Gov. Janet Mills testifies before the Judiciary Committee on March 7 in support of legislation to amend Maine’s Constitution to make it clear that discrimination based on sex is illegal. The measure has failed to get the necessary two-thirds majority of legislative support to pass. Kennebec Journal photo by Joe Phelan

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

So says state Rep. Lois Galgay Reckitt, who remembers the frustration she faced in the early 1970s when her husband had to co-sign her car loan, even though she was working full time as a teacher, earning more than he did.

Her teaching career evolved into one of advocacy, serving for decades as the executive director of Family Crisis Services in Portland and now serving her second term in the Legislature, representing South Portland.

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, Reckitt said “it’s important that we make this kind of strong and clear statement that equality matters in Maine.

Her advocacy for a Maine ERA, currently in the form of LD 433 which has been carried over to the second session of the 129th Legislature for 2020, “feels like the end of a life’s journey for me,” she said.

Championing women’s rights has been the coda of her life, she said, and seeing an equal rights amendment written into Maine’s Constitution “would be the exclamation point at the end of my journey in the women’s movement. It’s ironic, because it was also the beginning of my journey” at the state and national levels.

At 74 years old and the sponsor of LD 433, Reckitt is eager to see Maine voters consider a constitutional amendment at a time when she sees public support rising for equal protections.

“For me, the thing I say the most often, is that we look back at suffrage and the heroines of suffrage, and most of them didn’t live to see it passed, including Susan B. Anthony. And I do not want to be the Susan B. Anthony of Maine, thank you very much.”

This, from a woman who did not take her husband’s name when they married, and had to get an opinion from the Attorney General’s Office to restore her maiden name to the voter rolls  just so she could vote.

While she remembers not being treated the same as boys when playing sports in high school and college, her activism wasn’t born of a single incident. “It was the drip, drip, drip of inequality,” she said.

“There’s some stuff in this world that is just wrong. It’s not a moral question. It’s just wrong.”

• • •

Reckitt is not alone is wanting to see Maine adopt an ERA. It is a measure supported by Gov. Janet Mills, the entire congressional delegation, many in the Legislature and dozens of groups working toward equal protections, including Equal Rights Maine, formed in 2016.

There are plenty of opponents, though, and through history Maine has not been supportive of state-level equality amendments.

Maine considered adopting an amendment to the state Constitution allowing women to vote seven times between 1873 and 1917, without success. But, when the 19th amendment to the U.S. Constitution passed through Congress in 1919, Maine was quick to ratify it.

An Equal Rights Amendment has been considered in Maine eight times since the ERA passed through Congress in 1972, the most recent effort made this year, all without success.

In 1974, Maine ratified the federal ERA, becoming the 31st state to endorse equal rights for women, but a decade later — in 1984 — a state-level ERA went to referendum only to be rejected by voters, 333,998 to 195,653.

It seems this is a state that supports constitutional protections for women at the federal level, but is reluctant to do so at the state level.

It’s a mixed record that U.S. Sen. Susan Collins finds surprising “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.” And, she said, “Mainers do not hesitate to elect women to high public office,” including electing Margaret Chase Smith as the first woman to serve in the U.S. House in 1940 and then the Senate.

“Maine has had more women senators than any other state, so Mainers have shown that they’re willing to trust women to lead them in very important ways,” Collins said.

Even so, over time women “have been categorized, pigeonholed and catalogued,” Mills said, and she wants to see that change.

When she was in law school, there was one female professor at the University of Maine School of Law. And, when Mills graduated in 1976 she had a hard time finding work in the private sector, and she became a prosecutor, eventually serving as Maine’s Attorney General before being elected the state’s first female governor last year.

Mills became active in the women’s movement early in her career because “I didn’t see the progress I wanted to see in credit, housing, other areas where women should have equality.”

In 1978, after winning her first murder conviction, she remembers the Portland Press Herald published a story in the society section under the headline “Prosecutor wore pale powder blue.”

She found it sadly amazing that what she wore was of greater importance than what she did.

The governor is deeply bothered that Maine has seen fit to amend the Constitution 173 times since 1833, and not a single one has been about equal rights.

ERA advocates in Maine are determined to see that change, and are gearing up for yet another go at a state-level ERA next year.

They will face a fight.

Concerns include forced co-ed sports, which could disadvantage girls.

That it will allow abortion on demand, and force taxpayer-funded abortions.

Women would be drafted into military service, against what one opponent called women’s “natural desire to be caretakers, not killers.”

Men and women would be forced to share bathrooms.

