CLASS, CARE, AND THE EQUAL RIGHTS AMENDMENT

With the Supreme Court on the verge of overruling Roe v. Wade and Planned Parenthood v. Casey—eliminating the constitutional right of women to control their bodies and to stand as equals in our society—the importance of enshrining the principle of sex equality in the Constitution cannot be overstated.1 It is essential that the Equal Rights Amendment (ERA) be incorporated as the Twenty-Eighth Amendment.2 Still, any push for

the ERA ought also to acknowledge its limits, particularly for poor and working-class women, and women of color, who have long confronted the often-hollow promise of formal equality. Indeed, at its inception, the amendment was not a central goal of most workingclass women's movements; rather, significant tension existed between the reformers who originally pushed for the ERA, on the one hand, and labor feminists, on the other. Over time, the divide narrowed and non-elite women came to support the ERA, but the amendment continued to represent a limited part of working-class women's aspirations for change. Understanding this history helps illuminate the limits of existing sex equality jurisprudence and offers some inspiration for how we can work not only to ratify the ERA but to transform the Constitution into a source for real equality for all women.

I.
As historians have documented, from the 1920s to the 1960s a great divide existed between "labor union women" and their progressive allies on the one hand and "ERA advocates" on the other. 3 Women in the labor movement opposed the ERA not because they didn't believe in equality but because they thought the ERA was elite-driven and eliteserving. 4 Indeed, many of the original proponents of the amendment were elite, and were not supportive of broader labor rights. 5 That is, the women who led the National Women's Party (NWP) and who were the driving force behind the amendment rarely favored legislative measures designed to enhance labor standards or union rights. 6 They thought 3 DOROTHY SUE COBBLE, THE OTHER WOMEN'S MOVEMENT: WORKPLACE JUSTICE AND SOCIAL RIGHTS IN MODERN AMERICA 60- 68 (2004). 4 Id. at 61 (suggesting that women in the labor movement opposed the ERA because they saw it as a "class piece of legislation").
5 Id. at 65 (explaining that ERA supporters were primarily "business and professional women . . . with substantial training and education" who "didn't particularly need labor standards legislation to ensure their own satisfactory working conditions"); see also Melissa Murray, The Equal Rights Amendment: A Century in the Making, 43 N.Y.U. REV. L. & SOC. CHANGE HARBINGER 91, 94 (2019) ("Middle-class and upper-class women cheered the ERA and welcome the prospect of enabling legislation that would begin to dismantle the various legal and social impediments that subordinated women . . . [w]orking-class women, however, were deeply skeptical of the ERA and the prospect of enabling legislation.").
women, like men, should be allowed to operate in the market without hindrances or protections. 7 Progressive women's groups and labor groups, like the National Consumers' League (NCL) criticized the NWP for offering "working women an abstract 'theoretical equality' while obstructing progress toward substantive equality for women who faced disadvantages of class as well as of gender." 8 They argued that the NWP program was designed for "an idealized labor market in which women, and workers in general, enjoyed boundless opportunity." 9 On this account, the ERA advanced a Lochner-esque approach to sex equality, concerned with women's formal liberty. Indeed, when the Supreme Court struck down the minimum wage for women in the 1923 case Adkins v. Children's Hospital, 10 the NWP applauded, arguing that "women were as capable as men in contracting for their jobs." 11 The NCL, which focused on issues facing working-class and poor women, took a different approach. Its members tried to fashion "solutions aimed at the labor market as it actually was," with the aim of transforming that reality. 12 The NCL was willing to restrict 7 Id. at 65 (noting that women in male-dominated professions like law and business opposed sex-based labor protections because they put them at a relative disadvantage to the men in their fields); see also Deborah Dinner, Strange Bedfellows at Work: Neomaternalism in the Making of Sex Discrimination, 91 WASH. U. L. REV. 453, 463 (2014) (explaining that while advocates on both sides of the conflict considered themselves to be advancing economic justice for women, "ERA activists came to understand sex-based protective laws as an injurious group classification of women that would undermine equal access to work opportunities").  REV. 799, 812 (2021) (noting that Alice Paul, a key architect of the ERA, was a consultant to the employer's lawyer in Adkins and helped "link equal rights for women to the liberty of contract pronounced by Lochner"). 12 STORRS, supra note 8, at 58; see also Dinner, supra note 7, at 463 (calling advocates for protective legislation "pragmatic" because their proposals were fashioned for "the labor market as then structured," in contrast to "aspirational" ERA proponents who "envision[ed] the labor market as it could be").
the opportunities of some individual workers-women in particular-"in order to win laws that would lay a 'floor' for labor standards." 13 Labor feminists argued that creating wage floors for women would not only improve women workers' lives but would also reduce employers' control over workers. 14 That is, their goals were both to protect women and to transform power dynamics in the political economy. From this vantage point, the ERA was dangerous. Labor feminists and progressive women feared the amendment would be used to eliminate the progress they had made toward more dignity and power in the economic sphere.

