Embryonic Stem Cell Guidelines at the Institute of Medicine,
National Academy of Sciences, was Fulbright Scholar at the
College of Law at the National University of Ireland.
Ms. Jennifer Braceras is a lawyer, columnist, political
analyst. She is a graduate of Harvard Law School. She was an
editor on the Law Review at Harvard. She is director of the
Independent Women's Law Center, a project of the Independent
Woman's Forum. The organization defends free speech, due
process, educational freedom, and the continued legal relevance
of biological sex.
Ms. Braceras is an expert on Title IX of the Education
Amendment of 1972. She has also been widely published by
numerous networks and previously taught courses on civil
rights, constitutional law at Boston College Law School and
Suffolk University Law School. She's a former member of the
United States Commission on Civil Rights and former trustee of
the University of Massachusetts. Thank you.
Chair Durbin. Thank you very much, Senator Graham. Let me
lay out the mechanics for the hearing. After I swear in the
witnesses, each witness will have 5 minutes to provide an
opening statement. And then, a round of questions--each Senator
has 5 minutes to ask questions. And I ask all to try to remain
within their allotted time.
So I'd ask those who are physically present to approach the
witness table and stay standing for just one moment while I
administer the oath. And I hope Lieutenant Governor Stratton is
remotely joining us and she will join in this oath-taking. If
you please raise your right hand.
[Witnesses are sworn in.]
Chair Durbin. Let the record reflect that all of the
witnesses have answered in the affirmative. And I'm going to
first defer to Lieutenant Governor Stratton for her opening
statement. Let's hope that this is working. Lieutenant
Governor, are you with us?
STATEMENT OF HON. JULIANA STRATTON, LIEUTENANT GOVERNOR, STATE
OF ILLINOIS, SPRINGFIELD, ILLINOIS
Lieutenant Governor Stratton. Good morning. And thank you,
Chairman Durbin, Ranking Member Graham, and the distinguished
Members of the Senate Judiciary Committee for the opportunity
to testify before you virtually today.
My name is Juliana Stratton. I am the Lieutenant Governor
of the great State of Illinois. I am the mother of four
daughters, and I use she/her pronouns.
I am honored to be here today on this final day of Black
History Month and on the eve of Women's History Month to do my
part in a fight that started long before me.
I stand upon the shoulders of women like Sojourner Truth
and Ida B. Wells, Fannie Lou Hamer, and so many others who
paved the way for the rights of all women. They sacrificed so
much to push us forward, and yet we still live in a country
that does not guarantee we should be protected from
discrimination in the Constitution. An explicit assertion that
we are all equals is still missing despite the women lawmakers
across the Nation who stood up to finish the work our
Foremothers started.
In May 2018, I was one of those women. As a State
representative, I joined a bipartisan vote for Illinois to
ratify the Equal Rights Amendment. I made it clear to my
colleagues in the Illinois House that gender equality and
racial equality are not a zero-sum game, that we are all lifted
up when everyone's rights are protected. We live with the stark
reality that despite being the most educated demographic in the
United States, Black women are only paid 64 cents for every
dollar paid to white men.
There should be stronger remedies to make sure women, all
women, are paid an equal wage based on their abilities and
qualifications and without discrimination based on sex. These
protections will be of particular significance to women of
color who face more workplace discrimination than their white
counterparts.
And despite impressive recovery efforts, the COVID-19
pandemic has deepened economic disparities that have already
harmed women for generations. The recovery for jobs
traditionally held by women have lagged woefully behind the
jobs often worked by men.
Also, women are twice as likely as men to work in low-
paying occupations, and this rate is even higher for Black
women and Latinas.
On top of this, we are seeing the eroding of women's rights
and their ability to determine what is best for their futures.
Recent events have shown us all too well how easily decades of
progress can be erased when our rights are not guaranteed by
the Constitution.
Every parent wants their child to have a better life. And
that was certainly true for my late mother, Velma, who spent
every day doing what she could to ensure doors of opportunity
were open to me and her four children.
And now, I have a responsibility to my daughters, Tyler,
Cassidy, Ryan, and Mackenzie, to honor my mother's legacy and
ensure they can go even farther on this journey toward equality
and justice--not just for them, but for young women and girls
everywhere who deserve nothing less.
Make no mistake, should the ERA pass, it will not guarantee
that women will be treated equally overnight. We all know, for
example, that the struggle continues for racial justice and
equal rights for Black people and other people of color under
the Fourteenth Amendment. And women will also need to remain
vigilant.
We need a firm foundation for equality that is long
overdue. Finishing this work is as important as ever to
acknowledge the rights that women, who make up over half the
population, so deserve.
So I urge Congress when taking action to consider your
mothers, your daughters, and the women in your districts. It's
time to make real a vision 100 years in the making so that our
daughters and our granddaughters and the next generation of
women are seen as exactly who they are: equals. Thank you.
[The prepared statement of Lieutenant Governor Stratton
appears as a submission for the record.]
Chair Durbin. Thank you, Lieutenant Governor. Our next
witness, help me pronounce your name--Braceras? Correct? Ms.
Jennifer Braceras, please proceed.
Ms. Braceras. Thank you, Chairman Durbin----
Chair Durbin. You need to turn your microphone on. Slide
your finger over the red light. It should work. I hope it does.
STATEMENT OF JENNIFER C. BRACERAS, DIRECTOR, INDEPENDENT
WOMEN'S LAW CENTER, INDEPENDENT WOMEN'S FORUM, CONCORD,
MASSACHUSETTS
Ms. Braceras. Yes. Okay. Thank you, Chairman Durbin,
Ranking Member Graham, and distinguished Members of the
Committee.
On behalf of Independent Women's Law Center and as the
mother of four children, including three daughters, I am here
to warn you. The ERA is a Trojan horse. It promises equality,
but hidden inside the empty rhetoric is a laundry list of
policies that will harm women and girls. Back when the ERA was
introduced in the House in 1971----
[Disturbance occurs in the hearing room.]
Chair Durbin. Can I ask the Capitol Police to enforce?
[Disturbance continues in the hearing room.]
[Gavel is tapped twice.]
[Disturbance continues in the hearing room.]
[Gavel is tapped.]
Chair Durbin. Let's try to maintain order so we can get
through this proceeding and have all points of view expressed.
Ms. Braceras. The people who have been locked out of this
process, frankly, are the 62 percent of American voters who
either weren't born or were too young to vote when the ERA
expired in 1979.
But, as I was saying, when the ERA was introduced in the
House in 1971, it was still lawful to deny women credit, to
refuse to sell or rent housing to women, to sexually harass
women at work and at school, and to bar them from certain
schools or certain fields of study.
Millions of Americans supported the ERA at that time as a
solution to these problems. Frankly, I might have, too, had I
been more than 3 years old. But 52 years later, I'm happy to
say that sex discrimination and sexual harassment are illegal
in the United States of America. And public policies that treat
one sex less favorably than the other are already
unconstitutional under the Equal Protection Clause.
Today, my three daughters and my son are legally equal.
Indeed, so much has changed since the 1970s that even the late
Justice Ruth Bader Ginsburg believed that when it comes to the
law, quote, ``there is no practical difference between what has
evolved and the ERA.'' The ERA is therefore unnecessary in
2023. But that is precisely why it is so dangerous.
To begin with, the ERA does not define the word ``sex.'' In
1971, there was no need to. We all knew that it meant
biological sex.
Today, ideologues are actively trying to redefine the term
to include gender identity. And there can be no doubt that they
will use the ERA to constitutionally mandate the ability of
male prisoners to self-identify into women's facilities,
taxpayer funding of puberty blockers for trans-identified
teens, and the participation of biological males on women's
sports teams.
But even if the ERA did define the phrase sex consistent
with biology, the Amendment would still jeopardize many single-
sex spaces we take for granted.
Layering the ERA on top of the Equal Protection Clause
could suggest that it requires something more. And it might
imply that it forbids public policies that ever distinguished
between males and females. But males and females are not the
same. We never will be. And our laws and public policies
shouldn't treat us as if we're interchangeable.
Do Members of this Committee really want to
constitutionally forbid public schools from offering single-sex
sports teams, sexual assault support groups, or even
fraternities and sororities? Do you want to outlaw grants to
female-owned businesses or grants that encourage women and
girls in STEM?
Because make no mistake, by applying the strictest
constitutional scrutiny to sex-based programs, this is what the
ERA will achieve. But it gets worse. The ERA has the potential
to outlaw not only single-sex spaces, but all sex disparities,
or so its proponents claim.
But what if the disparities favor women? Women today earn
the majority of bachelor's and master's degrees. Should State
schools be forced to discriminate against women in order to
achieve parity in all programs? Should the Government be
required not only to draft women but to draft them and send
them into combat in equal numbers as men? Shouldn't we at least
let the State legislators who represent today's voters debate
and vote on the merits of these policies before we force them
on an unsuspecting public?
The ERA would be devastating not only to women and girls,
but also to religious liberty, threatening the tax-exempt
status of religious groups that ordain only men, and prohibit
Federal funding of religious organizations that counsel young
people about biological sex differences.
Americans could certainly choose to amend the Constitution
to do any of these things, but at no point have 38 States
agreed to an amendment that would do these things, and Congress
cannot now dissolve the ERA's ratification deadline and claim
that they have. Thank you.
[The prepared statement of Ms. Braceras appears as a
submission for the record.]
Chair Durbin. Thank you, Ms. Braceras. Ms. Williams.
STATEMENT OF THURSDAY WILLIAMS, COLLEGE STUDENT, FORMER CAST
MEMBER OF ``WHAT THE CONSTITUTION MEANS TO ME,'' AND ERA
COALITION BOARD MEMBER, HARTFORD, CONNECTICUT
Ms. Williams. Good morning, Chairman Durbin, Ranking Member
Graham, and Members of the Committee on the Judiciary.
My name is Thursday Williams. I am currently a senior at
Trinity College in Connecticut, and I serve on the board of the
ERA Coalition. It is such an honor to be here today testifying
on behalf of the Equal Rights Amendment. Thank you, Senator
Durbin, for inviting me to share my story of why the Equal
Rights Amendment is important to me, my peers, and the future
generation.
