The Era's Legal Status: Law Or Not?

The Equal Rights Amendment (ERA) is a proposed amendment to the U.S. Constitution that would, if added, explicitly prohibit sex discrimination. It was first introduced in Congress in 1923 but was not passed until 1972. Under U.S. law, amendments to the Constitution must be ratified by three-quarters of the state legislatures and do not require presidential approval. While 38 states have ratified the ERA, it has not been certified and published as part of the Constitution due to legal and political challenges. The amendment's ratification remains disputed today, and it is still legally unratified.

The ERA's ratification timeline

The Equal Rights Amendment (ERA) was first proposed in 1923 by Alice Paul, leader of the National Woman's Party, and introduced in Congress the same year. The ERA is a proposed amendment to the U.S. Constitution that would explicitly prohibit sex discrimination.

The ERAs Ratification Timeline

• 1923: Alice Paul drafts the ERA.
• 1943: Alice Paul rewords the first sentence of the ERA into what is now called the "Equal Rights Amendment".
• March 22, 1972: The ERA passes the Senate (84-8) and the House of Representatives (354-24) by a margin well over the required two-thirds majority and is sent to the states for ratification. A seven-year deadline is placed in the proposing clause, not in the text of the amendment itself.
• 1972-1973: A majority of states (30) ratify the proposed constitutional amendment within a year.
• 1978: Congress votes by a simple majority to extend the original seven-year deadline by three years.
• June 30, 1982: The extended deadline passes with no more states having ratified the ERA.
• 1982: The amendment is reintroduced in Congress, and "start-over" ERA bills continue to be introduced in every session of Congress until 2023.
• 1992: A novel "three-state strategy" for ERA ratification is first explored by the ERA Summit, a small national volunteer organisation of ERA advocates.
• 2017: The Nevada Legislature becomes the first state in 40 years to ratify the ERA.
• 2018: The Illinois legislature ratifies the ERA.
• January 27, 2020: Virginia becomes the 38th state to ratify the ERA.
• 2021: A federal district court judge rules that the three states (Nevada, Illinois, and Virginia) that ratified the ERA after the 1982 deadline "came too late to count".
• February 2023: A federal appeals court rejects calls from Illinois and Nevada for the ERA to be adopted.
• April 2023: The U.S. Senate falls short of the votes needed to enshrine equal rights for women in the Constitution, with a 51-47 vote in favour.

The three-state strategy for ERA ratification

• Gaining ratification by three more states, which would bring the total to 38, or three-quarters of states.
• The House of Representatives then taking any necessary action to verify that ratification has been achieved.
• The Archivist of the United States publishing the amendment in the Federal Register with certification of its ratification as the 28th Amendment.

In 1994, the first three-state strategy bill was introduced by Representative Robert Andrews (D-NJ). In 2011, he joined Representative Tammy Baldwin (D-WI) in support of her bill to override any previous deadline and affirm the validity of the ERA's ratification when 38 states had approved the amendment.

In the 118th Congress (2023-2024), the three-state strategy bills are S.J. Res. 4 (sponsored by Senators Benjamin Cardin, D-MD and Lisa Murkowski, R-AK) and H.J. Res. 25 (sponsored by Representative Ayanna Pressley, D-MA). These companion bills state:

> Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That notwithstanding any time limit contained in House Joint Resolution 208, 92d Congress, as agreed to in the Senate on March 22, 1972, the article of amendment proposed to the States in that joint resolution is valid to all intents and purposes as part of the United States Constitution having been ratified by the legislatures of three-fourths of the several States.

A variant on these two bills has been introduced in the 118th Congress as S.J. Res 39 (sponsored by Senator Kirsten Gillibrand, D-NY) and H.J. Res. 82 (sponsored by Representative Cori Bush, D-MO). These companion bills not only affirm that the ERA has been validly ratified and is enforceable as the 28th Amendment to the Constitution, but they direct the Archivist of the United States to certify and publish it without delay.

The ERA's legal status

The Equal Rights Amendment (ERA) is a proposed amendment to the U.S. Constitution that would explicitly prohibit sex discrimination. It was written by Alice Paul and Crystal Eastman and introduced in Congress in December 1923.

The ERA has been an issue with both fervent support and opposition. It has been reintroduced in every session of Congress since 1982, and in 2023, the Congressional Caucus for the Equal Rights Amendment was founded by House Democrats.

The ERA has met the ratification requirements of the Constitution's Article V, but it has still not been certified and published as part of the Constitution. Thirty-eight states have ratified the ERA, but there are still hurdles in the ERA's path. The ratification deadlines that Congress set after it approved the amendment have lapsed, and five states have acted to rescind their prior approval.

The ERA's validity is disputed. In 2021, a federal district court ruled that ratifications after the deadline "came too late to count". A federal appeals court rejected calls from Illinois and Nevada for the ERA to be adopted. The Trump administration argued that ERA ratification needed to start over, and while the Biden administration has not formally changed that position, it has voiced support for the resolution.

