100th Anniversary of ERA: Wendy Murphy Speaks at Seneca Falls, New York
SPEECH BY WENDY MURPHY, JD, AT SENECA FALLS, NEW YORK, JULY 22, 2023
This speech was given on the 100th anniversary of the ERA (Equal Rights Amendment). Speaker, Wendy Murphy, was introduced by Coline Jenkins, great-great-granddaughter of Elizabeth Cady Stanton.
Full Speech Text Below:
I am honored to be here today – alongside Coline Jenkins and the spirit of her great-great-great-grandmother, Elizabeth Cady Stanton. We gather today not only to talk about the Equal Rights Amendment but also to remember Elizabeth Cady Stanton and the others who stood with her in this sacred place in 1848 and dared to demand full equality at a time when women weren’t even considered persons under the law. We didn’t exist.
75 years later, in 1923, Alice Paul came to this same place and announced that she had written an Equal Rights Amendment to codify women’s equality in our Constitution. Today we mark the centennial anniversary of the Equal Rights Amendment but let’s be clear: we are not here to celebrate. We are here in protest against a nation that from its founding in 1776 has enslaved its women – first as non-persons and then as second-class persons – which is where we remain today.
For the entirety of women’s 247 years in this country – a country that dares to declare itself the greatest democracy on earth – women have been denied basic legal equality. Why? We vote and pay taxes. We fight in wars and die for our country. And we alone birth children so that our nation can exist. How dare anyone deny us the same rights as men!
Today I want to talk about three things: 1. Why is equality so important to women? 2. Who is preventing us from achieving equality? and 3. What are we going to do about it?
Let’s take them one by one.
- Why is equality so important to women? First the obvious. A nation that declares half its population “less than” the other half in the eyes of the law is by definition not a democracy. Second, and more importantly, inequality causes serious harm to women. Let me explain.
Without equality, all laws CAN be applied unequally to women. This is because the Constitution does not REQUIRE equal treatment of women.
So when people ask, “What rights do men have that women do not have”? Tell them that is the wrong question. Say this: “The correct question is what rights MUST, as a constitutional matter, be applied EQUALLY to women? The answer to THAT question is NONE. No rights and no laws MUST be enforced equally when applied to women because without the ERA women are not constitutionally entitled to equal treatment under ANY laws.
This applies to everything. From getting a dog license to Freedom of Speech and even the prohibition against slavery in the Thirteenth Amendment – NO laws MUST be applied equally to women.
This kind of inequality is harder to SEE than the inequality that appears in black and white – as when laws once said only men could vote. This kind of inequality is more insidious and more dangerous BECAUSE it is less visible. Indeed, unequal enforcement of laws is why the sex trafficking industry is so profitable even though nothing written in black and white in sex trafficking laws STATES that the law should apply differently to women. But without the ERA the Constitution ALLOWS sex trafficking laws to be less strictly enforced when women are victimized. A few more examples, without the ERA, laws against rape and domestic abuse need not be enforced EQUALLY on behalf of women. Without the ERA family courts can legally favor men in custody disputes, which is a serious problem right now in every state. Even equal pay laws are meaningless without the ERA because they need not be enforced equally. Without the ERA women are killed by men at very high rates – more than five a day. So, as you can see, we desperately need the ERA; it will literally save women’s lives.
- Who is preventing women from achieving full equality? At the moment, it is the Democrats – Joe Biden in particular – but before that, it was Donald Trump and the Republicans. This should come as no surprise because neither party has ever been a champion of women’s rights. It was a Democrat, Woodrow Wilson, who blocked women’s suffrage in the early 1900s. When Republicans were in power, they were no better because neither party supported women’s suffrage back then just as neither party supports the ERA now.
When the ERA was first filed with Congress in 1923, it didn’t go anywhere because, again, neither party supported it. Not until the Civil Rights era of the 1960s and 70s did Congress finally show an interest in passing the ERA, thanks to the indefatigable efforts of Alice Paul and the nonpartisan National Woman’s Party.
Congress finally passed the ERA in 1972 and sent it to the states for ratification. It needed 38 states to ratify but Congress tacked on a seven-year deadline at the last minute, and only 35 states ratified before time ran out. Many women gave up and said we had to start over.
