The Equal Rights Amendment: What Stopped It Becoming Law?

The Equal Rights Amendment (ERA) was first introduced in Congress in 1923, but it was not until 1972 that it was passed by the Senate and sent to the states for ratification. The ERA was ratified by 30 states in the first year, but it ultimately fell victim to the emerging conservative political movement. By 1978, it had received only 35 of the necessary 38 approvals, and although Congress voted to extend the deadline, no new states signed on. In addition, five states—Nebraska, Tennessee, Idaho, Kentucky, and South Dakota—voted to rescind their prior approval.

The ERA was also opposed by conservative political activist and attorney Phyllis Schlafly, who spearheaded the movement that framed the ERA as a threat to the traditional role of women as homemakers. Schlafly made many bad-faith arguments against the ERA, including that it would lead to gender-neutral bathrooms, same-sex marriage, and women in military combat.

Despite receiving the support of prominent figures such as President Richard Nixon and Justice Sandra Day O'Connor, the ERA failed to be ratified by the necessary 38 states until 2020, when Virginia became the 38th state to do so. However, the ERA still faces legal and political challenges, and its adoption remains uncertain.

The seven-year ratification deadline imposed by Congress expired in 1979

The Equal Rights Amendment (ERA) was first proposed in 1923 by Alice Paul and Crystal Eastman. It was finally approved by the U.S. Senate in 1972 and sent to the state legislatures for ratification. Although Article V of the U.S. Constitution, which outlines the amendment process, does not mention a time limit, Congress imposed a seven-year deadline for ratification. This deadline was included in the proposing clause, not in the text of the amendment itself.

The ERA was ratified by thirty states in the first year, but it fell victim to the emerging conservative political movement. By 1978, when it had received only 35 of the necessary 38 approvals required by Article V, Congress voted by a simple majority to extend the deadline to June 30, 1982. Although Article V does not give the President any role in the amendment process, President Jimmy Carter signed the extension bill as a symbolic show of support for the ERA.

By the June 30, 1982 deadline, no more states had ratified the ERA. Two weeks later, the amendment was reintroduced in Congress, and "start-over" ERA bills continued to be introduced in every session of Congress until 2023.

Despite these developments, the ERA has still not been certified and published as part of the Constitution. In December 2024, the U.S. Archivist stated that the ERA "cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions". The Archivist cited decisions by the Office of Legal Counsel of the U.S. Department of Justice in 2020 and 2022, which affirmed that the ratification deadline established by Congress for the ERA is "valid and enforceable". According to the 2022 OLC opinion, "extending or removing the deadline requires new action by Congress or the courts".

Thus, while the seven-year ratification deadline imposed by Congress did expire in 1979, the ERA remained—and remains—a live issue, with ongoing legal and political debates about its validity and potential paths to ratification.

The three-year extension of the ratification deadline expired in 1982

By 1978, only 35 states had ratified the ERA, so Congress voted to extend the deadline by three years. However, no new states signed on during this extended period. In fact, lawmakers in five states—Nebraska, Tennessee, Idaho, Kentucky, and South Dakota—voted to rescind their earlier support.

By the time the extended deadline expired in 1982, the ERA had still not received approval from the necessary 38 states, and most activists and lawmakers accepted its defeat. Despite this, in the four decades since Congress first proposed the ERA, courts and legislatures have achieved much of what the amendment set out to accomplish. For example, Ruth Bader Ginsburg, as the founding director of the ACLU Women's Rights Project, successfully argued for a jurisprudence of gender equality under the 14th Amendment's Equal Protection Clause.

In recent years, there has been a resurgence of women's activism, and with it, a renewed push to adopt the ERA. In 2017, Nevada became the first state to ratify the measure since 1977, followed by Illinois in 2018, and Virginia in 2020. Virginia was the 38th state to ratify the ERA, pushing it across the threshold required for amendments to take effect. However, there are still hurdles in the ERA's path, including the lapsed ratification deadlines and the five states that have rescinded their prior approval.

The ERA fell three states short of ratification

The Equal Rights Amendment (ERA) was first proposed in 1923 and introduced in Congress by Alice Paul, leader of the National Woman's Party, and Crystal Eastman. It was finally approved by the U.S. Senate in 1972 and sent to the state legislatures for ratification, with a seven-year deadline.

