At least three protesters disrupted a Senate hearing Tuesday on the Equal Rights Amendment, shouting at senators that the proposed amendment has already been ratified.
Sen. Mike Lee, R-Utah, posted video of the outbursts on his personal Twitter account showing police wrestling one woman out the door and another yelling over Sen. Lindsey Graham, R-S.C.
“Women die every day because the ERA has been ignored. It is already ratified and ready. We can do it today. All Biden needs to do is pick up the phone and make a phone call to the constitutional archivist who will in fact ratify and publish the ERA,” the first woman said.
“Poor women have no choice. They have been left out of this process.”
The Senate Judiciary Committee hearing was titled “The Equal Rights Amendment: How Congress Can Recognize Ratification and Enshrine Equality in Our Constitution.” Witnesses included legal scholars, a college student and the lieutenant governor of Illinois. It was the first Senate hearing on the ERA since 1984.
Last month, Sens. Ben Cardin, D-Md., and Lisa Murkowski, R-Alaska, introduced a bipartisan resolution declaring the ERA fully ratified as the 28th Amendment to the Constitution. Rep. Ayanna Pressley, D-Mass., introduced a similar resolution in the House.
At the hearing, the first outburst occurred as Jennifer Braceras, director of Independent Women’s Law Center at the Independent Women’s Forum, gave her testimony. The organization opposed the ERA.
A short time later, a second protester stood up, shouting, “This is illegal. This is a fraud. Women have rights right now.”
Graham, who can’t be seen on Lee’s video, can be heard in an exchange with a third protester saying a constitutional amendment would mandate that biological males can take over girls’ sports.
“That’s why you have failed so miserably,” Graham said as the woman yelled at the panel that the ERA has been “fully ratified. And, yes, Congress doesn’t want that.”
“Have a good day,” Graham said as police escorted the protester from the room.
“I understand that I need to be quiet,” the woman said. “I understand that you do not like us to express our opinions.”
Congress approved the Equal Rights Amendment in 1972, including a seven-year deadline for ratification by three-fourths of the states. By 1977, the number stood three short of the 38 required. Congress extended the deadline to 1982, but no additional states acted by the deadline.
Since then, three states have ratified the amendment — Nevada in 2017, Illinois in 2018 and Virginia in 2020. But five states — Nebraska, Tennessee, Idaho, Kentucky, and South Dakota — revoked their earlier support before the original 1979 deadline, leaving the issue in a legal tangle. Utah has not ratified the ERA.
The amendment reads, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
The late Supreme Court Justice Ruth Bader Ginsburg said the process would need to begin from scratch if the amendment were to be ratified. At a Georgetown Law School event, she said, “I was a proponent of the Equal Rights Amendment. I hope someday it will be put back in the political hopper and we’ll be starting over again collecting the necessary states to ratify it.”
During his questioning of the witnesses in the hearing, Lee focused on what standard of judicial review courts would apply to the ERA, strict scrutiny or intermediate scrutiny.
Braceras said advocates for the amendment would argue it requires strict scrutiny, which courts use to analyze policies regarding race. She said that is 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 place where biological differences matter, such as sports,” she said. “Sex should not be treated the same as race under the Constitution,” Braceras said.
Intermediate scrutiny leaves space for courts to consider biological differences where they matter, she said.
Lee asked how strict scrutiny would affect prisons or shelters for women or public facilities like restrooms.
“What might it 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?” he said.
Braceras said courts have made clear that prisons can’t separate based on race even if that would prevent gang violence, adding that is the right standard.
Applying that same standard to men and women would mean having coed prisons, she said. “You could never separate inmates on the basis of sex,” she said.
Lee said protections now in place for women would then “be at stake. They would be jeopardized. They would be threatened and in many cases undone from judicial order.”
In a statement, Zakiya Thomas, president and CEO of the ERA Coalition and Fund for Women’s Equality, said it’s past time to acknowledge the ERA is valid and enforceable today.
“More than 70 percent of Americans think we already have sex equality in our Constitution— but even after 100 years of struggle, we don’t,” she said.