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The 27th Amendment has never been fully ratified, almost a century after an Equal Rights Amendment for women was first proposed. How a proposal in the state legislature aims to resolve the issue in Maine.

A century ago this month, Maine ratified the 19th Amendment, which gave women the right to vote after decades of petitions, protests and righteous agitation. But by 1919 some of the leaders of the national suffrage movement weren’t around to see the triumphs. “Most of them didn’t live to see it passed,” says state Rep. Lois Galgay Reckitt. “Including Susan B. Anthony.”

State Rep. Lois Reckitt first testified on behalf of the ERA in 1973. She’s not done yet. Photo by Heidi Kirn

Reckitt is trying her hardest to avoid that fate herself and arguably, her fight for women’s rights is even more frustrating than Anthony’s. Reckitt, 74, is the sponsor of a state bill (not the first) for a Maine Equal Rights Amendment that represents a way to bypass the long-stymied national effort to amend the U.S. Constitution to affirm equal rights for women. That national campaign has been a tortuous process now approaching its own centennial and as time has dragged on, 26 states have done as Maine has, drafting ERA language in their constitutions. Like suffrage, the ERA is something that seems both fundamentally logical and also, because it remains unfinished business—despite being passed by Congress 47 years ago, it has yet to be ratified by three-fourths of the states—increasingly Quixotic. For Reckitt and others in Maine, the fight for the ERA is far from done. And she wants to be around to see it pass. “I do not want to be the Susan B. Anthony of Maine, thank you very much,” she says.

This amendment is a simple enough statement: Equality of rights under the law may not be denied or abridged by the State or any political subdivision of the State based on the sex of an individual. Her bill, LD 433, has been carried over to the second session of the 129th Legislature for 2020 after passing overwhelmingly in the Senate and by a majority in the House but seven votes shy of the two-thirds majority needed to send it to the voters of Maine to be enacted into law. Not a single Republican in the House supported it in the final vote, but at one point this year, supporters say the bill was just two votes short of passage.

Reckitt’s bill is supported by the Democrats in the Legislature and by dozens of groups working toward equal protections, including Equal Rights Maine, a group formed in 2016. Congresswoman Chellie Pingree wants it to pass. Sen. Susan Collins is in favor of the ERA. Gov. Janet Mills really wants it to pass. She describes herself as deeply bothered that Maine has seen fit to amend the Constitution 173 times since 1833, but not a single one of those amendments has been about equal rights. And Maine doesn’t have the best track record historically on women’s rights; while the state moved fairly quickly to ratify the 19th Amendment 100 years ago, it had considered (and rejected) an amendment to the state Constitution allowing women to vote seven times between 1873 and 1917. An Equal Rights Amendment has been considered in Maine eight times since Congress passed the ERA in 1972, including once when it was put to the voters directly, in 1984 (and failed by a vote of 333,998 to 195,653) and the most recent effort, Reckitt’s.

In this 1982 Associated Press photo, supporters of the ERA encircle the flagpole at the Cumberland County Courthouse. They were later arrested.

Pingree, first elected to public office in 1992, remembers that time as “an era when we felt like we were moving forward in a positive way on a lot of things.” Now, she says, it feels like women’s rights are under attack. “Having a state-based ERA would really solidify this idea that Maine is taking strong action to say we care about the rights of women in our state, and whatever is going on around us in the political sphere, we’re going to stand strong.” She regularly hears from older constituents who fought for equal protections over the years and are now asking, what’s happening to those rights?

It’s not just older residents wondering. When she spoke in support of LD 433 this spring, Allison Hepler, who represents Woolwich in the Legislature, said it baffles the students in her U.S. history class at the University of Maine at Farmington that the ERA was never ratified, given that some of the arguments that stalled it were that women might be forced to serve in the military and use unisex bathrooms. Women now comprise 14 percent of the military, and unisex bathrooms are a growing trend. “They have grown up with these two realities and their world has not collapsed,” Hepler says. For some young people it’s a surprise that America didn’t manage to enact such a basic protection for women decades ago. “I think young women grow up with sort of a very different idea, a stronger sense of equality now,” says Pingree. “And when they face the reality that the laws don’t protect them, it’s shocking.”

But proponents, including Alison Beyea, the executive director of the American Civil Liberties Union of Maine, feel the ERA may finally be within their grasp. “It’s exciting to see a government speaking boldly and proudly about the ERA,” Beyea says. That includes the governor, who brought up the need to pass the Maine ERA at a tea at the Blaine House in August to celebrate the suffrage anniversary. She also spoke in support of the amendment in front of the Legislature in March, arguing that while Maine has made great progress in equal rights, it has been “piecemeal, intermittent and impermanent.” Laws that cover discrimination only in specific areas, like unemployment, housing, credit, public accommodation and education are “ephemeral, subject to repeal or change at the whim of any particular legislature of initiative,” she testified.