We are at a tipping point. The future of our democracy is
at stake. The ERA holds the promise of a brighter future for us
all.
My family came to this country from Jamaica seeking the
American dream of education and productivity, and my mission is
to fulfill that dream. I proudly became a citizen, was accepted
into a competitive college, took on leadership roles, became
president of Trinity College Black Women's Organization, and
engaged in spirited debates about rights and freedom.
I fell in love with the United States Constitution in high
school when I participated in constitutional debates through
the legal outreach program. I argued multiple constitutional
issues at NYU and Brooklyn Law School, including the Equal
Protection Clause, the Fourth Amendment, and voting rights.
What I love the most about the Constitution is how
brilliantly it was designed to adapt to the changing needs of
its people. Our Founding Fathers were visionaries. They
understood that we needed a document that can endure throughout
generations. That's when I knew this was the thing for me. I
wanted to study law. I wanted to be one of the change makers.
During my senior year of high school, I had the opportunity
to perform in an award-winning Broadway play, ``What the
Constitution Means to Me.'' Each night, I debated why we should
keep the United States Constitution. There was a part in the
play where I was talking about inequality, and I was thinking
about the fact that not so long ago, I would have been
considered property. Not so long ago, I wouldn't even have had
the opportunity to stand on stage as a Black woman.
In my closing argument during one performance, I stopped
mid-show, and I just stood there crying my eyes out at the
idea. Here I am defending a Constitution that at one point
considered me three-fifths of a person, a Constitution that
doesn't explicitly recognize women in it, a Constitution that
in 2023 still doesn't explicitly state that I am equal to a
man. For the first time, it became clear to me that this
document was not written for me.
Nevertheless, I will continue to defend this Constitution,
and I will fight for my rightful place in it. This is why I am
here today. I am here to defend an amendment that would finally
guarantee me equality.
After graduating in May, I will be starting my professional
career at one of the most prestigious law firms in the country.
As exciting as this should be, I proceed with caution because I
am aware that although I am as capable as any man, the system
is stacked against me.
As a woman of color, I am more likely to be offered less
than a man for the same work. I am more likely to be overlooked
for raises and promotions. I will have to work twice as hard to
get the same recognition as my male colleagues. And right now,
I will have limited recourse to fight against it.
This is why it is important for myself, my peers, and the
future generation to have the Equal Rights Amendment. We
deserve a Constitution that guarantees equality regardless of
sex, a Constitution that we can use as a tool to fight
discrimination. The Equal Rights Amendment has fulfilled all
requirements to be added to the Constitution. Now, it is time
for it to be recognized.
If we continue to hold back more than half of our people
from accessing equal opportunities, what does that say about us
as a country? How can we be the beacon of freedom and democracy
we claim to be if we do not declare that sex discrimination
contradicts the American dream?
The ERA will make the Constitution a more perfect document
so we can have a more perfect Union. It is time we stop
disappointing the future generation. Thank you.
[The prepared statement of Ms. Williams appears as a
submission for the record.]
Chair Durbin. Thank you very much, Ms. Williams. Professor
Foley.
STATEMENT OF ELIZABETH PRICE FOLEY, PROFESSOR OF LAW, FLORIDA
INTERNATIONAL UNIVERSITY COLLEGE OF LAW, MIAMI, FLORIDA
Professor Foley. Thank you, Chairman Durbin, Ranking Member
Graham, Members of the Committee, I'm grateful for the
opportunity to testify about this important issue. And as a
constitutional law professor and someone who practices
constitutional law, I'm going to stick to the law.
Okay, so let's talk about Article V of the Constitution.
Article V of the Constitution gives Congress an express power
to propose constitutional amendments, including a power to
propose their mode of ratification, and Congress usually does
this via a joint resolution.
Once that joint resolution passes by two-thirds super
majorities as required by Article V, Congress' role under the
Constitution is done. It's exercised all the power that it has
under Article V. And, in fact, it is the entire joint
resolution, including its preamble, that is then submitted to
the States for ratification. The joint resolution that you
would pass in your Article V capacity is the proposal itself.
So preambles are therefore not only a part of the Article V
proposal, they are often an important part because they often
contain the mode of ratification.
So let me give you a quick example. When Congress passed
the Bill of Rights proposal, the preamble specified that those
Amendments, the first 10 Amendments to the Constitution, those
Amendments' mode of ratification must be by State legislatures
rather than State conventions. And the Twenty-Third through
Twenty-Sixth Amendments, like the ERA, contain a 7-year
ratification deadline in their preambles.
So let's talk about the caselaw now. We've already
mentioned Dillon v. Gloss. This is the most important Supreme
Court case. The Court there unanimously held that a 7-year
ratification deadline that was contained in the Eighteenth
Amendment, the Prohibition Amendment, was judicially
enforceable because it was an exercise of Congress' power to
propose a mode of ratification under Article V.
Now, ERA proponents prefer to kind of ignore Dillon, and
they focus instead on a plurality opinion that was pinned by
Justice Black in the 1939 decision in Coleman v. Miller. Now,
Black's plurality in Coleman took the position, like the ERA
proponents do now, that all ratification issues are
nonjusticiable political questions that Congress alone can
resolve, not the courts. But of course, we all know--most of us
in the room are lawyers--the Black plurality is just that. It's
a plurality. It got four votes.
The other five Justices in Coleman, the majority of the
Court, took a narrower view and held that Congress alone can
decide if an amendment has been ratified in a timely fashion,
and, importantly, it can do so by specifying a ratification
deadline in its proposal. If there's no ratification period
specified by Congress in its proposal, like with the Child
Labor Amendment, which was what was at issue in Coleman, then
the Court won't sort of superimpose one. The amendment will
remain open indefinitely for ratification.
And that's what happened, for example, with the Twenty-
Seventh Amendment, which took 203 years to ratify and was
ultimately ratified in 1992 after being one of James Madison's
original 12 Articles proposed.
[Disturbance occurs in the hearing room.]
Chair Durbin. Please----
[Gavel is tapped twice.]
Chair Durbin [continuing]. Restore order.
[Disturbance continues in the hearing room.]
Chair Durbin. Disruption does not help.
[Disturbance continues in the hearing room.]
Chair Durbin. I'm sorry, Professor Foley. Please proceed.
Professor Foley. Yes, no worries. All right. So if Congress
does specify a ratification deadline in its proposal, like it
did with the Eighteenth Amendment in Dillon and like it has
done with the ERA, then the Court will in fact enforce that
deadline. And either way, notice that Congress is the one in
control. It can define the terms that it wants in its proposal
that it initially submits to the States.
Now, given the Supreme Court precedent, it should be
unsurprising that we have two district court opinions that have
both held that the ERA's ratification deadline is in fact
enforceable.
There was the Idaho v. Freeman case, of which I think
someone mentioned earlier from 1981, and then, most recently,
we have the Virginia v. Ferriero case from the D.C. District
Court in 2021. Both of these courts have expressly rejected the
argument that the ERA's ratification deadline is ineffective
because it's in the preamble. In Ferriero, for example, Judge
Contreras, who's an Obama appointee, held that the ERA's
deadline was operative and not precatory.
So, unlike the Constitution's preamble or preambles in
ordinary statutes, the ERA's deadline doesn't use flowery
language that doesn't have some sort of discernible standard.
It's operative language.
Moreover, and importantly, I think, Congress and the States
have a very longstanding history of treating the mode of
ratification that's contained in a preamble as binding. I gave
you the previous example of the Bill of Rights preamble. This
history is entitled to great weight and has been by courts.
And finally, Ferriero's ratification analysis isn't dicta
as some of the ERA proponents claim. Judge Contreras expressly
stated twice in his opinion that his conclusions both on
standing and ratification were what he called alternate
holdings. And as lawyers in the room know, it's black letter
law that alternate holdings are not dicta, and my written
testimony cites numerous cases, including Supreme Court cases
on this.
If Congress can recognize ratification outside of
proposal's specified deadline, then think about it: Congress
will have a vast new power that is not contemplated under
Article V or any other part of the Constitution. Congress could
specify one mode of proposal in the actual proposal that it
submits to the States, and then years or even centuries later,
it could alter the mode of proposal by a simple majoritarian
resolution. The constitutional amendment process would no
longer be fixed and stable, but it would be a chaotic ever-
moving target.
This wouldn't be fair to the States, and it would
effectively gut Article V's supermajoritarian process. So I
would urge opposition to Senate Resolution 4 or any similar
proposal. Thank you.
[The prepared statement of Professor Foley appears as a
submission for the record.]
Chair Durbin. Thank you, Professor Foley. Ms. Sullivan.
STATEMENT OF KATHLEEN M. SULLIVAN, SENIOR COUNSEL, QUINN
EMANUEL URQUHART & SULLIVAN, LLP, LOS ANGELES, CALIFORNIA
Ms. Sullivan. Thank you so much, Chairman Durbin, Ranking
Member Graham, and distinguished Members of the Committee. It's
a privilege to be before this Committee, which I first had as a
privilege 37 years ago, which is a sobering thing to think
about.
I am delighted to have this opportunity to speak in support
of Senate Joint Resolution 4 from the perspective of a
constitutional scholar. And I'd like to respectfully disagree
with my learned colleague, Professor Foley, on several points,
but I'd like to really focus on three points today.
First, I want to echo the points made so eloquently in the
opening panel by Senators Cardin and Murkowski that this ERA is
very much a bipartisan enterprise. And it has been since its
inception 100 years ago. It was authored by Republican as well
as Democratic authors. It was proposed in a bipartisan fashion,
and it was ratified in bipartisan fashion. It was great
Republican Congresswomen who reached across the aisle to
Democratic Congresswomen to propose the ERA in 1972. And it's
been bipartisan right through the ratifications by Illinois,
Nevada, and Virginia.
Second point, I would like to echo the Chairman's eloquent
words about why the ERA is not redundant of existing equal
protection jurisprudence as announced by the Court. It's not
redundant. It's true, we've had--as all of my colleagues have
said, we've had advances for women, very important advances,
over the last 50 years. But they're not guaranteed in the
Constitution. And under the current Supreme Court's approach to
interpreting the Fourteenth Amendment and the other Civil War
amendments, they look to history. And I can tell you that the
history of the framing of the Fourteenth Amendment was not
surrounded by the view that women were the equal of men.