The ERA was ratified by thirty states in the first year, but it fell victim to the emerging conservative political movement. By 1978, when it had received only 35 of the necessary 38 approvals required by Article V, Congress voted by a simple majority to extend the deadline to 1982. However, the three-year extension did not allow enough time to oust key anti-ERA state senators, and the ERA fell three states short of ratification.

The failure to reach the necessary 38 states was due to an anti-ERA campaign led by conservative political activist and attorney Phyllis Schlafly, which framed the ERA as a threat to the traditional role of women as homemakers. Schlafly made many bad-faith arguments against the ERA, including that it would lead to gender-neutral bathrooms, same-sex marriage, and women in military combat. The anti-ERA movement was a key part of the so-called long Southern strategy, which relied on racism, anti-feminism, and Christian nationalism. This strategy had a lasting impact on the U.S. political system.

The influence of anti-ERA organizers mounted in state legislatures, and many Republican-majority states reversed their support for the amendment, with some states even trying to rescind their initial ratification. Despite the efforts of the National Organization for Women and other women's rights organizations, the ERA fell three states short of ratification by the 1982 deadline.

The anti-ERA campaign led by Phyllis Schlafly

Phyllis Schlafly was a conservative activist, anti-feminist, and attorney who played a significant role in preventing the Equal Rights Amendment (ERA) from becoming law. Schlafly's anti-ERA campaign, STOP ERA, was based on the argument that the amendment would deprive women of their special protections and privileges, such as dependent wife benefits and exemption from the military draft. She also argued that the ERA was unnecessary as protective legislation for women already existed.

Schlafly's campaign effectively mobilised a large number of followers, particularly in the Southern battleground states, by tapping into churches and appealing to evangelical Christians, Mormons, and traditional Jews. She was able to frame the ERA as a threat to traditional gender roles and family values, arguing that it would lead to gender-neutral bathrooms, same-sex marriage, and women in military combat roles. Schlafly's strategy was to convince women that equality between men and women was undesirable and that maintaining traditional gender roles was beneficial to society.

Schlafly's anti-ERA campaign was highly successful in generating opposition to the amendment, particularly among Republicans. Despite the widespread bipartisan support for the ERA in Congress, the momentum for its ratification slowed, and ultimately, the amendment fell short of the required number of state ratifications. Schlafly's efforts are widely credited with derailing the ERA and dealing a significant blow to the feminist movement.

Schlafly's campaign tactics included using traditional symbols of the American housewife, such as bringing homemade foods to state legislators with slogans like "Preserve us from a congressional jam; Vote against the ERA sham" and "I am for Mom and apple pie." She also utilised her position as chairwoman of the conservative political interest group Eagle Forum, which she founded in 1972, to spread her message and gain support for her cause.

In addition to her grassroots organising, Schlafly was an effective communicator and debater. She wrote several books and provided commentaries for radio and television, using these platforms to reach a wider audience and spread her anti-feminist and conservative views. Schlafly's ability to articulate her arguments and her intelligence made her a formidable opponent to those advocating for the ERA.

The rescission of ratification by five states

Article V of the U.S. Constitution, which outlines the process for states to ratify amendments, does not grant states the power to rescind their ratification. All precedents concerning state rescissions of ratifications indicate that such actions are not valid, and the constitutional amendment process only allows for ratification. For instance, the official tally of ratifying states for the 14th Amendment in 1868 included New Jersey and Ohio, which had passed resolutions to rescind their ratifications. Similarly, North Carolina and South Carolina, which had initially rejected the amendment, were also included in the tally after they ratified it.

The actions of the five states that voted to rescind their ratification of the ERA are thus considered a legal nullity. However, in 1980, a federal district court in Idaho ruled that the state's rescission of the ERA was valid. This ruling was later vacated as moot by the Supreme Court in 1982 and is no longer considered a legal precedent.

In 2021, the North Dakota legislature also adopted a resolution stating that its ratification of the ERA had lapsed in 1979. Despite these attempts to rescind ratification, the ERA is considered to have met the requirements for ratification and is pending final certification and publication as the 28th Amendment to the U.S. Constitution.

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