Mills, Maine’s first female governor, has faced inequality throughout her career. When she was in law school, there was one female professor at the University of Maine School of Law. She had a hard time finding work in the private sector after graduating in 1976. So she became a prosecutor. After winning her first murder conviction in 1978, she remembers the Portland Press Herald published a story in the society section under the headline “Prosecutor wore pale powder blue.” She found it amazingly sad that what she wore was of greater importance than what she did. She became active in the women’s movement precisely because she “didn’t see the progress I wanted to see.”

“I think young women grow up with sort of a very different idea, a stronger sense of equality now. And when they face the reality that the laws don’t protect them, it’s shocking.”

Reckitt’s activism also wasn’t born of a single incident. “It was the drip, drip, drip of inequality,” she says. She remembers not being treated the same as boys when playing sports in high school and college. When she married, decades ago, she did not take her husband’s name. This mild rebuke to the patriarchy meant she had to get an opinion from the Attorney General’s Office to restore her maiden name to the voter rolls so she could vote. When she was working fulltime as a teacher and making more than her husband in the early 1970s, she faced the frustration of needing him to co-sign her car loan. By 1973, she was testifying in front of the Maine Legislature on behalf of an ERA. “There’s some stuff in this world that is just wrong,” Reckitt says. “It’s not a moral question. It’s just wrong.”

She left teaching and served for decades as the executive director of Family Crisis Services in Portland. She’s a co-founder of the National Organization for Women in Maine, the Maine Coalition for Human Rights, Maine Right to Choose and the Maine Women’s Lobby. This is her second term in the Legislature, where she represents South Portland.

Adoption of a state level Equal Rights Amendment would protect Maine women against the fluctuations of time and the fluctuations of the judicial system, she says. Everyone in this state has a mother, some have sisters, some have daughters. This is important, she says, to every citizen of Maine, not just women. Or it should be.

Illustration by Taylor Roberge

TICK TOCK

The 146-year history of women asking for—and not receiving—legal equal rights in Maine:

 

Click image to enlarge.

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OPPOSITION

U.S. Sen. Susan Collins finds it surprising, and puzzling, that Maine has not yet been able to pass its own ERA, “because this is a state that has been very open to women leadership, as has been shown by women who run major corporations in our state,” she says. Only a few states have elected three women senators in their history, and Collins points to the fact that Maine’s women senators, herself, Olympia Snowe and Margaret Chase Smith, represent the highest collective number of years served by women in the Senate. “Mainers have shown that they’re willing to trust women to lead them in very important ways,” Collins says.

Opponents of the Maine ERA say equality is already afforded women under Maine’s Human Rights Act and under the 14th Amendment to the U.S. Constitution, making it unnecessary. But that argument overlooks the long legislative history of the ERA, including its passage by a two-thirds majority in Congress in 1972, 49 years after activist Alice Paul wrote the amendment and it was first introduced to Congress.

In order to amend the U.S. Constitution, the ERA had to be ratified by at least 38 states (three-quarters of these United States). The deadline was 1979. Thirty-five states did so fairly quickly, including Maine in 1974. When it wasn’t met, the deadline was extended to 1982 (Maine’s Sen. Bill Cohen, a strong supporter of the 27th Amendment, was a key force behind that extension in 1978). Currently 37 states have ratified the ERA. But if that tantalizingly close goal of 38 is met, Congress would still have to approve a further extension.

Elizabeth Mitchell, wearing an ERA pin on her right lapel, in 1982, with colleagues Rep. John Diamond (L) and Rep. John Martin, just after she was elected floor leader of the Maine House of Representatives. A staunch supporter of the ERA, Mitchell was a key player in getting a state ERA amendment in front of voters in 1984. It failed. Photo courtesy of the Portland Press Herald

Why did it stall, nationally? Pro-family advocate Phyllis Schlafly devoted much of her energies to traveling the country convincing states not to ratify the ERA. Schlafly came to Maine in the 1970s and again in 2007. Warning that an ERA would force courts to approve same-sex marriage and deny government benefits to housewives and widows, Schlafly also told a Bates College audience during her second visit to Maine that there was no such thing as marital rape. “By getting married, the woman has consented to sex,” she said, “and I don’t think you can call it rape.” Marital, or spousal, rape is now illegal in all states. Same-sex marriage was legalized in Maine in 2009, repealed at referendum later that year and approved at referendum in 2012. Schlafly died in 2016, the year after same-sex marriage became legal nationwide by decision of the U.S. Supreme Court.

