WASHINGTON – To Alyssa Milano, the Kavanaugh-Ford hearing underscores a point many women have been arguing for nearly 100 years: The country needs an Equal Rights Amendment.
The actress and activist, who helped launch the #MeToo movement with a tweet this time last year, told USA TODAY that an ERA would have helped Christine Blasey Ford, who testified in an emotional Senate Judiciary Committee hearing last month that she was sexually assaulted by Brett Kavanaugh in high school. Kavanaugh denied those allegations and others and was sworn in Saturday as a Supreme Court justice.
“When we are not in the Constitution for any protections except for the right to vote, I think that it allows for a perspective of ‘lesser than,’ ” Milano said. “It will just put women on an equal footing in the legal system, particularly in areas where women have historically been treated like second-class citizens, especially in cases of domestic violence and sexual assault.”
The string of #MeToo scandals involving Hollywood, congressional and newsroom leaders had reignited interest in constitutional protections against sexual discrimination when the ugly drama over Kavanaugh’s confirmation poured gasoline on it.
It showed millions of women again “that the systems in the country do not represent or defend them,” said Carol Robles-Román, co-president and CEO of the ERA Coalition.
“That is why the next battle must be the one to amend the Constitution, to put women in it,” she said.
Elected officials have made limited progress in changing laws in the wake of #MeToo scandals. An ERA, advocates said, would make the most definitive difference because it would not be subject to the whims of legislators and presidents.
The amendment may be just one state away from ratification after Nevada ratified it in March 2017 and Illinois in May. Even if it’s ratified by a 38th state, there will still be giant legal hurdles for the amendment. Advocates said the record number of women running for office and the possibility of a Democratic wave election in November could help push it forward.
Voters elected more new women to Congress in 1992 than in any previous decade after Professor Anita Hill testified on sexual harassment allegations against Clarence Thomas during his confirmation to the Supreme Court. Rep. Carolyn Maloney, D-N.Y., an ERA advocate who was among those elected that year, said the Kavanaugh-Ford hearing will once again galvanize women to vote because so many women are outraged and identify with Ford.
“Anita Hill brought 'The Year of the Woman,' ” Maloney said. “I’d say Dr. Ford and Kavanaugh are going to bring 'The Decade of the Woman.' Too many women in this country have the same story as Dr. Ford where they were attacked, laughed at, shamed, ridiculed.”
Milano, who came forward with her own story of sexual assault, attended the Kavanaugh-Ford hearing with other ERA advocates – including Maloney and Rep. Jackie Speier, D-Calif. – to show support for Ford. When she lobbies for an ERA, she said, she will point to this event as part of her pitch.
“I will say that it is time that sexual assault victims that come forward to have the complete legal support of our Supreme Court,” she said. “Maybe the most important thing that we can do post the #MeToo era … is give women equal rights under our Constitution.”
Here’s an update on the ERA:
What would it do?
The ERA would prohibit denying equal rights on the basis of sex in the same way the United States prohibits discrimination on the basis of race, religion and national origin. It would give women new legal recourse on issues including pay equity, gender-based violence and pregnancy discrimination. It would protect men facing gender discrimination, too.
Congress passed the amendment in 1972, but it wasn’t ratified by the requisite number of states – 38 – by an extended deadline in 1982. Conservative groups argued it was unnecessary and would overturn laws or programs that benefit women.
Four state legislatures voted to rescind their ratification (Kentucky's rescission was vetoed). South Dakota passed a resolution declaring its ratification void if the national deadline passed.
There's no case law saying a ratification can be "undone," according to Winston & Strawn, a law firm that supports the ERA. A federal court held in 1981 that a state could rescind its ratification of the ERA, but the Supreme Court vacated the decision once the ERA deadline passed and the appeal became moot, according to the firm.
It's unclear how Kavanaugh would vote on such issues. He didn't give a definitive answer when ERA advocate Sen. Dick Durbin, D-Ill., asked in writing whether Kavanaugh believes the ERA should be added to the Constitution.
Kavanaugh's written response: "It would be a violation of judicial independence for me to opine on political matters in this context."
Most Americans mistakenly say men and women are already guaranteed equal rights in the U.S. Constitution, according to polling commissioned on behalf of the ERA Coalition/Fund for Women’s Equality.
The #MeToo movement made sexual equality part of the national conversation, drawing attention to the fact that the ERA hasn’t been ratified, said Bettina Hager, the ERA Coalition’s D.C. director.
Also driving renewed interest in an ERA is President Donald Trump’s comments about “being able to sexually assault women with impunity,” Speier said.
“There’s no question that women are fed up, and rightly so, and the laws have not protected them,” Speier said. “The ERA becomes part of that whole discussion.”
Which state could be the 38th?
The question fuels a friendly cross-border rivalry.
Will it be North Carolina? “We really know how to fight,” said Marena Groll, co-president of the ERA-NC alliance.
Or Virginia? “I’m like, ‘Bring it on, it’s going to be us,’ ” said Kati Hornung, coordinator of VA Ratify ERA campaign.
Those states, along with Florida and Arizona, have active ratification movements, according to the ERA Coalition.
In Virginia, the measure died in a House committee and was defeated in a Senate committee in February. Because the state has off-year state elections, proponents will have to either wait for a new legislature in 2019 or change current legislators' minds.
The other states have elections this year.
“For them, the moment of truth could come with how does their legislature look in January," Hager of the ERA Coalition said.
Democrats have pushed legislation to either remove the ratification deadline or start over, but both proposals have languished.
Speier and Maloney, who sponsored and co-sponsored those bills in the House, look to the midterm elections to help give them the votes they need.
“If women are elected and like-minded men, you’ll have the votes to pass it,” Maloney said. "You'll have the votes to enact it."
Speier’s resolution would strike the deadline in the amendment, and Maloney’s would start over with no deadline.
“If we could get there quicker, then we should get there,” Speier said. “It would save a lot of discrimination from taking place.”