And don't take it from me. You can take it from the Supreme
Court, which upheld in Bradwell against Illinois in 1872, a few
short years after the Fourteenth Amendment; the power of
Illinois to exclude women from the practice of law or the
Supreme Court, in Minor v. Happersett, an 1874 decision in
which the Supreme Court held women did not have an equal right
to vote with men under either the Equal Protection or the
Privileges or Immunities Clause of the Fourteenth Amendment.
So if we look to 1868 to see what the Equal Protection
Clause means, we're not going to find that it protected the
equality of women to men. That's why the ERA is not redundant.
That's why it should be enacted now. That's why it should be
affirmed now.
It's my belief that under Article V, Congress proposed that
38 States ratified it. It is the law now, and the only thing
standing in the way is the congressional deadline, which
Congress set in 1972, altered in 1978, and has the power to
change today.
And that's what I want to end on my third point, and the
most important point for today is to absolutely affirm, from a
perspective of a constitutional scholar who's looked at Article
V, that this body has the power to remove the deadline that was
set in 1972 and extended in 1978.
Now, why does the Congress have constitutional authority to
eliminate the deadline? Well, to begin with, there's already a
body of precedent in this body. This body decided it had the
power to extend the deadline in 1978 and did so on the advice
of the executive branch and Office of Legal Counsel memo at the
time.
But the most important reason why you have this power, and
here I want to respectfully disagree with my friend, Professor
Foley, is the prior deadline was in the preamble and not in the
text.
Now, over time, Congress has had a different approach to
where it put these deadlines. It put a deadline in the text of
the Eighteenth Amendment, the Prohibition Amendment, and it
said it shall be inoperative unless adopted. And when it went
out to the States for ratification, the States voted on that
language. That was an expiration date.
What this body said in 1972 for the ERA could not have been
more different. It just said it shall be the Amendment, a part
of the Constitution when ratified by the legislatures of three-
fourths of the States within 7 years. That was advisory. It was
hortatory. It was something that expressed the wish of the body
then, but it can be changed.
Now, here's the key point: When the Framers wanted to put
time limits in the Constitution, they knew how to do it--6
years for a term of office; 2 years for a term of office; 4
years for a Presidential term of office; the Pocket Veto
Clause, Article I, Section 7, ``If any Bill shall not be
returned by the President within ten Days . . . after it shall
have been presented to him, the Same shall be a Law.'' There is
no time limit in Article V.
And when this body adopted the time limit in the preamble
by joint resolution and majority vote, it set the precedent for
this body now today to decide by joint resolution through
majority vote to change the deadline, to remove the deadline.
And that is why Senate Joint Resolution Number 4 is proper,
it's constitutional, it's within this body's power, and it will
make clear and undisputable that the Equal Rights Amendment is
now the Twenty-Eighth Amendment to the Constitution. Thank you.
[The prepared statement of Ms. Sullivan appears as a
submission for the record.]
Chair Durbin. Thank you, Ms. Sullivan. We now will turn to
questions, and each Member has 5 minutes.
I'm going to try to ask two questions to clarify I think
two important issues, and I'm going to start with you, Ms.
Sullivan. And I want to go to this preamble question.
Professor Foley noted Article V in her presentation to the
Committee--I looked at Article V--there is no mention of the
word ``preamble'' in Article V. I looked, of course, to the
preamble to the Constitution, and as memorable as the words may
be, I don't believe that they have driven decisions of the
Court at any stage. The body of the Constitution does, over and
over again. I can't recall. Maybe I'm just not aware of it.
But the preamble has been a driving force to establish or
to question a person's rights. And, of course, this
Constitution in Article VII spells out exactly what
ratification of the Constitution entails. And again, we have an
important paragraph which does not include the word preamble at
any stage.
So my question to you initially is the argument that this
is in a preamble and should be treated differently than other
places you've stated already, but what is your comment on the
preamble to the Constitution and the fact that it has not been
a driving force?
Ms. Sullivan. Preambles can have eloquent power. The
preamble to the Constitution is perhaps the greatest preamble
ever written. But preambles do not drive the interpretation of
Article V joint resolutions, and they never did. And no court
has ever declared it. And crucially, I want to focus on Dillon
v. Gloss, which Senator Graham mentioned earlier, a 1921
decision that, of course, did hold that the Eighteenth
Amendment was not unconstitutional by virtue of the 7-year
expiration date that was baked into it and ratified by the
States. That crucially was not a preamble. It was the
language--the 7-year deadline was an expiration date in the
text.
Now, why does that matter? It matters because the States
vote on the text of the Amendment. When they ratify, the States
are not ratifying the preamble. They are ratifying the text. So
it's one thing to bake the deadline into the constitutional
text and have the States vote on it, that might be binding, but
a preamble is just advisory. It's your dialogue with the States
saying, ``Get this done in 7 years, but maybe we'll revisit
it.''
And, if anything, the language of Coleman v. Miller, the
1939 case, is supportive of the view that the Congress does
have the power now to say we think the ERA is still vital, and
we think we should remove the prior deadline.
One Congress can't entrench itself into the future by
binding a future Congress. One Congress can't prevent the
States from exercising their ratification role by setting a
binding deadline on the States enforceable by a court.
So, just to--there's no constitutional decision by the
Supreme Court standing in your way. Dillon v. Gloss is an
apposite, because it was about a deadline in the text and not
the preamble. And Coleman v. Miller is supportive of this
Congress' role in deciding that the ERA still has a vital role
to play today.
Chair Durbin. So let me go to the second question that was
raised by Professor Foley as well as by Senator Graham. Since
Congress sent the resolution proposing inclusion of the ERA in
the Constitution to the States in March of 1972, as we know, 38
States have ratified the Amendment.
However, five of those States have subsequently sought to
rescind their ratification: Nebraska, 1973; Tennessee, 1974;
Idaho, 1977; Kentucky, 1978; and South Dakota in 1979. North
Dakota also recently voted to rescind its ratification in 2021.
What is the legal significance, Ms. Sullivan, of these
State legislatures voting to rescind their ratifications?
Ms. Sullivan. It has no--a State rescission has no force
under the text of Article V, which speaks of ratification and
not of rescission. Number two, when two States tried to
withdraw or rescind their ratification of the Fourteenth
Amendment after it was proposed and adopted, this body rejected
that. So there's precedent in this body for rejecting efforts
to rescind. And to the extent this body has the power I
described before, this body has the power to affirm that those
rescissions are ineffective now just as they were for the
Fourteenth Amendment. We wouldn't have had the Fourteenth
Amendment today if we'd listened to rescissions.
Chair Durbin. Thank you very much. Senator Graham.
Senator Graham. Thank you, Mr. Chairman. Give me a little
bit of latitude, if you don't mind. There's sort of some
breaking news here. Apparently, the D.C. Circuit Court of
Appeals just affirmed the holding, I think--it's Virginia v.
Ferriero. Is that the name of it?
Professor Foley. Yes, that's the name of it.
Ms. Braceras. Illinois now.
Senator Graham. Let me--give me a second to set the stage,
Mr. Chairman, if you don't mind. So you had two States,
basically, sue in district court, who ratified the ERA after
the time period in question, compelling the National Archivist
to enroll it in the Constitution. Is that generally what they
were suing about, Ms. Foley?
Professor Foley. Well, I don't know. I haven't read the
opinion yet since----
Senator Graham. No, Illinois and Nevada brought a lawsuit--
--
Professor Foley. Yes.
Senator Graham [continuing]. In the district court----
Professor Foley. Correct.
Senator Graham [continuing]. Saying their ratification
after 1982----
Professor Foley. Was valid.
Senator Graham [continuing]. Should count and get you to
38, and the district court said no. Is that correct?
Professor Foley. That's correct. They sought a writ of
mandamus to force the U.S. Archivist to publish.
Senator Graham. So the district court upheld the idea that
we, the Congress, could set deadlines, which we did in this
case.
Professor Foley. Correct, citing Dillon.
Senator Graham. Okay. So today, the D.C.'s Court of Appeals
rejected the mandamus request and upheld the lower court. So
that's where we're at, like, 11 or whatever time it is.
The point I'm trying to make is that the reason we're not
starting over and we're trying to turn the Constitution, in my
opinion, upside down is because if you started this process
today, you wouldn't come anywhere near two-thirds of the House
and Senate to ratify this Amendment. And y'all all know that.
Times have changed. Women's rights have been acknowledged. And
why it would be so soundly rejected, this Amendment would lead
to chaos.
This Amendment would really punish women who are trying to
play sports fairly. This Amendment would give the Court the
ability to strike down every pro-life measure passed by the
States. And if you don't believe me, this is what NARAL said--
sent out a national alert: The ERA--what we're debating here
today--would ``reinforce the constitutional right to
abortion.'' It would ``require judges to strike down anti-
abortion laws.'' Ms. Braceras, do you agree with their
position?
Ms. Braceras. Yes, I do.
Senator Graham. Ms. Sullivan, do you agree with their
position?
Ms. Sullivan. I'm sorry.
Senator Graham. That NARAL is saying if the ERA were
passed, become a constitutional amendment, it would allow
courts to strike down all restrictions on abortion that exists
in the States today based on the ERA. Do you agree with that?
Ms. Sullivan. Senator, I respectfully do not agree with
that.
Senator Graham. So you disagree with NARAL?
Ms. Sullivan. I do, but on that point, on that prediction.
Senator Graham. Okay. So----
Ms. Sullivan [continuing]. I think that there would be a
case-by-case determination that would balance the right to
women's equality against other rights, which is how we practice
constitutional law every day, Senator.
Senator Graham. The ACLU wrote the House in March of 2021:
``The Equal Rights Amendment could provide an additional layer
of protection against restrictions on abortion. It could be a
tool against further erosion of reproductive rights.'' Do you
agree with that, Ms. Braceras?
