The Law's Historical Evolution: When Did It Begin?

The Equal Rights Amendment (ERA) was passed by the US Senate on March 22, 1972, and sent to individual states for ratification. The ERA was designed to guarantee protection against sex discrimination for women under the law. Despite receiving the required number of state ratifications (38) in January 2020, the amendment's future remains uncertain due to pending legal challenges.

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. It stated:

> Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction. Congress shall have power to enforce this article by appropriate legislation.

For decades, supporters of women's rights were divided over the desirability of the ERA. The "protectionists" feared it would eliminate hard-won labour laws regulating working conditions for women, while the "emancipationists" believed that "gendered citizenship" traditionally disadvantaged women and should no longer be constitutional.

In 1943, Paul reworded the first sentence of the original ERA into Section 1 of what is now called the "Equal Rights Amendment":

> Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

> Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

> Section 3: This amendment shall take effect two years after the date of ratification.

This wording was modelled on the 19th Amendment: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex." Ratified in 1920, the 19th Amendment is still the Constitution's only explicit guarantee of an equal right for women—the right to vote.

On March 22, 1972, in accordance with the constitutional amendment process described in Article V of the Constitution, the ERA passed the Senate (84-8) and the House of Representatives (354-24) by well over the required two-thirds majority and was sent to the states for ratification. Although no ratification time limit is mentioned in Article V, a seven-year deadline was placed in the proposing clause, not in the text of the amendment itself.

The ERA was ratified by 30 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 passed a bill by a simple majority extending 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. A November 1983 floor vote in the House of Representatives under a suspension of the rules failed to achieve the required two-thirds majority by only six votes.

In the 113th Congress (2013-2014), lead sponsor Representative Carolyn Maloney (D-NY) included revised wording in the ERA bill she introduced in the House of Representatives:

> Section 1: Women shall have equal rights in the United States and every place subject to its jurisdiction. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

> Section 2: Congress and the several States shall have the power to enforce, by appropriate legislation, the provisions of this article.

> Section 3: This amendment shall take effect two years after the date of ratification.

The ERA bill in the Senate, with language unchanged from the 1972 version, was introduced by lead sponsor Senator Robert Menendez, D-NJ.

In the 118th Congress (2023-2024), no "start-over" ERA bill has been introduced in the House or the Senate. Constitutional scholars and ERA advocates have presented a substantive legal argument to support the premise that the ERA is now ratified as of January 27, 2020.

On January 15, 2020, Virginia became the 38th state to ratify the ERA since Congress proposed it in 1972, technically pushing the ERA across the threshold. However, 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. These raise important questions, and now it is up to Congress, the courts, and the American people to resolve them.

The three-state strategy for ERA ratification

• The argument that the ERA's 35 ratifications were still valid, and that states could ratify the amendment even though the deadline had passed.
• The argument that Article V, specifying the process for constitutional amendments, does not mention a time limit, and that any time limit on ERA ratification would be open to change.
• The argument that state votes to retract their ratifications have never been accepted as valid, with precedent in the 14th and 15th Amendments.

In 1994, the first three-state strategy bill was introduced by Representative Robert Andrews (D-NJ). The bill stated that when an additional three states ratified the ERA, the House of Representatives would take any necessary action to verify that ratification had been achieved.

In 2013, ERA Action brought renewed vigour to the movement by instituting the three-state strategy. They coordinated with US Senators and Representatives to introduce legislation in both houses of Congress to remove the ratification deadline.

In 2014, under the auspices of ERA Action and their coalition partners, both the Virginia and Illinois state senates voted to ratify the ERA. That year, votes were blocked in both states' House chambers.

In 2017, Nevada became the first state in 40 years to ratify the ERA. In 2018, Illinois became the 37th state to ratify the ERA. In 2020, Virginia became the 38th state to ratify the ERA.

The three-state strategy bills in the 118th Congress (2023-2024) 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 bills state that the ERA is valid and part of the US Constitution, despite any time limit.

The ERA's legal status

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

The ERA has been an issue with both fervent support and opposition. In March 1972, it was approved by the U.S. Senate and sent to the states for ratification. The ERA was ratified by thirty states in the first year, but it fell victim to the emerging conservative political movement. By 1978, it had received only 35 of the 38 approvals required by Article V of the U.S. Constitution.

In 1978, Congress passed a bill extending the deadline to June 30, 1982. However, no more states ratified the ERA by this deadline. The amendment was reintroduced in Congress, and "start-over" ERA bills were introduced in every session until 2023.

In 1994, a "three-state strategy" for achieving ERA ratification was introduced. This strategy was based on the ratification of the 27th Amendment, which was added to the Constitution in 1992, more than 200 years after its passage by Congress, with no time limit attached. As of January 27, 2020, 38 states had ratified the ERA, meeting the requirements of Article V.

However, the ERA has not been certified and published as part of the Constitution due to legal and political challenges. Six of the ratifying states subsequently voted to withdraw their ratification, and there are questions about the validity of extending or removing ratification deadlines. The Supreme Court has ruled that ratification deadlines are a "political question" for Congress to resolve.

The ERA's ratification requirements

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

Ratification Requirements

The ERA was passed by Congress on March 22, 1972, and sent to the states for ratification. In order to be added to the Constitution, it needed approval by legislatures in three-fourths (38) of the 50 states within seven years.

By 1977, 35 states had approved the amendment. However, in 1978, Congress voted to extend the deadline to June 30, 1982. Despite this, no additional states ratified the ERA before the new deadline, and it fell three states short of ratification.

In 1994, a "three-state strategy" for achieving ERA ratification was developed, and in 2017, Nevada became the 36th state to ratify the ERA, followed by Illinois in 2018, and Virginia in 2020.

Rescinding Ratification

Five states—Idaho, Kentucky, Nebraska, Tennessee, and South Dakota—voted to rescind their ratification of the ERA before the 1982 deadline. The legality of rescinding ratification is disputed, as Article V of the Constitution does not mention the power of states to rescind ratification, only the power to ratify. However, precedents concerning state rescissions of ratifications indicate that such actions are not valid.

Current Status

The ERA has now been ratified by 38 states, meeting the requirements of Article V of the Constitution. However, due to the expired deadlines and five revocations, the legal status of the ERA remains uncertain. Several lawsuits have been filed against the U.S. Archivist, arguing that he has a duty to publish and certify the ERA as part of the Constitution.

The ERA's impact on existing laws

The Equal Rights Amendment (ERA) is a proposed amendment to the United States Constitution that would, if added, explicitly prohibit sex discrimination. The ERA was first introduced in Congress in 1923 and was finally approved by the U.S. Senate in 1972. It was then sent to the state legislatures for ratification, with a seven-year deadline.

Secondly, the ERA would not transfer jurisdiction of any laws from the states to the federal government. Opponents have argued that Section 2 of the ERA ("The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article") is a federal power grab. However, this clause appears in eight other amendments, beginning with the 13th Amendment in 1865. The ERA would simply be one legal principle among others in the Constitution by which courts evaluate the constitutionality of governmental actions.

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