And, there is vigorous argument that equality is already afforded women under Maine’s Human Rights Act and under the 14th Amendment to the U.S. Constitution, making an ERA unnecessary.

These are similar arguments made by pro-family advocate Phyllis Schlafly when she 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 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. In 2015, same-sex marriage became legal nationwide by decision of the U.S. Supreme Court.

The ERA, which was never enacted, never factored in these decisions of change.

• • •

In 1972, following nearly two decades of civil rights clashes and successes, there was widespread public support of the civil rights movement and Congress overwhelmingly voted in favor of an Equal Rights Amendment to the U.S. Constitution. It was then ratified very quickly by 35 states, including Maine, but has not reached the required 38 states to pass into law.

While Republicans strongly supported the concept of equal rights from the passage of suffrage right through the early 1960s, as president, Ronald Reagan refused to endorse it, believing the 14th Amendment was sufficient protection for women. It was a change of position for him. As governor of California he supported the amendment, and the Golden State ratified it in 1972 while he was in office.

As a consequence of Reagan’s change in position, the GOP took equality rights out of its platform and the notion was adopted by the Democrats. Reagan’s position, according to Nancy Murdock of Equal Rights Maine, “flipped the demographics.”

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.”

It was, in its earliest form, intended to specifically mention women, but protections for former slaves had to come first, Murdock explained, 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.

• • •

“The state of Maine would benefit from having this amendment to the Constitution just because of that reason,” Murdock said, raising gender to the same plane as race and religion.

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.

When Mills testified in support of a state-based ERA in March, she said: While our state and nation unquestionably have made great progress in effectuating equal rights for women and men, that change has been piecemeal, intermittent and impermanent. And those laws, which cover discrimination only in specific areas — unemployment, housing, credit, public accommodation and education — are ephemeral, subject to repeal or change at the whim of any particular legislature of initiative.

State Rep. Allison Hepler of Woolwich agrees.

“What’s the importance of a constitutional amendment? It’s a lot harder to change constitutional amendments than it is to change laws,” she said. And having equality for women written into the Constitution would give legal experts more tools in the toolbox, she said, to drive equity.

A historian and teacher, Hepler has heard directly from female student-athletes about  disparity in high school and college sports. “You can see in their faces talking about how much they lived it, clearly,” with more resources devoted to boys than to girls.

While testifying in support of LD 433, Hepler mentioned that students in her U.S. history class at the University of Maine at Farmington really struggled to understand why the national ERA was never ratified, given some of the arguments that stalled it were against women serving in the military and forcing unisex bathrooms. “They have grown up with these two realities and their world has not collapsed,” she said, arguing Mainers must be given a chance to vote on a state ERA.

Murdock, who lives in Brooklin, is retired from a career in architecture and volunteers almost full-time on equality issues, became active in the women’s rights movement in 2016 after attending a women’s rights discussion at the Blue Hill Public Library.

“Because of my design background, 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 explained.

Asked whether she ever experienced discrimination because of her gender, Murdock said she had not. “I’ve been treated well. I’ve been very fortunate,” she said. The fight for equality is not for women who have been able to fight for themselves, who have had mentors and advocates to help them. The fight, she said, is “there are so many more of us who are unfortunate and who have been discriminated against in ways that they can’t overcome.” Including, she said, pay equity, housing opportunities, employment.

For opponents who argue that an ERA might actually harm women by forcing co-ed bathrooms and sports, Murdock doesn’t recognize the logic.

“There’s a lot of local control in our world, 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, she asked “not going to care about equal treatment under the law because of bathrooms?”

And, she said, the notion that an ERA would force women into a draft is not a current issue since the country hasn’t had a draft since 1973.

“I think at this point most young Americans would think it would be fairer for both boys and girls to be drafted” equally, based on current societal norms.

Women now account for 14% of troops, so where’s the evidence they’re opposed to serving? “They’re doing the job, and by any measure they’re in combat but they’re not paid for it and they’re not promoted for it and they’re not rewarded for it.” They should be, she said.

By far, the most vigorous opposition to enacting an ERA is over abortion, and what opponents say would be a vehicle to force taxpayer-funded procedures.

Murdock disagrees.

“How is that an equality issue? That is an emotional issue,” she said of abortion. “Given the fact that we have not had an ERA for the last 40 years and abortion has been legal,” she said, separates the issues. 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.

• • •

Alison Beyea, an attorney and executive director of the American Civil Liberties Union of Maine, said credit should be given to how far equality has advanced for women over the years, “and even though we have a woman in the Blaine House, it’s ridiculous to suggest that we don’t have a far way to go” on issues of pay equity and disparities between men and women, and also between white women and women of color.