Ms. Braceras. I certainly do. I mean, certainly, that's
what the proponents of the ERA want to----
Senator Graham. Okay, so let's just be honest. The people
who are pushing politically to pass this are hanging their head
on if it became law, every pro-life measure in this country
would fall. You didn't say that in 1982. So if there is a law
in a State, pick a State, that says a biological male cannot
compete against females, would that law be subject to being
struck down if the ERA is passed, Ms. Braceras?
Ms. Braceras. Yes, it would. In fact, I would add that in
my home State of Massachusetts where we have a State Equal
Rights Amendment, schools are required to allow boys to compete
in women's sports. And as a result, my daughter, who is now a
Division I field hockey player in her senior year of high
school--her team competed against at least three teams that had
more than three men on them, as is their constitutional right
in Massachusetts.
Senator Graham. So if gender identity becomes the new
standard on----
Ms. Braceras. Oh, and this isn't gender identity. These
were not trans-identified----
Senator Graham. Right.
Ms. Braceras [continuing]. Individuals. These were boys who
identify as boys and were very good athletes in hockey and
lacrosse and thought, wouldn't it be fun--or funny to go out
and play field hockey against a bunch of girls, some of whom
were future Division I athletes----
Senator Graham. So I'll just wrap----
Ms. Braceras [continuing]. And take their spots on varsity
teams.
Senator Graham. Yes. I'll just wrap this up, Mr. Chairman.
The reason it wouldn't get two-thirds votes, most Americans
don't like the outcome we're talking about here. Most Americans
would be really upset to have a constitutional amendment that
would do the things we're talking about--mandate abortion on
demand up to the moment of birth. That's what it would do. And
the people pushing it, that's what they want.
And if you can't pull this rabbit-out-of-a-hat
constitutional exercise and count the States, not count the
ones that rescinded, count the ones that did after the time
period, and you had to start over as Justice Ginsburg
indicated, you would fail miserably because the times in which
we live have changed.
You wouldn't get anywhere near two-thirds vote in the
Senate or the House because most Members of Congress, and I
think a majority of Senators, do not want a constitutional
amendment that requires abortion on demand up to the moment of
birth.
I think most Members----
[Disturbance occurs in the hearing room.]
Senator Graham [continuing]. Of the House and most Members
of the Senate----
[Disturbance continues in the hearing room.]
Senator Graham [continuing]. Most Members of the House and
most Members of the Senate would be offended by a law----
[Disturbance continues in the hearing room.]
Senator Graham [continuing]. A constitutional amendment,
mandating that biological males can take over girls' sports.
That's why you would fail so miserably.
[Disturbance continues in the hearing room.]
Senator Graham. Thank you. Have a good day.
[Disturbance continues in the hearing room.]
Senator Graham. Goodbye.
Chair Durbin. So, if the Senator from South Carolina--bear
with me here. I see this opinion that you've referenced in your
statement. And as I understand it, the circuit court was
affirming what the district court had decided, that the court
itself was not going to overturn this decision, which puts the
ball right smack dab back in Congress' court.
Senator Graham. Yes, sir. That's right. And the point is
that the courts have upheld the position of the district judge.
And what I am saying, no, it doesn't put it back. The law of
the land is that 7 years plus 3 years is the limit. And we're
not buying into what you're selling here. No, we don't agree
with that.
Chair Durbin. And so, let me tell you the sequence of
Members who will be called on based on the early bird rule.
First, Senator Whitehouse, then Senator Grassley, Klobuchar,
then Senator Lee, and the list goes on from there. So let's
start with Senator Whitehouse.
Senator Whitehouse. Thanks, Chairman. It's always
interesting to me to figure out who's here in the room. So if
you don't mind, Ms. Braceras, I'd like to ask you a few
questions about the Independent Women's Law Center.
Ms. Braceras. Sure.
Senator Whitehouse. What is its relationship with the
Independent Women's Forum and the Independent Women's Voice
organizations?
Ms. Braceras. We are the legal advocacy arm of the
Independent Women's Forum and Independent Women's Voice.
Senator Whitehouse. So they share support for the
organization that you are here representing, together?
Ms. Braceras. Correct. We're a part of Independent Women's
Forum.
Senator Whitehouse. I'm sorry. You're a part of Independent
Women's Forum or you're a part of Independent Women's Voice?
Ms. Braceras. We're a part of, well, both.
Senator Whitehouse. Okay. Got it. What else do Independent
Women's Forum and Independent Women's Voice share? Do they
share officers?
Ms. Braceras. I'd be happy to respond to those questions in
writing. I don't really have the corporate structure in front
of me right now.
Senator Whitehouse. You don't know if they share officers
or not?
Ms. Braceras. We have overlapping employees, some, not all.
Senator Whitehouse. Okay. So you share staff--some staff.
Correct?
Ms. Braceras. Correct.
Senator Whitehouse. You're not sure whether you share
officers or not, but you'll get that to me in writing. Correct?
Ms. Braceras. If you'd like.
Senator Whitehouse. I would like. Do you share donors?
Ms. Braceras. I have no idea. I'm an employee. I'm not a
part of the fundraising arm.
Senator Whitehouse. Okay. Could we add that to the
questions you'll get back to me in writing on, whether you
share--the organizations share donors?
Ms. Braceras. Sure. I'm quite sure they don't share
donations. Individuals may donate to either Independent Women's
Voice, Independent Women's Forum, or both. But no, they don't
share the donations.
Senator Whitehouse. But they may have the same donors.
Correct?
Ms. Braceras. It's possible.
Senator Whitehouse. That's what you'll let me know.
Correct?
Ms. Braceras. Sure.
Senator Whitehouse. And office space, do they share office
space?
Ms. Braceras. We're a virtual office. We have been since
long before COVID, actually. Our staff almost is entirely of
women. And for a variety of reasons, our organizations made the
decision long ago to allow our staff to work from home.
Senator Whitehouse. What distinctions would we find between
the office arrangements for Independent Women's Voice and
Independent Women's Forum?
Ms. Braceras. Well, as I said, we're both virtual
companies.
Senator Whitehouse. So there's no difference between the
office----
Ms. Braceras. There is no office----
Senator Whitehouse [continuing]. For either of them?
Ms. Braceras [continuing]. There is no office for either of
them.
Senator Whitehouse. There's no physical office.
Ms. Braceras. There's no physical office.
Senator Whitehouse. You get together, you have meetings,
you do Zooms, you do phone calls, all of that sort of thing
that offices do. Correct?
Ms. Braceras. Correct.
Senator Whitehouse. And when you do that, is there a
distinction between whether it's being done by Independent
Women's Voice or Independent Women's Forum?
Ms. Braceras. Yes, depending on the meeting. I mean, if IWF
policy staff calls a meeting, then it's a meeting of the IWF
policy staff.
Senator Whitehouse. Okay. The history of your organization,
as I understand it, is that Independent Women's Forum was led
from 2000 to 2005 by Koch Industries' lobbyist Nancy
Pfotenhauer. I don't know if I pronounced that name right, but
is that true?
Ms. Braceras. Nancy Pfotenhauer was president of IWF for a
time period. I don't have the exact dates in front of me.
Senator Whitehouse. And as I understand it, in 2003, she
was also president of Americans for Prosperity, which is the
Koch organization's primary political battleship, I would call
it, entity.
Ms. Braceras. I have no idea, Senator. And I'm pleased that
you're so interested in the work of IWF. I hope that you'll ask
the other panelists here today, and other panelists that come
before you on other----
Senator Whitehouse. Well, there are more mysteries around--
--
Ms. Braceras [continuing]. Similar questions.
Senator Whitehouse [continuing]. I think there are more
mysteries around yours than the others. So if you don't mind,
I'll focus on that.
Ms. Braceras. Oh there's no mystery about IWF.
Senator Whitehouse. It originated as Women for Judge
Thomas. Correct?
Ms. Braceras. Yes, it did, founded by Ricky Silberman, who
had been vice chair of the EEOC with Justice Thomas.
Senator Whitehouse. And the Koch Industries' lobbyist ran
both those organizations at the same time that she ran
Americans for Prosperity for those years.
Ms. Braceras. I have no idea what you're talking about----
Senator Whitehouse. Okay.
Ms. Braceras [continuing]. A Koch Industry lobbyist. I
think you're--I have no knowledge of that.
Senator Whitehouse. All right. You do take positions on
judicial nominees. Do you not?
Ms. Braceras. We do.
Senator Whitehouse. Have you ever taken a position in favor
of an appointee of a Democratic President?
Ms. Braceras. Have I personally, or has the organization?
Senator Whitehouse. Either organization or yourself, all
three.
Ms. Braceras. I'm sure that I have.
Senator Whitehouse. Okay, let's put that aside then and
look at the two organizations since that's where my question
was going. Have they----
Ms. Braceras. Well, the organizations--to be honest with
you, the organizations have for the most part only weighed in
on Supreme Court nominations. I think there were a----
Senator Whitehouse. Have you ever supported a Democratic
nominee--has either organization ever supported a Democratic
nominee to the Supreme Court?
Ms. Braceras. Not in my knowledge, no.
Senator Whitehouse. Has the----
Ms. Braceras [continuing]. We support nominees who support
an originalist interpretation of the Constitution.
Senator Whitehouse. Had the International--this will be my
last question. Did the International--sorry--the Independent
Women's Forum call the testimony here to this Committee by Dr.
Christine Blasey Ford a publicity stunt?
Ms. Braceras. Did the Independent Women's Forum say that?
Senator Whitehouse. Yes.
Ms. Braceras. I don't recall.
Senator Whitehouse. Okay. My time's up.
Chair Durbin. Senator Grassley.
Senator Grassley. Ms. Braceras, Justice Ginsburg quote
about the Equal Rights Amendment falling three States short of
ramification has already been referred to, and she said it
should start all over again. Given how rare it is for our
history to amend the Constitution, do you agree with Justice
Ginsburg that the amendment process should start over to ensure
constitutionality and the confidence of the American people?
Ms. Braceras. I do, and particularly because the
circumstances have changed so much that the Amendment that is
currently before you today is effectively a different amendment
than the one that the States voted to approve--the 35 States
voted to approve in the early 1970s. I would also argue that 62
percent of the American voters, at least 62 percent, were not
of voting age or were not yet born at the time that the States
first considered this Amendment. The majority of American
voters today are women. And today's women and their elected
representatives in the States should have an opportunity to
weigh in on whether or not this is necessary in 2023.
