INTRODUCTION

The exclusion of women from the U.S. Constitution was not accidental.

Equality has been deliberately denied. For more than two centuries since this country was founded, men have refused constitutional recognition of women's legal and civil rights. Three occasions when this was done:

• In 1776, Founding Father John Adams denied his wife Abigail's demand that the constitution of the new nation "put it out of the power of the vicious and lawless to use [women] with cruelty and indignity and impunity," as English law allowed. His response? "Depend upon it," he wrote, "We know better than to repeal our masculine systems."

• In 1868, after the Civil War, Congress adopted the 14th Amendment that guaranteed to all "persons" the right to equal protection under the law. However, in the second section, which determined the number of representatives that each state would be due in Congress, use of the words "male citizens" for the first time marked the explicit, intentional exclusion of women from the constitution. The 15th Amendment, passed in 1870, extended to all men -- but not women -- the right to vote. The fifty-year campaign to secure a guarantee of women's right to vote resulted in the ratification of the 19th Amendment in 1920. This completed the 15th Amendment, but left the 14th Amendment with no counterpart for women. To enable women to use their vote to remedy this discrimination, suffragist leader Alice Paul drafted the Equal Rights Amendment (ERA) and began the campaign for ratification.

• In 1982, ratification of the Equal Rights Amendment was denied by state legislatures in 15 states.

Today after 200 years of living under the U.S. Constitution, women continue to suffer discrimination in employment, insurance, health care, education, social security and pensions, the military, the justice system and in many other areas.

A Constitutional Equality Amendment is essential because, without clear acknowledgment of women's right to equal protection of the law, courts are free to rule that sex discrimination is not unconstitutional. Laws to prevent sex discrimination are not enough. The bleak reality is that hard-won laws against sex discrimination do not rest on a solid constitutional foundation and may be weakened by amendment, repealed outright, enforced inconsistently, or simply ignored. Women seeking enforcement of these laws must not only convince the court that discrimination has occurred, but that it matters. As legal scholar Catharine McKinnon said, "It is not difference that is important, but the difference difference makes." We have no illusions that passage of an equal rights amendment would immediately eliminate all discrimination against women that exists in our society. It is however a big step toward that end, and it would give women the necessary tools to insure our rights under the law.

The challenge is to construct and work for an amendment to the constitution that will address not only when men and women are similarly situated, but also when women are disadvantaged by a unique aspect of our lives, such as child bearing. The amendment must contain all the issues we wish to address specifically as well as dictate the standards by which it would be interpreted by the courts.

Many people think that pursuit of such an equal rights amendment is an exercise in futility, that an amendment that explicitly covers reproductive rights and sexual orientation will never pass. History tells us otherwise. As the women's suffrage campaign showed, ideas which are initially upopular can become accepted with time and education.

But we must not be naive and think that because our cause is just, those in power will be persuaded by our arguments on the merits. Make no mistake about it -- discrimination pays. When women are paid only 74 cents for every dollar paid to men, someone is pocketing the other 26 cents.

The struggle to pass a Constitutional Equality Amendment will be a long and arduous one -- one that may not see victory in the foreseeable future. But the fight for women's rights is worth the struggle. If we are to change the world for generations of women yet to come, we must embrace this struggle with vigor.

The enclosed materials are for the purpose of acquainting activists with the history of the ERA and the direction the National Organization for Women has taken to discuss and develop a long-term strategy to ratify a Constitutional Equality Amendment. As we begin it is important to recognize that amending the constitution is a long process and most of the procedure is beyond our control. Ultimately the amendment will be written by elected representatives, not by us, and therefore the electoral politics portion of the action kit must be paramount in our strategy.