II.
Over time, however, the gulf between elite feminists and labor feminists narrowed. This happened for a few reasons. For one, the Fair Labor Standards Act (FLSA), enacted in 1938, provided wage floors for male and female employees alike, 15 while the National Labor Relations Act (NLRA), enacted in 1935, enabled union organizing and collective bargaining for all covered employees. 16 Because these statutes created rights for most private sector employees, they eliminated the need for women-specific protective legislation. 17 Notably, however, both of these statutes excluded domestic and agricultural workers. 18 These shameful exclusions, which were the result of compromises made by 13 STORRS, supra note 8, at 58. 14 Id. (explaining that the NCL thought the floor would reduce employers' ability to pit workers against each other, which would in turn lead to unionization and demands to heighten labor standards).
15 REBECCA DEWOLF, GENDERED CITIZENSHIP: THE ORIGINAL CONFLICT OVER THE EQUAL RIGHTS AMENDMENT, 1920AMENDMENT, -1963AMENDMENT, , at 161 (2021 (arguing that the FLSA "displaced the rational for sex-based labor legislation," allowing emancipationists to "claim with confidence that the ERA would not threaten the health and safety of women workers").
16 Id. at 92-93 (suggesting that the rise in support for the ERA was precipitated by "profound changes in social policies created by the Great Depression," including the NLRA). 17 Suk, supra note 11, at 817 (noting that the conversation around the ERA changed after the FLSA "required employers to pay minimum wages and overtime rates to male and female workers alike"). President Roosevelt who allowed Southern legislators to write discriminatory provisions into the New Deal programs in order to ensure their passage, left many African American women in particular without legal protection. 19 Nonetheless, the trend of eliminating sexspecific labor protections continued during World War II, at both the state and federal levels. And over the next decades, employment protections expanded for all workers.
As sex-specific employment protections came to be obsolete, ERA proponents could increasingly argue with confidence that the ERA would not threaten the health and safety of women workers. 20 By the late 1960s, many labor activists no longer feared the ERA; many even came to support it. 21 Joining forces with ERA proponents, they agreed to press for the ERA while also pursuing sex equality goals through the Fourteenth Amendment and statutes like Title VII of the Civil Rights Act of 1964. 22 During this period, Black women also became leaders in the ERA revival. The Fourteenth Amendment litigation strategy was first proposed by civil rights expert and attorney Pauli Murray in her role as a member of the President's Commission on the Status  (2011) (arguing that this narrative is oversimplified and that the "protective-laws debate is better understood not as an ideological competition between difference and sameness feminism, special and equal treatment, but rather as a strategic conflict about how to remedy the economic costs that the family-wage system imposed on women").