Senator Grassley. Also, the Department of Justice issued an
opinion that the Equal Rights Amendment has expired--expired
was their word--and it is constitutionally required that the
process start again. So can you talk about why this is the case
and what effects it would have on the Amendment to continue as
it stands? And I think you already spoke to that point a little
bit, but if you want to expand on it, feel free to do that.
Ms. Braceras. Yes, sir. When the Amendment fails to garner
38 States in the time allotted by Congress, the Amendment died.
And there's nothing to--there's effectively--you're talking
about lifting a deadline on something that no longer exists. It
died when it expired in 1979, I would argue. Some people argue
it expired in 1982, but regardless, it is dead now and
therefore cannot be resurrected from the dead.
Senator Grassley. Yes. Professor Foley, the Supreme Court
held that Congress could fix a reasonable time for ratification
about an amendment. Congress fixed the time for this
constitutional amendment, and, of course, this expired. Are you
aware of any constitutional amendments that were ratified after
the deadline for ratification of the amendment?
Professor Foley. No, this is the only one.
Senator Grassley. Also, do you explain to us whether
Congress has the constitutional authority to pass a proposed
amendment without a ratification deadline and then years later
impose a ratification deadline before the threshold for State
ratification has been satisfied?
Professor Foley. No. As I said in my testimony, you know,
the only power Congress has is under Article V, and that is to
make a proposal that is submitted to the States. Once that
proposal is submitted to the States, your job is done and
you're locked in, and you can't change it by simple
majoritarian resolutions in the future.
So, for example, your mode of ratification that you choose
can include not only a ratification deadline should you choose
to impose one, but it can also include, and does generally
include, the mode of ratification that's expressly mentioned in
Article V, which is specifying whether the ratification should
occur via State legislatures versus State conventions. And once
you pick State conventions or State legislatures, you're also
locked in just like you're locked in on the deadline. So
whatever mode of ratification you pick is fixed.
Senator Grassley. Yes. And my last question will be to you
also, Professor Foley. What are the legal risks of disregarding
the ratification deadline for this constitutional Amendment?
Professor Foley. Well, I think the biggest problem of all
is that if you sort of arrogate to yourself through a
majoritarian resolution the idea that you have this sort of new
power to change the mode of ratification, then that means the
mode of ratification, including picking State legislatures
versus State conventions, and any deadline is changeable at
whim of any future Congress.
And, you know, that's a moment of constitutional
instability. It's deeply unfair to the States who always
treated your modes of ratification as fixed and binding on
them, and it basically guts the super majoritarian process of
Article V. So I think it's a very dangerous precedent to set.
Senator Grassley. Thank you.
Chair Durbin. Thank you, Senator Grassley. And next is
Senator Klobuchar.
Senator Klobuchar. Well, thank you very much, Mr. Chairman.
I have long supported the Equal Rights Amendment--I guess long
is the right adjective to use here--and I've really appreciated
all the testimony, especially Senator Murkowski's willingness
to talk about the importance of bipartisan support for this.
And I'd start with you, Lieutenant Governor Stratton. Could you
talk about Illinois where just in 2018, Illinois ratified the
ERA with bipartisan support, including from the House
Republican leader, nine other Republicans, and how the ERA
gathered that kind of bipartisan support in Illinois and still,
in fact, has it nationally?
Lieutenant Governor Stratton. Yes. Thank you so much,
Senator, for that question. In 2018, as I served in the
Illinois House, I was proud to not only vote for the
ratification of the Equal Rights Amendment in Illinois but to
do so alongside of my colleagues on both sides of the aisle. It
was a bipartisan vote. And I think that one of the things that
was so influential in that debate on the House floor was to
talk about the implications not just for women today, but for
women and girls of the next generation and the generations to
come.
I think I heard a statement in one of the previous speakers
talking about what would happen if we needed to wait for every
vote--wait until we had the next generation to be alive and
able to make a vote. Well, certainly that is not something that
I would have wanted as it relates to the Fourteenth Amendment
as a Black woman, for someone to say, well, let's just wait
until the next generation is alive and can vote.
I'm grateful that there are votes that can be taken and
amendments that can be made to our Constitution that enshrine
rights, that demonstrate that we should be able to live free
from discrimination----
Senator Klobuchar. Thank you.
Lieutenant Governor Stratton [continuing]. Right now in
Illinois.
Senator Klobuchar. Thank you. Okay, thanks. I just have a
few more questions. We have our little 5 minutes here, so I
guess I will go to you, Professor Sullivan.
Last year, I joined Senators Blumenthal and Cortez Masto,
as well as former Representative Maloney, who's here today,
returned--thank you for being here--and Speier--in urging the
Justice Department to withdraw an opinion issued under the
previous administration seeking to stand in the way of the ERA
being added to the Constitution.
The Justice Department said that the prior opinion did not
prevent the Congress, in fact, from taking action related to
the ratification of the ERA. Quickly, do you agree with the
Justice Department that there's nothing stopping Congress from
taking action regarding the ERA?
Ms. Sullivan. Yes.
Senator Klobuchar. Okay. Well, that is nice and succinct.
Thank you. The other question I wanted to ask you was that,
given the Supreme Court's willingness to roll back fundamental
rights, do you agree that it is more important than ever to
enshrine formal protections in our Constitution guaranteeing
women's equality?
Ms. Sullivan. Yes, absolutely.
Senator Klobuchar. Okay. And I think that's very important
for people to know the moment that we are in time. While this
has been going on, as I described it early on, for a long, long
time, and women have been fighting for their rights, and it has
been, in fact, ratified in so many States, it is all the more
relevant today.
I guess I would end with you, Ms. Williams. I know in high
school you performed on Broadway in ``What the Constitution
Means to Me.'' I actually got to personally see the play when
it came to Minneapolis, and it was an amazing experience, and I
know different high schoolers have performed as part of that
play for many years.
I want to give you the opportunity to tell the Committee
what a guarantee of equality in the Constitution would mean to
you.
Ms. Williams. Yes. So, as I've previously mentioned in my
testimony, in May, I will be starting a position as a
litigation paralegal at one of the most prestigious firms. And
I think when thinking about the experience of women, especially
Black women, in this country, it is important for us to have
tools to fight against discrimination, to have tools that will
help us gain the equality we deserve.
As I've said, women in this country are not offered as much
as men. I will have to work as hard as my male colleagues. I
may not receive the same respect as my male colleagues, and I
will have limited recourse to fight against that, and I deserve
that.
As a Black woman, I experience this world very differently
from each and every person on this Committee. And it is
important that my perspective and my experience is in this
Constitution, is in this document. So this is why we need the
ERA.
Senator Klobuchar. Very good. Thank you.
Chair Durbin. Thanks, Senator Klobuchar. Senator Lee.
Senator Lee. Thank you very much, Mr. Chairman, and thanks
to all of you for being here. It's important to remember that
when Congress proposed this Amendment in 1972, it didn't happen
in a vacuum. When Congress went to propose it, it didn't have
the votes that it needed. It added the 7-year limitation in
order to secure the consensus necessary to achieve a two-thirds
supermajority vote in both Houses.
In other words, there were Members of Congress needed to
vote for it who weren't willing to vote for it without that
provision. So that's how they achieved the bargain. And we
can't just ignore that. That shouldn't be ignored. You can't
ignore it without doing violence to the process articulated in
Article V of the Constitution for how to amend it. It's
important anytime we amend the Constitution to make sure that
we understand what the language means.
We've seen through other amendments--one of many examples
would be the Fourteenth Amendment. You can't always anticipate
at the outset, when you adopt something like this, what
ramifications it might have. And that's one of the many reasons
it's important to get this right.
All sorts of things have changed since 1972, and that's yet
another prudential reason why it makes sense to put limitations
in there. But to be very clear, there is a remedy for what
you're talking about.
When something expires, it's not like it can't ever be
brought up again. It's just that it becomes a different
proposal. That proposal has a shelf life. That shelf life has
now passed. It has expired. Congress could propose another
Equal Rights Amendment. It has yet to do so, and that matters.
It matters in a way that's been recognized by the courts. The
U.S. District Court for the District of Columbia ruled against
the position that this can be extended. And the U.S. Court of
Appeals for the D.C. Circuit today affirmed that ruling.
So, this argument has lost at the district court. It has
lost at the court of appeals. If it were to come before the
United States Supreme Court, it will lose there, too. And so,
that really is a significant thing.
There are some policy considerations that also need to be
taken into account. In the 1970s, my dad wrote a book. It was
called ``The Lawyer Looks at the Equal Rights Amendment.'' And
he asked a number of questions about the legislation. And one
of the questions he asked, that he identified as the most
important question, relates to what standard of review would be
applied if the Equal Rights Amendment were to become law of the
land. He asked, for example, is it going to be rational basis?
Is it going to be strict scrutiny? Is it going to be
intermediate scrutiny? Or what's it going to be? Or is it going
to be a complete prohibition or a complete prohibition with
qualifications?
Ms. Braceras, does the text of the 1972 ERA make clear what
standard of review courts would apply?
Ms. Braceras. It does not, but the advocates of the ERA
hope and will argue that it requires strict scrutiny.
Senator Lee. Okay. And under strict scrutiny, if it were to
apply, how would that be different? Because, currently,
something like this where there is a Government-imposed
distinction, a differentiation on the basis of sex, it is not
strict scrutiny that applies. It's a form of intermediate
scrutiny. Tell us why that matters. Why do you think that
matters? What's the difference between switching from
intermediate scrutiny to strict scrutiny?
Ms. Braceras. So, strict scrutiny is the standard that
courts use to analyze policies that deal with race, and it's
the right standard to use with race because in the racial
context, separate is unequal.
That is not true in the context of sex. Separate is not
always unequal for women and men when it comes to issues of
privacy or places where biological differences matter, such as
sports. And so, sex should not be treated the same as race
under the Constitution. Our current intermediate scrutiny
standard leaves space for courts to take into consideration
biological differences where they matter. And in all other
cases----
Senator Lee. And strict scrutiny doesn't accommodate that
in the same way.