“ERA would bring us one step closer to full equality,” she said.

Beyea’s earliest activism was in the fourth grade when she petitioned her school because she wasn’t allowed to play football with the boys. She won the right to play.

She admits she was a terrible athlete and didn’t know a thing about football, but “it wasn’t about the sport. It was a fairness issue.”

Beyea, who like many other successful women in Maine, said she had “a lot of mentors and a lot of women around me who have taught me the power of standing up for your right,” but she’s keenly aware others have not been so fortunate.

And, she said, “women in the white feminist movement have to acknowledge that we have not always been there for sisters of color. So, we have not in any way gotten where we need to go. In Maine, that’s something we need to take a lot of time to look at, and make sure we’re bringing everybody with us and not just a select group of women.”

Maine women have to look out for each other, she said. “That is what women do. It’s exciting to see so much energy in Maine around the equal rights amendment. It’s exciting to see a government speaking boldly and proudly about the ERA,” and she will remain a vocal proponent for passage. “It’s part of who I am. It’s part of how I was raised.”

Murdock said she is also seeing advocacy building at the state level, but she still holds out hope for federal action.

“A federal ERA would give us all the protection that whatever state we’re in, we’re equally protected against discrimination due to something we were born with. It wouldn’t matter what state you were raped in. Now, it matters a lot” because the laws differ from state-to-state.

“I believe that our democracy and fairness are based on a lawful society. I believe in a lawful society. I have confidence in it. And, if the law treats me differently than a man with all the same attributes, then it’s not fair.”

• • •

U.S. Rep. Chellie Pingree is part of a congressional group, which also includes Sens. Collins and Angus King and Rep. Jared Golden, to extend the deadline for ratification of the ERA “so we can really pass this on a federal level.

She also supports passage at the state level.

When first elected in 1992, Pingree remembers it as “an era when we felt like we were moving forward in a positive way on a lot of things.”

Now, she said, “it just feels like women’s rights are under attack, and 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’s heard from older constituents who fought for equal protections over the years and now feel like they’re losing them again. “What are we doing here?”

And, Pingree said, “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.”

The federal ERA was passed in 1972, with a 1979 deadline for a minimum 38 states to ratify. Through 1977, 35 states had signed on. During the Carter administration, the deadline was extended to 1982, but no more states took action.

Then, in 2017, Nevada voted to ratify. Illinois followed last year.

And, Virginia stands poised to become the 38th state to ratify in November, which could breathe new life into a federal ERA if Congress revises the deadline through a strategy that Collins said is called the “three state rule,” extending the date for ratification to bring in three more states.

There is another strategy, Collins said, called the fresh start strategy that she first proposed in 2000 to start the entire process over with a new amendment requiring congressional passage plus state ratification. Even though she sponsored it, Collins said she much prefers the three state approach. Which, with Nevada and Illinois now in the mix, is effectively a one state approach.

“We would have to pass the extension for that to work,” she said, but she is hopeful that the approaching centennial of suffrage will provide the energy and the will to see a fully-enacted ERA.

It would, she said, “because a clear and unequivocal statement in our Constitution, which is so vital to our democray, stating that no state can deny or abridge the rights of women, or the rights of anyone on account of sex. It’s important because it’s not just a statement of a national guarantee, but rather it would bind the states together. And, I think that’s important.”

In the meantime, with the amendment stalled at the federal level, 26 states have drafted ERA language in their constitutions, including Connecticut, Massachusetts, New Hampshire and Rhode Island.

• • •

Maine has tried eight times, including each of the last three legislative sessions, the last of which is LD 433.

At one point this year, the bill was just two votes short of passage, giving hope to advocates that they can push it through to referendum.

And, according to Murdock, if it doesn’t pass in 2020 it will be reintroduced in 2022.

Linda Nelson of Brooksville, a fellow member of Equal Rights Maine, is hopeful for passage, but acknowledges having the law on the books won’t be enough. There will have to be a culture change, “which usually doesn’t happen overnight. However, we can hope that when this happens, it will change quickly.”

The lack of equal protection for women in the law, Nelson said, “is not only repugnant and a denial of our human rights, it is economically and morally wrong. It creates an unequal playing field in terms of purchasing power, of improving our lives and those of our families, and it perpetuates the myth of women as somehow inferior to men.”

Doris Plumer of Bar Harbor, a nurse who testified in support of the most recent ERA legislation in March, summed it up: The time has come. We have waited long enough.

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.

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