of Women. 23 Murray's advocacy was crucial to building support among different feminist factions for the ERA. 24 Murray also made an intersectional case for the ERA before such language existed. In testimony to the Senate Judiciary Committee in 1970, she articulated the need for a formal constitutional amendment to protect Black women, who were excluded from both the paternalistic legal protections for white women and the proximity to power and status afforded to Black men by virtue of their gender. 25 This laid the groundwork for Black women legislators later to lead the fight in twenty-first-century debates about the ERA's ratification. 26 The Fourteenth Amendment strategy found success. As is well known, in a series of cases beginning in the 1970s, many of which were litigated by Ruth Bader Ginsburg, equality advocates won the dismantling of most sex-based classifications in the law, effectively limiting the government's ability to enforce sex-role stereotypes. 27 Once on the Supreme Court, Justice Ginsburg encapsulated the approach in United States v. Virginia: Sex classifications may be used to compensate women for particular economic disabilities [they have] suffered, to promot[e] equal employment opportunity, [and] to advance full development of the talent and capacities of our Nation's people. But such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women. 28 23 Id. at 762- 69. 24 Id. at 796-801 (noting that coalition-building by key strategists including Pauli Murray led protectionists and ERA advocates to coalesce around the need for a constitutional amendment). The Court also came to protect women's reproductive rights under the Fourteenth Amendment, 29 although a majority of justices never embraced the connection between reproductive justice, full citizenship, and economic equality pressed by advocates. 30 Meanwhile, in the employment context, Title VII of the Civil Rights Act of 1964 supplemented the Fourteenth Amendment strategy, enabling advocates to dismantle not only formal discrimination, but also employment practices that had a disparate impact on women. 31 By the end of the twentieth century, despite the failure to ratify the ERA, the cause of sex equality had made great progress, including in the workplace.  424 (1971), the Court interpreted Title VII to forbid practices having a disparate impact on racial minorities and feminists used this disparate impact logic to win the elimination of many employer practices that negatively affected women. SERENA MAYERI, REASONING FROM RACE 107-08 (2011) ("Feminists embraced disparate impact in the years after Griggs . . . [and] recognized the potential of disparate impact to fight policies that placed working women at a disadvantage because of their family responsibilities."); see also Dinner, supra note 21, at 457 (noting that after Griggs, the Equal Employment Opportunity Commission issued guidelines interpreting Title VII to require employers to treat pregnancy as a temporary disability, which represented a success for legal feminists "who had devised the temporary disability paradigm as a strategy to promote childbearing women's economic security, social wellbeing, and equal employment opportunity").

III.
Despite these successes, however, the challenges facing women, particularly poor and working-class women, women of color, and immigrant women, are significant, and have become more so during the pandemic. 33 Nearly half of all working women-forty-six percent or twenty-eight million-work in jobs paying low wages, with median earnings of only $10.93 per hour. Women work in low-paying occupations at twice the rate men do. 34 The share of workers earning low wages is even higher among Black and Latina women than among white women. 35 Women continue to be paid less than men when working in comparable jobs, despite the Equal Pay Act of 1963's mandate of "equal pay for equal work." 36 In addition, the jobs that have historically been "women's" jobs-jobs in which (examining the impact of holding multiple socially marginalized identities on wage gaps and finding that "black women face a penalty relative to white men that exceeds the subtractive effect of both their race and gender penalties, relative to white women and black men, respectively"). women predominate-receive much lower wages and fewer rights. In fact, domestic work is still fully excluded from many federal and state labor and employment protections. 37 Women also do a tremendous amount of unpaid work, in the form of caregiving of children and family members and maintaining households. 38 As Professor Nancy Fraser has argued, under financialized capitalism, the work of social reproduction has been divided from economic production and its value and importance obscured; in the context of rising inequality, care work is "commodified for those who can pay for it, and privatized for those who cannot." 39 This is particularly true in the United States. Unlike many of its peer countries, the U.S. has no paid family leave at the federal level, 40 and at the state level, only nine states and the District of Columbia mandate paid family leave. 41 Low-wage workers, who are disproportionately women of color, rarely have paid leave from their employers and often cannot afford to take unpaid leave; they are typically forced back into paid labor soon after giving birth. 42 (projecting the pandemic's lasting, disproportional effects on low-wage workers, minorities, and women and proposing mitigating policy interventions).
37 See supra notes 16-19, and accompanying text. Child care in the United States also remains inaccessible to many. Infant child care costs families an average of $14,117 per year, which amounts to more than the price of public college in thirty-three states. 43 Although some child care subsidies exist, only one in six of the families eligible for subsidies receive them. 44 And the subsidies that do exist for infant and toddler child care usually prove inadequate, covering just a fraction of the cost of care. 45 Despite the high cost of care, the average early educator makes less than $12 an hour, 46 with the educators of infants and toddlers making even less. 47 Home-based child care providers often work far beyond forty hours a week for relatively little take-home pay and limited benefits. The Supreme Court's approach to problems of sex equality, modeled on its approach to race equality, 49 is deeply inadequate to address any of these problems. 50 Equal protection doctrine requires that plaintiffs prove that state actors treated them differently on account of sex (or race) and did so with intent to discriminate. 51 This approach relies on a conception of biased governmental perpetrators discriminating against individual victims. But an individualized approach that focuses on rooting out explicit bias does nothing about structural inequality; it is of minimal relevance to the problems facing most women, and poor and working-class women in particular; nor is it a solution to the crisis of care more generally.

IV.