Ms. Braceras. No, it does not.
Senator Lee. So what might this do for sex-segregated
prisons, prisons for women? What might this do for Government-
sponsored, Government-funded and operated shelters for abused
women, for example, or public restrooms, locker rooms, athletic
facilities, athletic competitions? What might strict scrutiny
do to every one of those?
Ms. Braceras. So, in the racial context, courts have been
very clear that prisons cannot separate inmates on the basis of
race, even where doing so would prevent certain gang violence
in the prison, and that's the right standard. They should not
be able to separate inmates on the basis of race.
If you applied that same standard to men and women, that
would mean that prisons could never--they would have to have
coed prisons. You could never separate inmates on the basis of
sex, and male and female prisoners would have to be housed
together.
Senator Lee. So protections in law, State, and Federal as
they now exist, protections put in place for women reflecting
biological differences between men and women--based on
differences between men and women, would be at stake. They
would be jeopardized. They would be threatened, and, in many
cases, undone through judicial order.
Ms. Braceras. That's correct.
Senator Lee. Thank you, Mr. Chairman.
Chair Durbin. Thank you, Senator Lee. Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman. Thank you for
having this hearing. Thank you all of our witnesses, all of our
audience for being here today, everybody who's watching. This
issue is supremely important.
Ms. Williams, I'm really proud that you're here today----
Ms. Williams. Thank you.
Senator Blumenthal [continuing]. And that you go to school
at Trinity in my home State of Connecticut. I hope one day
maybe it'll be your home State, too, and maybe you'll be
sitting up here----
Ms. Williams. Thank you.
Senator Blumenthal [continuing]. In the chair that I have.
I'm really proud of your testimony. You know, there are not
too many people in this country who can say, quote, ``I fell in
love with United States Constitution in high school.'' But
thank you for your commitment to our Constitution and for your
understanding about the brilliance of that Constitution. And
you say it in your testimony, ``Our Founding Fathers''--I'm
quoting--``Our Founding Fathers were visionaries. They
understood that we needed a document that could endure
throughout generations.''
Ms. Williams. That's right.
Senator Blumenthal. The fact is, generations have fought
for the ERA. I've been proud to support the ERA for a long
time. And now your generation is fighting for it. And whether
it occurs in this Congress or not, I believe that your
generation will finally accomplish the ERA if we don't. And I
want to ask you what you would tell others in your generation
about the importance of the ERA to them in their daily lives.
Ms. Williams. So, as I've been sitting here listening to
the testimonies and the questions, there are a lot of concerns
about men performing in women's sports. And I am here as a
young woman of color who is in her senior year of college.
We're not worried about that. I am not worried about that. It's
the truth. We're not.
We have way more important issues that we need to be
focusing on. And I will tell every young person, and I've been
telling as many as I can, this is important for us. The ERA
protects everyone, me, Black women, white women, white men. So
it's important to all of us, and it's important now. It was
important before and it will be important in the future.
Senator Blumenthal. Now, you happen to be going to a school
in Connecticut, which ratified----
Ms. Williams. Yes.
Senator Blumenthal [continuing]. The ERA overwhelmingly,
and in 1974, in fact, adopted its own constitutional amendment
by 77 percent--the equivalent of the ERA in our State. Is it
good enough that Connecticut has done it? You live in
Connecticut.
Ms. Williams. So, it's not good enough. I actually just
want to say that, as a young person, I've been concerned about
the most recent activity of our Supreme Court, the fact that a
lot of our rights are continuing to be rolled back, and I am
now actually seeing the importance of having this Amendment
because of that.
So having a law in Connecticut is not enough. We need this
Amendment. We need it so when things are being rolled back, we
can use it to continue to fight against.
Senator Blumenthal. And in the future, are you going to
continue to work for the ERA?
Ms. Williams. Absolutely, absolutely. I joined the ERA when
I was I think 18, and I am now about to be 22. And I am even
more determined than I've been before. I am even more for it
now than ever.
Senator Blumenthal. Thank you. Thanks, Mr. Chairman.
Chair Durbin. Thank you. Senator Hirono.
Senator Hirono. Mr. Chairman, you know, I'd like to say
that, you know, yes, the times have changed, the times in which
we live, where, sadly, violence--gun violence is rampant, where
we see a rise in hate crimes against Asian Americans, Jews,
LGBTQ persons, when FBI Director Wray says that domestic
terrorism and white supremacy are major concerns. So I'd say
yes, the times have changed. And the times--when we live in the
times when sex discrimination is deemed okay, it's not okay.
This is why I would say we need the Equal Rights Amendment.
Ms. Sullivan, we've been hearing some scare stories about
how our prisons have got to be--that men and women will be put
together, but that is not the strict scrutiny test. The strict
scrutiny test says the law must achieve a compelling State
interest and be minorly tailored to that interest. So it's not
as though the floodgates open and all of these terrible things
that--to some, terrible things--will happen. Can you talk a
little bit more about how the Equal Rights Amendment, once in
the Constitution, will lead to strict scrutiny?
Ms. Sullivan. Thank you very much, Senator. And I just want
to reiterate the points so eloquently made earlier today by
several Senators, including the Chairman, that the Equal Rights
Amendment is about everyone. It's about your wives, your
daughters, your granddaughters, your mothers, your aunts, your
cousins. It's about all women.
It's not about--and why would you be against an Equal
Rights Amendment, which is part of the Constitution, as
mentioned earlier, of all the other democracies with written
constitutions? Why would we want to be allied with nations that
don't have equality for women, that don't let girls go to
school with boys, that don't let women appear outside with
their hair uncovered? Why would we want to filibuster something
that's about fundamental equal rights for all people?
And Senator Lee, your father was a great constitutional
lawyer who I admired so greatly, but Senator Hirono's
absolutely right. This amendment is not about the level of
scrutiny. This is about a fundamental guarantee, in the
majestic words of the Constitution, of equality. And the courts
will work it out later in spirited debates between lawyers in
courts about what the standard of scrutiny should be.
And this Amendment is not saying women and men have to be
treated the same when they're different. It's saying all people
have to be treated equally. And there is plenty of room in the
majestic guarantee of equality to recognize times when women
have to get protection because only women can get pregnant,
that women have to have rectification of past discrimination.
All those benefits for women that Senator Hyde-Smith was
worried would disappear, I think that's a false picture, and
this parade of horribles is very misleading.
All this Amendment will do is make sure we can't have a
court roll the clock back to 1868 or 1874 under the Equal
Protection Clause by interpreting it historically. And as
Senator Klobuchar said, guaranteeing equality in its broad,
vague terms that will be worked out later in specific cases.
So, Senator, no, it is scare tactics that this body should
ignore to suggest that anything is fixed about how the ERA will
be interpreted. I believe it will be interpreted in ways that
empower women and girls into the future as Ms. Williams has so
eloquently suggested it would do, but I don't think you should
listen to these parade of horribles you've heard today.
Senator Hirono. I agree with you. And by the way, we've
heard Ruth Bader Ginsburg mention a number of times, but it was
very clear that she thought that the ERA should be part of the
Constitution. And whatever statement she was making was in the
context of that she thought it should be in the Constitution.
And here is a woman who spent her entire adult life fighting
for equal rights for everyone.
And in spite of that, she didn't think we had gotten it
done, and she thought that the ERA should be part of our
Constitution. So I think that the people who are continuing to
toss her name out as though she supports the proposition that
we should not be supporting this resolution are really off
base.
Also, Ms. Sullivan, can you explain very briefly how the
ERA, by explicitly prohibiting against sex discrimination,
would supplant the current patchwork of Federal, State, and
local laws that currently address sex discrimination and
provide a bedrock of a legal protection against it, and why
it's important?
Ms. Sullivan. Senator, the ERA would nationalize
protections against sex discrimination that already exist in
many of our statutes at the Federal level and many of our State
constitutions. That's important because of federalism. We
believe that people have the right to move between States in
our country, and that means that your rights won't disappear
when you cross a State border from Senator Blumenthal's
Connecticut to another State. So, it simply guarantees for all,
all women nationwide, what is already recognized in a patchwork
of other laws. That's a good thing.
Senator Hirono. Thank you. Thank you, Mr. Chairman.
Senator Lee. Mr. Chairman.
Chair Durbin. Senator Lee.
Senator Lee. Since my name was invoked, I'd like 20 seconds
to respond.
Chair Durbin. Sure, 20 seconds to Senator Lee.
Senator Lee. Professor Sullivan made the argument that we
don't know whether this is about strict scrutiny. It's not a
credible plausible argument to make. There is no reason to push
for the Equal Rights Amendment unless you're trying to push it
into strict scrutiny. That's the only difference between them.
Strict in scrutiny, fatal in fact is the exact reason why
distinctions in law on the basis of sex need to be evaluated
under intermediate scrutiny.
So if you say we don't know what standard will be used,
that simply isn't true. And what we do know is that you'll push
it into strict scrutiny. Strict scrutiny is not accommodating
of the same things. It is strict in scrutiny, strict in theory,
fatal in fact. So, this is not a theoretical argument. It is a
virtual certainty that it will be strict scrutiny. Thanks.
Chair Durbin. Senator was given the Senatorial 20 seconds.
Senator Lee. Did I go over that?
Chair Durbin. Slightly. Senator Welch.
Senator Welch. Thank you very much. In 2019, we have this
wonderful high school girls' soccer team, the Burlington High
School soccer team. And they got national attention when they
advocated and supported the U.S. Women's National Soccer Team's
fight for equal pay. And last year, as you know, the U.S.
Women's National Soccer Team finally won their long-running
battle for equal pay. And all of us here, I think, agree that
everyone's entitled to equal pay. I'm going to ask my first
question for Thursday Williams. You went to Trinity College in
Hartford?
Ms. Williams. I am still there. I graduate in May.
Senator Welch. Well, my daughter went there. So I sent her
a picture of you, told her you were----
[Laughter.]
Senator Welch [continuing]. You know, a person was
testifying here, but thank you for coming. That's fantastic.
So, how can the ratification of the ERA help advocates win
their fight to eliminate gender disparities in pay? And try to
be brief so I can ask a few more questions.