Some point to the election of Ronald Reagan in 1980 as a major factor in stopping the ERA from ratification. When he was governor of California, he supported the ERA, and the Golden State ratified it while he was in office. This was in keeping with the Republican position in support of the concept of equal rights. (Maine’s own Margaret Chase Smith gave a persuasive speech in support of the ERA on the Senate floor in 1950, saying “I think that the most effective argument for Equal Rights is summed up in three simple words—‘Women are people.’ Think that over just a little and you will see the justice and overwhelming merit of the Equal Rights measure.”) But Reagan changed his position as president, saying that he believed the 14th Amendment was sufficient protection for women. The 14th Amendment, adopted in 1868 as part of the nation’s rebuilding process post-Civil War, guarantees equal protection of “persons,” making it illegal for states to “deprive any person of life, liberty, or property, without due process of law.”

In August 1980, supporters of the ERA march in Portland. Holding the banner are Chris Torraca (L) and Kate McQueen. Portland Press Herald photo by Gordon Chibroski

As a result of Reagan’s reversal of position, the GOP took equality rights out of its platform and the notion was largely adopted by the Democrats. According to Nancy Murdock of Equal Rights Maine, Reagan’s position “flipped the demographics.” Why is the 14th Amendment insufficient? Murdock explains that it was, in its earliest form, intended to specifically mention women, but protections for former slaves had to come first and protections for women were struck. As a result, when a discrimination case is considered, there is higher scrutiny for violations based on race and religion, and less for sex. Murdock says gender should be on the same plane as race and religion. “The state of Maine would benefit from having this amendment to the Constitution just because of that reason,” Murdock says.

There are, she points out, plenty of state and federal laws that offer many protections based on gender, but laws can easily be changed by political impulse and can be inconsistently enforced. Constitutional amendments are more strongly cemented. Hepler agrees. “It’s a lot harder to change constitutional amendments than it is to change laws,” says the state representative from Woolwich. Having equality for women written into the Constitution would give legal experts more tools in the toolbox, she said, to drive equity. She’s still seeing her students face inequity, like the female student athletes who tell her about disparities in the resources for women’s sports in high school and college. “You can see in their faces talking about how much they lived it, clearly,” Hepler says.

Judy Lloyd didn’t remember exactly when this photo was taken, but according to the Portland Press Herald’s archives, it was on August 26, 1981, Women’s Equality Day. What the Brunswick resident does remember is that she walked 15 miles that day, most likely from Yarmouth to Portland along Route 1. The occasion was a rally for the ERA, possibly the U.S. version or one of the many proposed state amendment for equal rights. Lloyd still has that t-shirt (it spells out NOW, the National Organzation of Women) and at 69, she’s still a feminist. She protested the nomination of Brett Kavanaugh to the U.S. Supreme Court. She’s been to anti-Trump marches. She’s also still an ardent supporter of the ERA. But, “I’m not a ringleader anymore.” She used to work at the Family Crisis Center with state Rep. Lois Reckitt, who sponsored the bill for the current proposed amendment to the Maine Constitution. “She’s done a lot,” Lloyd says. It amazes her that in all this time since this photo was taken, the ERA still hasn’t passed. “It would really be nice to be recognized as a human being in the Constitution,” Lloyd says. —M.P.

Murdock, who lives in Brooklin, is retired from a career in architecture and volunteers almost full time on equality issues. She became active in the women’s rights movement in 2016 after attending a women’s rights discussion at the Blue Hill Public Library. She brought her design background to the fight. “My thinking was, how do you design yourself out of a problem like this, the problem being the ERA wasn’t ratified and for terrible reasons,” she says. She’s been fortunate to escape gender discrimination, but points out the fight for equality is for “the many more of us who are unfortunate and who have been discriminated against in ways that they can’t overcome.” That includes pay equity, housing opportunities and employment, she says.

She dispenses quickly with the arguments about the ERA forcing co-ed bathrooms and sports as illogical. “There’s a lot of local control in our world,” she says. “And there should be sports for girls and sports for boys, bathrooms for girls and bathrooms for boys. That’s just part of our culture. I think that’s just something that gets worked out.” Are we really “going to not care about equal treatment under the law because of bathrooms?” she asks. Furthermore, the U.S. hasn’t had a draft since 1973. But if it did, Murdock theorizes that current societal norms suggest that, “at this point most young Americans would think it would be fairer for both boys and girls to be drafted.” In other words, the opposition is rooted in outdated thinking.