Would the ERA change the picture? Unfortunately, there is little reason to believe this Court would take a more expansive approach to the ERA than it has to the Fourteenth Amendment. If anything, indications are to the contrary. The current right-wing Supreme Court threatens to curb constitutional rights that have been essential to women's equal citizenship and ability to direct their own lives for decades, most notably the right to abortion. 52 Moreover, in the hands of the current Court, equal protection may soon mean that any effort to affirmatively remedy race or sex inequality actually violates equal 49 MAYERI, supra note 31, at 106-43 (detailing how feminists "used theories developed in race cases to tackle sex inequality"). Constitutionalism, 133 HARV. L. REV. 1, 85-90 (2019) (arguing that requiring a plaintiff show a policy was enacted with a "discriminatory purpose" to establish an equal protection violation demonstrates a disregard for and inability to address institutionalized racism); Reva Seigel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L REV. 1111, 1141-42 (1997 (arguing that the Court's approach to equal protection is flawed because it requires presuming good faith when confronted with facially neutral laws that disproportionately impact minorities but skepticism when examining "policies that attempt to rectify centuries of discrimination against minorities and women").
protection. 53 Meanwhile, under the rubric of religious liberty, the conservative majority has increasingly allowed private entities to engage in discrimination on the basis of sex. 54 And the Court has made it harder for democratic legislatures to address problems of inequality. It has advanced narrow interpretations of Congress's power under the commerce clause, the spending clause, 55 and Section 5 of the Fourteenth Amendment; 56 created new obstacles to redistributive legislation under the First Amendment 57 and the Takings Clause; 58 and crafted separation of powers and administrative law doctrines that disempower the government. 59 Yet, equality's meaning is not fixed. The ERA and the Fourteenth Amendment could yet be vested with a more capacious definition of equality and legislatures could instantiate that vision through their work. Consider the growing calls for Congress to respond to the Supreme Court's anti-abortion ruling by enacting legislation that prohibits states from imposing undue burdens on women's reproductive choices. 60 These efforts reflect awareness that the Justices are not, and have never been, the sole enforcers or interpreters of the Constitution. Another place to look for hope is to the significant and inspiring organizing activity occurring among women workers-including domestic workers, nail salon workers, teachers, healthcare workers, and other female-dominated workforces.
Social movements have a long history of helping to shape constitutional meaning, including conceptions of sex equality. 61 For the most part, today's contemporary worker movements are not making express constitutional arguments. However, they are attempting to change the web of practices, institutions, norms, and traditions that structure their workplaces and our society, and, in that sense, they are working to transform our constitutional order. 62 These women are speaking out against domination and autocratic power in the workplace and the devaluing of care work. 63 They are demanding that their work be treated with dignity and fairly compensated, and that they have time to spend with 60 Women's Health Protection Act, H.R. 3755, 117th Cong. (2021). their families. 64 And they, along with other workers, including those laboring for the largest, most powerful, and oppressive companies, are demanding democratic rights at work. 65 In short, their organizing suggests a very different vision of equality than the one advanced by the conservative Court.
Following their lead, the ERA needs to be-and can be-invested with broader meaning than the meaning the conservative justices give to equal protection, and can be fused with broader efforts to transform the political economy. These battles need to be fought in Congress, in state legislatures, and in the public sphere, not first and foremost in courts, at least not before the very conservative Supreme Court. version of equal rights can also be offered in dissent, even within the confines of the current Court. 66 What might a broader conception of equal rights look like? As scholars have long argued, equal protection and equal rights must mean anti-subordination, not just anticlassification; the goal is not only individual freedom from intentional discrimination, but eliminating the social subordination of historically oppressed groups. 67 More broadly, the goal must be a democratic society in which all people interact as social equals, without systematic forms of domination in the private sphere as well as the public sphere. 68 To achieve this vision requires taking an intersectional approach to equality that bridges the long-standing racial and socioeconomic divides within the United States feminist movement. 69 Valuing social reproduction must be a central part of this project, including through protecting women's ability to control their bodies, as well as through achieving paid parental and family leave and publicly available, high quality, child care, health care, and education. 70 More long term, an equal rights agenda requires fundamentally reimagining the organization of both economic production and social reproduction. Looking back to the history with which I began, it means learning from and building on the best from both the ERA proponents and the labor feminists and African American leaders of the twentieth century-working towards greater equality in society not only as it is, but envisioning it as it could be. 71 Americans need, a new ERA should take social reproduction, rather than the problem of individual freedom from discrimination, as its core concern.").