Ms. Williams. Okay. So in my testimony, I did mention that
after graduating in May, I will be starting a litigation
position----
Senator Welch. Right.
Ms. Williams [continuing]. At a very prestigious law firm.
And I am aware that, as I've mentioned, the system is stacked
against me. I'm aware that while right now I might be okay, in
the future, there is a wealth disparity between a woman,
especially a Black woman, and my male colleagues--or my male
peer. And so, that is why this is important.
Senator Welch. Thank you.
Ms. Williams. Thank you.
Senator Welch. Professor Sullivan, two things: One, just--I
want you to comment on how recognizing the ERA strengthens
enforcement of laws that are intended to ensure wage parity;
and second, you might just follow up on Senator Lee's concern
about having the Amendment push analysis into strict scrutiny
because I'm not quite sure most of us know exactly what that
has to do with the question of treating women equally and not
being discriminated against on the basis of a gender.
Ms. Sullivan. Well, thank you, Senator. To start with the
second point, the ERA would simply make constitutional bedrock
something we already recognize, which is women and men should
not be treated unequally.
Senator Welch. Mm-hmm.
Ms. Sullivan. How that gets worked out when there are real
differences between men and women is a question for the future.
And this court--excuse me--the Senate need not specify to
courts of the future how to work those questions out. I believe
it will strengthen protections for women, all women, and it
will not destroy any special protections women may receive now
as it was suggested earlier.
Senator Welch. Okay. Thank you. And for Lieutenant Governor
Stratton, if the ERA is to be officially included in the
Constitution, how would that impact your ability as Lieutenant
Governor to ensure your continuing efforts for equal pay and
for equal work?
[Pause.]
Senator Welch. I don't know if you heard me. Did you hear
the question?
Lieutenant Governor Stratton. Yes, I did. There's a little
bit of a delay.
Senator Welch. Okay.
Lieutenant Governor Stratton. Thank you, Senator, for that
question. I am proud to chair the Illinois Council on Women and
Girls. And whether it's an issue of addressing equal pay or the
pay gap or the wealth gap, whether it's an issue of access to
healthcare, whether it's opportunities to help more women and
girls enter the fields of science and math, or access quality
healthcare, there are so many issues that would allow us with
the foundation in our Constitution--enshrined in our
Constitution that says that no one should be discriminated
against on the basis of sex. It would give us that starting
point, that grounding and baseline, to say, whatever we fight
for, we know it's a value of our country that's enshrined in
the Constitution, and now we can fight for rights for everyone
to be equal.
Senator Welch. Thank you very much. Mr. Chairman, I yield
back.
Chair Durbin. Thank you, Senator. Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman. Welcome to each of
the witnesses. Many judges across the country follow a
straightforward mode of constitutional interpretation that is
looking to the original public meaning of constitutional
language. Original public meaning posits that the object of
interpretation is the constitutional or statutory text as
reasonably understood by the American people at the time of the
provision's enactment.
The ERA resolution was passed out of Congress in 1972, and
it had a clear and unambiguous deadline. Every person in this
room understands what that deadline was. And in 1972, every
person understood it as well. In this Congress, I've
reintroduced legislation that did not pass in the preceding
Congress. I'm quite confident Chairman Durbin has reintroduced
legislation in this Congress that did not pass in the previous
Congress. Why do we have to do that? Because there's a
deadline.
When the previous Congress expired, legislation you
introduced in the previous Congress is no longer before the
Congress. Now, it's not only those of us in the room who
understood the deadline to mean what the deadline actually
says.
In 1978, Congress passed a resolution extending the
ratification deadline until 1982. If the original deadline
wasn't valid, there would have been no need to extend it to
1982. And even judges who don't subscribe to originalism
acknowledged the obvious reality.
Justice Ruth Bader Ginsburg, a trailblazing advocate, said
the following about the Equal Rights Amendment in 2019, quote,
``The ERA fell three States short of ratification. I hope
someday it will be put back in the political hopper, starting
over again, collecting the necessary number of States to ratify
it.'' Professor Foley, what was the Corwin Amendment?
Professor Foley. Corwin Amendment was an amendment that
would have basically prohibited Congress from, or the States
from--well, Congress specifically--from messing with slavery.
Senator Cruz. And are there States that have attempted to
rescind their earlier approval of the Corwin Amendment?
Professor Foley. Yes, several.
Senator Cruz. So Maryland in 2014, Illinois in 2022?
Professor Foley. Mm-hmm.
Senator Cruz. It would seem that legislators from those
States, Illinois in particular, want to have their cake and eat
it, too. On one hand, they want to say in the ERA context that
a State cannot rescind its previous ratification, but at the
same time, they want to be able to rescind their own
ratification and conclude that doing so is perfectly
permissible when it concerns a different topic, when it
concerns slavery. Are those two positions consistent?
Professor Foley. They don't seem consistent to me.
Senator Cruz. Professor Foley, have other constitutional
amendments contained deadlines?
Professor Foley. Sure. Every constitutional amendment since
the Eighteenth Amendment has contained a deadline except for
the Nineteenth, which is gender voting rights.
Senator Cruz. So eight of the last nine Amendments have had
deadlines.
Professor Foley. Yes.
Senator Cruz. Is there Supreme Court precedent that deals
with Congress' ability to include a deadline when it provides
instructions for ratification?
Professor Foley. Yes, absolutely. Dillon v. Gloss and
Coleman v. Miller.
Senator Cruz. Ms. Braceras, good to see you. Welcome.
Ms. Braceras. Nice to see you, sir.
Senator Cruz. You and I were classmates in law school. Good
to see you. Let me ask you, when the original version of the
ERA was introduced, what was the state of the law concerning
discrimination against women? And what protections are there to
protect women against discrimination today?
Ms. Braceras. It was very different. When the House intro--
it was introduced in the House first in 1971. And at that
point, the Supreme Court had not yet decided Reid v. Reid,
which is the famous case brought by the late Justice Ruth Bader
Ginsburg, that established that the Equal Protection Clause of
the Fourteenth Amendment prohibits government from treating
similarly situated men and women differently. So that had not
been decided when the ERA was first introduced. There were a
lot of other things--laws that had not been passed to protect
women. Pregnancy----
Senator Cruz. So there are today vigorous protections
against gender discrimination. And let me ask you----
Ms. Braceras. Both constitutional and statutory.
Senator Cruz. Since my time has expired, let me just ask
you, what are some of the potential consequences for American
society if the ERA were ratified now into the Constitution?
Ms. Braceras. Well, I think one very important thing is
that the meaning of the word sex was quite clear in 1971.
Today, there are many people who are trying to argue that the
word sex also includes gender identity. And so----
Senator Cruz. Including to the Supreme Court in Bostock.
Ms. Braceras. Right. So, if the ERA were to be passed
today, it would open up a whole host of areas to private
women's spaces to men who identify as women.
Senator Cruz. Mr. Chairman, I would ask unanimous consent
to enter into the record a letter from Concerned Women for
America concerning this Amendment.
Chair Durbin. Without objection.
[The information appears as a submission for the record.]
Senator Cruz. Thank you.
Chair Durbin. Senator Ossoff.
Senator Ossoff. Thank you, Mr. Chairman, and thank you to
our panelists for your expertise, for lending your experience
and counsel to the Committee. It was a century ago that the ERA
was authored by Alice Paul and others. Nearly 50 years ago, my
mother, who had just immigrated to the United States as a young
woman, marched in support of the Equal Rights Amendment. Here
we are a century after this was drafted, still not yet having
made the Amendment to our Constitution that protects against
discrimination on the basis of sex.
I'd like to ask each of you, beginning with you, please,
Ms. Sullivan, if you can concisely articulate for us what you
believe the impact would be on U.S. law, on State policy, on
the provision of services to Americans were this to be ratified
and the Constitution thus amended.
Ms. Sullivan. Thank you, Senator. It would guarantee that
women cannot be treated as lesser than men, that girls cannot
be treated as lesser than boys, that the privilege to attend
school, to open businesses, to work, to prosper, to raise
families, cannot be changed on the basis of sex by government.
And that guarantee would be built into the Constitution rather
than relying on shifting and politically appointed Justices of
the Supreme Court to interpret.
Senator Ossoff. It would enshrine in constitutional law not
requiring reliance upon the latest jurisprudence or the
disposition of Congress the fundamental principle that there
should not be discrimination on the basis of sex. Correct?
Ms. Sullivan. Exactly so, Senator.
Senator Ossoff. Professor Foley, same question for you,
please.
Professor Foley. I think the most significant legal effect
would be a shift from intermediate scrutiny to strict scrutiny.
And I think, as Senator Lee pointed out, that would mean that
more laws and distinctions between men and women would be ruled
unconstitutional than they currently are. I think the most
obvious example would be the distinction between men and women
today on Selective Service registration and military draft. So,
presumptively, those would be unconstitutional, that women
would have to register and would be subject to the draft should
this Amendment go into effect.
Another possibility would be, right now under intermediate
scrutiny, it is possible to make distinctions between men and
women based on their gender, particularly when women are
pregnant, and there is concern about exposing an unborn child
to some hazard in the workplace. And I'm not sure--I would
assume under strict scrutiny that that would not be possible
anymore.
Senator Ossoff. Thank you, Professor. Ms. Williams.
Ms. Williams. So, as a young person, I believe while this
Amendment will give me the tools to fight against workplace
discrimination, workplace harassment, once it is passed, State
laws would be passed and enforced to ensure that I am protected
as a Black woman and that other Black women are also protected.
So that's--yes.
Senator Ossoff. Thank you, Ms. Williams. Ms. Braceras.
Ms. Braceras. Well, sex discrimination and sexual
harassment are already illegal in this country. And there are
plenty of tools at the disposal of women who are victims to
remedy those wrongs. That doesn't mean those things don't occur
in our society today. They certainly do. But I'm happy that my
three daughters live in a world where if they are discriminated
against or harassed, they can bring a lawsuit to vindicate
their rights. That is true today. That was not true completely
in 1971 when this Amendment was introduced.
Senator Ossoff. Thank you, Ms. Braceras.