But then in 1992, the 27th Amendment was adopted, and women cried foul. That Amendment – which deals with the timing of congressional pay raises – got 203 YEARS to ratify because it passed Congress in 1789. Women were furious because the ERA got only seven years. They decided to fight for three more states rather than starting over with a new ERA, after which they would argue in the courts that the seven-year deadline was unconstitutional. Numerous scholars supported this idea and said the ERA’s deadline was invalid because nothing in the Constitution gives Congress the authority to set deadlines. Plus, allowing Congress to restrict the amount of time the states get to ratify
gives Congress too much power. The authority to amend the Constitution is supposed to be evenly divided between Congress and the states – and the people speak through the states, so we need the division of power to be fair. Allowing Congress to set deadlines gives Congress the unilateral authority to decide whether our Constitution is amended.
We eventually reached 38 states when Virginia ratified the ERA in January 2020. Women were elated – until the Trump Administration blocked the ERA and wrote a memorandum saying the ERA could not be added to the Constitution because the deadline had expired. I immediately filed a federal lawsuit on behalf of women to force the government to add the ERA to the Constitution. Another lawsuit was filed after mine, on behalf of the last three states to ratify. Both lawsuits were opposed by Trump and were pending during the 2020 presidential campaign. Women were urged to vote for Joe Biden because he said he supported the ERA, but when he won, he continued fighting against the ERA in both lawsuits. Both lawsuits failed in front of Obama-nominated judges, and to this day, the Trump memorandum has not been rescinded by the Biden Administration.
You won’t find much news criticizing Biden for blocking the ERA, but you will find stories about how Democrats in Congress have filed resolutions to validate the ERA. The latest is a resolution to declare the ERA valid and compel the United States Archivist to put the ERA in the Constitution. Sounds great, right? Wrong – because Congress has NO authority to validate the ERA, remove the deadline, or compel the Archivist to do anything. But by promising to do something they have no authority to do, the Democrats can pander to women and distract us from focusing on the fact that the leader of the Democratic Party is currently denying 170 million women basic legal equality.
- Now we come to the most important question: What are we going to do about this? First, we have to acknowledge that the ERA’s validity will be decided by the courts regardless of what Congress says and does because courts always get the final word on what the Constitution means. Second, we have to accept that there is no role for Congress at this point, so whatever they say and do should be ignored. Third, we need to focus on the fact that the President of the United States CAN help, because he can direct the Archivist to do her job and put the ERA in the Constitution. Federal law mandates that the Archivist put new amendments in the Constitution the moment the last state ratifies. The President has the power to ensure that federal officials obey the law but Biden refuses to tell the Archivist to follow the law. Putting the ERA in the Constitution is not the same as validating it in court, but it gets us many steps closer to winning.
So how do we get the President to do what we want? First, we need to focus on next year’s presidential election and speak loudly and often about who we will support in 2024, and why. We must make clear that candidates who stay silent about the ERA or who refuse to promise women that they will put the ERA in the Constitution on day one of their administration will not get our vote.
Biden needs the women’s vote in 2024, as do the Democrats, so we have to leverage our votes and threaten not to vote for Biden, or ANY Democrat until Biden unblocks the ERA. This does not mean we support Biden’s opponents because they might be even worse for us. But don’t let anyone tell you that not supporting Biden means you are enabling the Republicans. All it means is that Biden must do what we ask or risk losing millions of votes. If Biden loses because he ignored our request, that’s his fault, not ours. Whoever wins will also face our wrath, and we will be equally fierce, regardless of party.
The issue of women’s equality is too important for us to vote for any candidate based on partisan politics. Nor should we vote based on how a candidate feels about abortion. Only 2% of women need abortions each year – 100% of women need legal equality every minute of every day – all year long. With the ERA in place, abortion rights will automatically be restored, so there’s no need to focus on abortion. In fact, abortion is a distraction from the ERA, and it has been since 1973 when Roe v. Wade was decided. Roe was an important victory, but it also helped derail the ERA. We can no longer allow ourselves to be dragged around like lemmings behind the abortion banner. Our philosophy must be – ERA first, everything else second. No compromises, no negotiations.