The Archivist of the United States has a statutory duty to certify and publish an amendment in the Federal Register once three-fourths of the states have ratified it. However, the Archivist has not yet carried out this duty for the ERA.

The ERA's adoption would send a clear message that the United States is committed to the inherent equality of all people as an American value. It would also provide a constitutional foundation for Congress to pass new and more robust laws that protect women and girls.

The ERA's impact on reproductive rights

The Equal Rights Amendment (ERA) has been introduced in every session of Congress since 1923, but it has never been ratified and added to the US Constitution. The ERA is a proposed amendment to the US Constitution that would explicitly prohibit sex discrimination.

The ERA would have a significant impact on reproductive rights. The Supreme Court's 2022 decision in Dobbs v. Jackson Women's Health Organization overturned nearly 50 years of reproductive rights precedent and returned control of abortion law to the states. The ERA would provide federal protection for women's equal civil rights and bodily autonomy, including access to legal abortion and comprehensive reproductive healthcare.

Many restrictive laws dealing with contraception and abortion have been invalidated over the past 60 years based on the legal principles of the right to privacy and due process. The ERA would eliminate the legal tradition of "gendered citizenship", which sees differing rights for women and men based on assumptions about their differing roles.

State equal rights amendments have been cited in cases dealing with whether a state that provides funding to low-income Medicaid-eligible women for childbirth expenses should also be required to fund medically necessary abortions for women in that program. These state Supreme Courts ruled that the state must fund both procedures if it funds either one, so that the government cannot use fiscal pressure to influence a woman's right to make medical decisions about her pregnancy.

Adding the ERA to the Constitution would mean that courts would have to consider abortion litigation in the context of guaranteed rights that are held to be equal for women and men, including rights to bodily autonomy, comprehensive healthcare, religious liberty, equal protection, and due process.

The Current Status of the ERA

The ERA was ratified by 30 states in its first year but fell victim to the emerging conservative political movement. By 1978, only 35 states had ratified the ERA, and Congress passed a bill extending the deadline to June 30, 1982. No more states ratified the ERA by this deadline, and in 1982, most activists and lawmakers accepted the ERA's defeat.

However, in the four decades since Congress first proposed the ERA, courts and legislatures have realised much of what the amendment was designed to accomplish. Despite these dramatic and important gains for women's rights, pervasive gender discrimination persists in the form of wage disparities, sexual harassment and violence, and unequal representation in the institutions of American democracy.

In recent years, there has been a resurgence of women's activism, and lawmakers and advocacy organisations have put the ERA back on the nation's agenda. In 2017, Nevada became the first state to ratify the measure since 1977, followed by Illinois in 2018 and Virginia in 2020.

There are still hurdles in the ERA's path, including the fact that the ratification deadlines set by Congress have lapsed, and five states have acted to rescind their prior approval. These issues raise important questions that must be resolved by Congress, the courts, and the American people.

The ERA's impact on women in the military

The Equal Rights Amendment (ERA) has had a significant impact on women in the military, even though it has never been ratified. The ERA was first introduced in 1923 and proposed that "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex".

In 1948, three years after the end of World War II, President Harry S. Truman signed the Women's Armed Services Integration Act into law, officially allowing women to serve as full, permanent members of all branches of the Armed Forces. However, this was not a guarantee of equal opportunity. The act restricted the number of women who could serve to only 2% of each branch and also limited how many women could become officers. Additionally, female service members could be automatically discharged if they became pregnant and were unable to command men or serve in combat positions.

In 1976, the first group of women was admitted into a U.S. military academy. In 1994, President Bill Clinton rescinded the “Risk Rule,” essentially allowing women to serve in all positions in the military except for direct ground combat roles. This allowed for many more women to still engage in combat as aviators, sailors, Air Force personnel, and other roles.

In 2013, then-Defense Secretary Leon Panetta announced that the ban on women in combat would be lifted entirely. This opened up hundreds of thousands of jobs for women in the military and ensured that as long as female service members completed the necessary training and requirements, they could serve in almost any role in the U.S. Armed Forces.

As of 2022, women make up 16% of the U.S. military, serving in every branch. Women have been injured, killed, and awarded high honors for their service. Two women received the Silver Star for their actions in combat: Sergeant Leigh Ann Hester in 2005 and Army Specialist Monica Lin Brown in 2007. Over 10,000 combat action badges have been awarded to women who served in combat in Iraq and Afghanistan.

Despite these advancements, women in the military continue to face challenges. Sexual harassment and sexual assault by fellow service members remain a threat to women on military duty and at service academies. Women's status in the military has advanced rapidly in recent decades, but the ERA would guarantee women the "equal justice under law" that they are risking and even sacrificing their lives to defend.

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