I appreciate all of your contributions. I'd reflect on the
experience of my mother, immigrated to this country, supporting
the ERA 50 years ago, on the founding principles enshrined in
the text of our Constitution about the fundamental equality of
human beings, at the time of their drafting referring
exclusively to men.
It strikes me with great respect for all of your views that
it is a profound common sense that at this point in our
Nation's development, we would enshrine in the most fundamental
legal document that defines our country the basic principle,
which I believe the overwhelming majority of Americans agree,
that there should not be discrimination on the basis of sex and
that we should not rely upon the shifting tides of
jurisprudence or the political disposition of the Congress to
make that fundamental value a core part of American law. Thank
you, all, for your contributions. Thank you, Mr. Chairman.
Chair Durbin. Thank you, Senator Ossoff. And thanks to this
panel.
I'd like to say a few words. Fifty years ago when I was a
brand-new lawyer fighting for the passage of the Equal Rights
Amendment in the Illinois State Senate, many people, including
a woman named Phyllis Schlafly, who was from the State of
Illinois, told us that what we thought were the issues were not
really the issues. The real issue was the fate and future of
public restrooms and whether or not you would have privacy in
those restrooms based on gender.
Now we hear that what's at stake really is not a
constitutional right for women, but the fate of field hockey. I
mean, I'm trying to keep up with the arguments here, but it's--
--
Ms. Braceras. It might not mean a lot to you, sir, but it
means a lot to the girls who play.
Chair Durbin. See, I believe you have a sincere belief in
that. And I believe those girls would probably feel very
strongly about the issue if they're field hockey players.
Ms. Braceras. Particularly when they're displaced by males
on the varsity team.
Chair Durbin. But you see, that's what the argument comes
down to, the fate of field hockey. And I think it is much more
fundamental. We are talking about the role of women in the
United States of America and where we stand.
Ms. Williams, I heard your reference earlier to younger
generations puzzled, shaking their head at all these gray-
haired politicians who are struggling with the very basic
question as to whether women's rights should be enshrined in
the Constitution. And they're off on tangents that most young
people just don't get.
Ms. Williams. We don't, right.
Chair Durbin. Am I putting words in your mouth?
Ms. Williams. I agree. No, I agree. I definitely agree. The
concern about the sports, that's not what we're worried about.
I'm pretty sure there are way more important things for young
people to be stressing about at the moment.
Chair Durbin. And at the heart of this is the Dobbs
decision, and other decisions, which relate to the right and
role of women today. I think there has been a dramatic
evolution in my lifetime of the role of women. And I'm sure
glad that my daughters, and I assume my granddaughters, will
benefit from that.
But we can't stop. If we don't get down, Ms. Sullivan, to
the basics of whether or not there's a constitutional
guarantee--I think we have another Senator on the way, so I'll
speak for a few minutes more, which is the Chairman's
prerogative, I guess.
If we don't get down to the fundamental basics of whether
the law recognizes that, then I guess we have to ask ourselves,
why is there so much fear of this on the other side? Why do
they think this is so threatening in terms of families, the
role of women? We hear about prisons and all these things, and
yet, if you went to the basic question of should we maintain
strict scrutiny when it comes to race, I haven't heard a single
person here say, no, let's get rid of it.
They should, I believe, apply that standard and honor that
standard in the future. So why not the role of women as opposed
to men?
I'm glad Senator Padilla is here. I'm going to let him--
I'll recognize him if he's prepared. Are you ready, Alex?
Senator Padilla.
Senator Padilla. Thank you, Mr. Chair. I appreciate the
patience and understanding. I just returned from presiding over
the Senate. There's a vote open. I'm sure you're aware. So
we'll be making our way soon. But I wouldn't want to miss this
opportunity to offer some remarks.
I appreciate you and Ranking Member Graham for holding this
important hearing. As we've discussed this morning, the ERA is
and always has been about addressing sex-based inequality.
For generations, women have had to fight for access to some
of our most basic rights. And in my view, last summer's Dobbs
opinion was significant. Across the country, Americans have
made their opposition loud and clear. And as we work to uplift
their voices, we must ensure that we remember that, what is at
stake here: Rights once recognized by the Supreme Court and
held dear by Americans may no longer be safe unless they are
enshrined in the Constitution.
I know some of our colleagues on the other side of the
aisle talked about--what's the issue, what's the problem. It's
already unlawful in America. It's already unlawful in certain
States to do X, Y, and Z, but we know those rights can easily
be compromised.
So, with that in mind, a modernization of the law to
recognize sex equality is needed, and the guarantee of equal
rights for women is non-negotiable. As we analyze this issue, I
look forward to working with my colleagues to end sex-based
discrimination in our country, once and for all.
Now, I do have a question if Lieutenant Governor Stratton
is still with us. I know she was participating virtually.
Before becoming Lieutenant Governor of Illinois, you served as
a member of the Illinois House of Representatives and were a
leading advocate for the bipartisan vote--bipartisan vote that
ratified the ERA in Illinois.
I want you to describe your perception of the future of
equality in America and what the impact the ERA ratification
could have on future generations.
Lieutenant Governor Stratton. Thank you so much for that
question, Senator. I think the most important thing that I want
to emphasize is that the Equal Rights Amendment will remove
ambiguity and will make it abundantly clear that no one should
be discriminated against on the basis of their sex. We have
made progress, and we've heard today, yes, there's been
progress made.
Of course, there's been progress because there's been a lot
of women for many generations who have been fighting for this
progress.
But we have to make sure that we not only keep the progress
moving forward but that we protect any attacks on the progress
that has already been made. That is what we talked about on the
floor in 2018, in Illinois in that bipartisan vote. And that's
why the Equal Rights Amendment is so important to provide a
constitutional safeguard to prevent any efforts to roll back
the gains that we have made toward women's equality.
Senator Padilla. Thank you. I just want to make sure I get
in at least one more question with my time remaining.
Enshrining an explicit guarantee of sex equality in the
Constitution would provide the strongest protection against
sex-based discrimination.
Unfortunately, State and Federal legal protections are
vulnerable to future attempts to undermine women's security.
And we need to look no further than the recent bills being
introduced across the country targeting women's access to
abortion care.
A question for Ms. Sullivan: In your opinion, are judicial
remedies like the Equal Protection Clause and the Due Process
Clause strong enough to protect a woman's right to abortion
access and care?
Ms. Sullivan. Senator, the Equal Rights Amendment will
guarantee that women are equal to men. It will not determine
for all time difficult debates in our country like debates over
reproductive rights. Constitutional rights are always subject
to a balance, and I have no illusion that the ERA will end
those debates. But Senator, it will guarantee equality. It will
guarantee equality that women can't be treated as lesser than
men.
And this body has the chance to, as the Lieutenant Governor
said, remove ambiguity. Who would answer the question, ``Are
you for or against equal rights for women? '' Elsewhere in the
world, there are people who would say they're against it. In
this country, no one would say, ``I'm against equal rights for
women.''
So why not remove ambiguity about that? Why not remove
ambiguity? And ambiguity is all that led the D.C. Circuit to
act today. They said it was not clear and undisputable that
Congress can--that the congressional deadline is incapable of
binding the States. Make it clear and indisputable. Pass Senate
Joint Resolution Number 4 and remove any doubt about that
deadline. Conservatives tend to like two things, Senator. They
like looking at the text, Article V has no deadlines, and they
normally like States' rights.
So why not allow Illinois, Nevada, and Virginia to deliver
us into the modern world where we, like other nations of the
world, have equal rights for women, as you said, Senator,
enshrined in our most foundational document?
Senator Padilla [presiding]. Well, thank you very much.
Wish we had time for many more questions and much more
discussion.
But on behalf of Chairman Durbin, I want to thank the
witnesses appearing before the Committee today. Today's hearing
makes clear that we have waited far too long for the
Constitution to finally explicitly recognize that equal rights
should not be denied on the basis of sex.
Tomorrow marks the beginning of Women's History Month.
There is no better time to move forward on this joint
resolution: Remove the arbitrary deadline that has held
equality at bay, and, once and for all, enshrine equality into
the United States Constitution. And with that, this hearing is
adjourned. Thank you.
[Whereupon, at 12:13 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
Submitted by Chair Durbin:
#Faith4ERA Campaign, statement................................... 114
American Constitution Society, statement......................... 124
American Federation of Government Employees, AFL-CIO, letter..... 126
American Federation of Labor-Congress of Industrial
Organizations, statement...................................... 127
Angus, Anne, letter.............................................. 128
Benenati, Audrey, MHA, letter.................................... 129
Bush, Hon. Cori, a Representative in Congress from the State of
Missouri, statement........................................... 130
California Commission on the Status of Women and Girls, letter... 133
Catholics for Choice, letter..................................... 135
Dahlen, Eric R., letter.......................................... 138
Democrats Abroad, letter......................................... 139
Denton, Davida, letter........................................... 141
Equal Rights Amendment North Carolina Alliance, statement........ 142
Equal Rights Amendment Project at Columbia Law School, statement. 145
Equality Now, statement.......................................... 152
ERA Coalition, statement......................................... 154
Feminist Front, statement........................................ 159
Generation Ratify, statement..................................... 161
Leading Women of Tomorrow, letter................................ 163
League of Women Voters of the United States, statement........... 166
Legal Momentum, statement........................................ 169
Maryland National Organization for Women, statement.............. 171
Mid-Day Women's Alliance, statement.............................. 173
National Federation of Democratic Women, statement............... 174
National Organization for Women, statement....................... 178
National Women's Political Caucus, statement..................... 180
Nourse, Victoria, statement...................................... 181
Ohio National Organization for Women, letter..................... 185
Pyron, Anne, email correspondence................................ 187
South Carolina Equal Means ERA, statement........................ 188
Suk, Julie C., letter............................................ 190
Vote Mama, statement............................................. 196
Women Lawyers on Guard Action Network, letter and attachment..... 197
Wright, Danaya C., statement..................................... 215
YWCA USA, letter................................................. 221
Zonta USA Caucus, statement...................................... 224
Submitted by Ranking Member Graham:
National Right to Life Committee, article........................ 226
National Right to Life Committee, report......................... 236
Submitted by Senator Cruz:
Concerned Women for America and Young Women for America, letter 1 257
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