The two major parties prefer that we make this a left-right issue because that’s how they maintain women’s second-class status. But remember – NEITHER party truly supports the ERA, which means so long as we treat this as a left-right issue, we cannot win.
Only a handful of women’s rights leaders have ever understood the importance of rejecting the two-party duopoly and being fiercely nonpartisan. Chief among them was Alice Paul, who founded the nonpartisan National Woman’s Party in 1916 – after which women quickly won the right to vote. Alice was brilliant – she had multiple master’s and doctorate degrees — including a Ph.D. from the University of Pennsylvania – – and she was fearless and incorruptible. She was the most powerful women’s rights leader in America when the ERA finally passed Congress in 1972 BECAUSE she was nonpartisan – which is also why she had to be marginalized and the Woman’s Party had to be destroyed. How and why the Woman’s Party was dissolved is not well known – but it should be taught in every classroom because it is an important lesson in how powerful women can be, politically, if they unite as nonpartisans. Nobody would have bothered to dismantle the Woman’s Party if it were not an extremely effective source of political power for women.
I recently updated the Wikipedia page of the Woman’s Party to tell some of the truth about how powerful Alice Paul was, and why the Woman’s Party had to be dissolved. My edits were quickly removed. If you remember nothing else about what I say today, remember that.
I am delighted to say that I have been compared to Alice Paul – not because of my academic achievements but because of my nonpartisan and incorruptible commitment to women’s rights. Like Alice, I had to be marginalized. A couple of years ago a man from Harvard named John Esler spent an enormous amount of his time and a lot of his money during the Christmas season trying to discourage me from filing more lawsuits to validate the ERA. He even offered me hundreds of thousands of dollars if I worked on a certain strategy. I told him no. He gave money to other ERA advocacy groups, and they went off doing busy work. He then got a Harvard-affiliated law firm to write a legal memorandum recommending against the filing of more ERA lawsuits. I didn’t care – I filed more lawsuits anyway – on behalf of the fantastic ERA advocacy group, Elizabeth Cady Stanton Foundation. We have even more lawsuits planned if those don’t succeed. See – we, like Elizabeth Cady Stanton and Alice Paul – are not for sale. The ERA is not for sale. We will never trade or compromise on women’s equality and we will never stop fighting for the ERA.
While other groups waste their time on Congress and other silliness, we will stay focused on strategies that might actually work. Once the ERA is in the Constitution we can turn our attention to other matters, and our voices will be stronger BECAUSE of the ERA – on all the things we care about such as racism, child abuse, the environment, etc.
To succeed, we need to build a coalition of like-minded women and men who are smart enough to prioritize the ERA and not get distracted by the push and pull of political shenanigans. Remember, when the Fourteenth Amendment was adopted in 1868 it established Equal Protection of the laws for persons, but not women. Women were the only ones excluded. This is why we filed the ERA in Congress 100 years ago. We needed to FIX the Fourteenth Amendment to include the US because WE were left out. The Equal Protection Clause is the most important constitutional right of all because it affects every other law. Let me say that again – ALL laws and ALL rights are affected by the Equal Protection clause because the Equal Protection clause determines whether laws must be ENFORCED equally, and the Equal Protection clause does not require equal enforcement on behalf of women. Simply put, the current Constitution does not require equal treatment of women. The ERA does.
After more than a century of trying to fix the Fourteenth Amendment our work is still not done and it never will be until we unite as an incorruptible, fearless, and fiercely nonpartisan group, and dedicate ourselves to the single issue of equality for all.
We can call ourselves the New National Woman’s Party or the Union for Women’s Equality, it doesn’t matter. What matters is that we come together in solidarity AS women because the suffering we endure AS women is the same for all of us. So long as we refuse to be distracted by the things that others use to divide us, like race, ethnicity, etc., and use the power of our more than 150 million votes to demand the most basic of all human rights, legal equality, we WILL win our rightful place in the United States Constitution once and for all.
One of our country’s most important freedoms is that of free speech.
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