But one issue stands out as the focus of most of the opposition to the ERA: abortion. Opponents claim it would be a vehicle to force taxpayer-funded procedures. Murdock disagrees. “How is that an equality issue?” she says. “That is an emotional issue.” She points out that abortion has been legal for decades, without the assist of an ERA. What the ERA would do, she said, is guarantee equality in reproductive health care, but since only women can bear children, that care would include pregnancy choice. But opponents, including the Roman Catholic Diocese of Portland and the Christian Civic League of Maine, strongly oppose the measure because of what they see is a lack of protection for unborn children and required public funding for abortion procedures. Rhode Island got around this issue when it enacted a state-level ERA in 1986 by specifically addressing abortion in the law: Nothing in this section shall be construed to grant or secure any right relating to abortion or the funding thereof.

Supporters at a Women’s March in Bangor in 2018. Photo courtesy of Sherry Streeter

That’s a compromise in the absence of federal action. But some hope remains for the 27th Amendment to be ratified. Pingree is part of a congressional group, which also includes Collins, Sen. Angus King and Rep. Jared Golden, advocating to extend the deadline for ratification of the ERA. After that deadline was extended to 1982, for years no more states took action. Then, in 2017, Nevada voted to ratify. Illinois followed in 2018. And, this month, Virginia stands poised to become the 38th state to ratify. Hitting that magic number would presumably breathe new life into a federal ERA if Congress acts to revise the deadline. Collins was a sponsor of one strategy to do so, the “fresh start” strategy first proposed in 2000, which would restart the entire process, but now prefers the three state approach, extending the date for ratification to bring in those last three states. Collins is hopeful that the approaching centennial of suffrage will provide the energy and the will to see a fully enacted ERA. She wants what she calls “a clear and unequivocal statement in our Constitution” of women’s equality. “It’s important because it’s not just a statement of a national guarantee,” she says. “But rather it would bind the states together. And, I think that’s important.”

In the meantime, the Legislature plans to take up Reckitt’s bill again in 2020. It could be just a matter of making sure every Democrat shows up for the vote (four were absent) and swaying a few of the Republicans and Independents who voted against it in the House in May. It’s been a partisan issue in the House, but in the Senate, five Republicans crossed the aisle to vote yes. If it fails again, Murdock says she expects it will return in 2022. Reckitts certainly isn’t giving up. “It feels like the end of a life’s journey for me,” she says.

Judith Meyer is the executive editor of the Sun Journal, Kennebec Journal and Morning Sentinel, is vice president of the Maine Freedom of Information Coalition and a member of the Legislature’s Right to Know Advisory Committee.

Photo courtesy of the Margaret Chase Smith Library

WHAT MARGARET SAID

Maine Sen. Margaret Chase Smith advocated for the Equal Rights Amendment on the floor of the Senate on Jan. 23, 1950. It was proposed every year from 1923 until 1972, when Congress finally passed it. It has not yet been ratified for enactment by the required 38 states.

Mr. President:

I am for the proposed “Equal Rights” amendment to the Constitution for the very reason that some women are against it. Throughout my service in Congress, I have clung steadfastly to the belief that when women demand equal rights with men they must give up their special feminine privileges. I have urged that on all women’s legislation because women are just as subject as men to the old saying that “you can’t have your cake and eat it too.”

But in being for this “Equal Rights” measure, I can appreciate some of the difficulties. These difficulties must be overcome. It may take time. But the more we delay, the harder it will be ever to achieve the objective.

This is not a “petticoat” measure. It is a measure designed to give fuller meaning and expression to the traditional American way of life. We have heard a great deal about Civil Rights and no discrimination against any one because of race, color or creed. I would add one thing to that no-discrimination code of Civil Rights—sex. I say that there should not be any discrimination against any person because of race, color, creed—or sex. But I say with equal conviction that neither race, nor color, nor creed, nor sex must be permitted to be the basis for agitation for special rights and special treatment under the guise of no discrimination and equality. There is a danger of losing balance on this subject and in our zeal for equality to unconsciously demand and grant special treatment and privileges over and above equality.

I think that it is high time that we stopped thinking of women as being second class citizens—as people with less qualifications and secondary in priority. There should be no such thing as priority for or against women or men.

I think that the most effective argument for Equal Rights is summed up in three simple words—“Women are people.” Think that over just a little and you will see the justice and overwhelming merit of the Equal Rights measure.

In closing, I want to pay my respect and express my appreciation to those Senators who are going to vote for this measure even though they do not believe in Equal Rights. In the first place, I respect their opinion even though they differ with me. But more than that I admire the fair and unselfish attitude that they have taken by saying that they are voting for this measure so that it can be referred to the states for ratification or rejection to give the people of America a more direct vote and voice on this issue. Some of these Senators will fight Equal Rights back in their states on the question of ratification or rejection. But by male standards, they will have manfully faced an issue rather than bottling that issue up in Congress without the states having had an opportunity to voice themselves on this proposal.

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