Equal Rights Amendment: A Dream Deferred?

The Equal Rights Amendment (ERA) was a proposed amendment to the US Constitution that would have explicitly prohibited sex discrimination. Despite receiving the required number of state ratifications, it was not adopted as a constitutional amendment due to legal challenges and the lapse of its ratification deadline. The ERA's failure to become law can be attributed to several factors, including opposition from conservative religious and political organisations, the emergence of the religious right, and the rescission of ratifications by several states.

The amendment's ratification in the states remains disputed

The Equal Rights Amendment (ERA) was first introduced in Congress in 1923, three years after the Nineteenth Amendment granted women in the United States the right to vote. The ERA was designed to guarantee protection against sex discrimination for women under the law. Despite being reintroduced in every subsequent Congress, it made little progress until the 1970s.

In March 1972, the ERA passed both chambers of Congress with bipartisan support and was sent to the states for ratification with a seven-year deadline. Within a year, 30 of the necessary 38 states acted to ratify the ERA. However, momentum slowed as conservative activists allied with the emerging religious right launched a campaign to stop the amendment.

By 1977, only 35 states had ratified the ERA. Congress voted to extend the ratification deadline by three years, but no new states signed on. Additionally, lawmakers in five states—Nebraska, Tennessee, Idaho, Kentucky, and South Dakota—voted to rescind their earlier support.

In 1982, following the expiration of the extended deadline, most activists and lawmakers accepted the ERA's defeat. However, in the decades since, courts and legislatures have realised much of what the amendment set out to accomplish. Despite these gains for women's rights, pervasive gender discrimination persists in the form of wage disparities, sexual harassment, violence, and unequal representation in American institutions.

In recent years, there has been a resurgence of women's activism, and the ERA has once again gained attention. 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, technically pushing it across the threshold of 38 states required for ratification.

However, there are still hurdles in the ERA's path. The ratification deadlines set by Congress have lapsed, and several states have acted to rescind their prior approval. These issues have sparked legal and political debates about the validity of the ERA's ratification process.

The first question centres around whether Congress can act now, nearly 50 years after first proposing the ERA, to waive the lapsed deadline. ERA supporters argue that Congress has the power to set a deadline and, therefore, can also lift one. However, there is no precedent for waiving a deadline after its expiration.

The second question concerns the ability of states to rescind their support for a constitutional amendment before it is finally ratified. Congress has confronted this issue during the ratification of the Fourteenth and Fifteenth Amendments following the Civil War. In these instances, Congress adopted resolutions declaring the amendments ratified, ignoring the purported state rescissions. However, in 1980, a federal district court in Idaho ruled that the state's rescission of the ERA was valid.

The resolution of these questions will determine the fate of the ERA. Under a 1984 law, the Archivist of the United States is charged with issuing a formal certification after three-quarters of the states have ratified an amendment. When there has been doubt over the validity of an amendment, Congress has acted to declare it valid.

While the ERA's ratification in the states remains disputed, its supporters continue to advocate for its inclusion in the Constitution as the Twenty-eighth Amendment.

The ERA's ratification deadline was extended by Congress

The Equal Rights Amendment (ERA) was passed by the US Congress in March 1972 and sent to the individual states for ratification. A seven-year deadline was set for the three-quarters majority (38 states) required to ratify the amendment.

By 1978, only 35 states had ratified the ERA, and Congress voted to extend the deadline by three years. This extension was not supported by a two-thirds majority in either the House or the Senate, but it was signed by President Jimmy Carter as a symbolic gesture of support.

Despite the extension, no new states ratified the ERA before the new deadline of June 30, 1982. The amendment was reintroduced in Congress two weeks later, and "start-over" ERA bills were introduced in every session of Congress until 2023.

In 2013, a "three-state strategy" was proposed, suggesting that the ERA's existing 35 ratifications were still valid and that three more states ratifying the amendment would be sufficient for it to pass. In 2017, Nevada became the 36th state to ratify the ERA, followed by Illinois in 2018, and Virginia in 2020.

However, the validity of these ratifications after the extended deadline had passed is disputed. Several lawsuits have been filed against the US Archivist, arguing that they have a duty to publish and certify the ERA as part of the Constitution. The Supreme Court has ruled that the deadline set by Congress is binding and that the ERA "is no longer pending before the States".

Five states rescinded their ratification

The Equal Rights Amendment (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. By 1977, 35 states had approved the amendment. However, five of these states—Nebraska, Tennessee, Idaho, Kentucky, and South Dakota—subsequently voted to rescind their ratification. This meant that by the original deadline of March 1979, the ERA had only been ratified by 30 states.

Article V of the Constitution is silent on the question of whether a state can rescind its ratification of a proposed amendment. However, all precedents concerning state rescissions indicate that such actions are not valid. For example, when the 14th Amendment was promulgated in 1868, Congress included in the official tally of ratifying states, New Jersey and Ohio, which had passed resolutions to rescind their ratifications. This set a precedent that attempted withdrawals of ratifications have no legal validity.

Despite the legal uncertainty, the rescissions by the five states had a significant impact on the fate of the ERA. With the deadline approaching, advocates became worried, and Congress voted to extend the deadline by three years to June 30, 1982. However, no additional states voted to ratify the amendment before this extended deadline, and the ERA fell three states short of ratification.

The ERA's supporters and opponents

The Equal Rights Amendment (ERA) was first introduced in Congress in 1923 by Alice Paul and Crystal Eastman. The amendment was designed to explicitly prohibit sex discrimination and guarantee equal legal rights for all American citizens regardless of sex.

Supporters

The ERA's supporters included middle-class women, the National Woman's Party, the National Organization for Women (NOW), and ERAmerica, a coalition of almost 80 organizations. The amendment also received support from several prominent Republican women, including Justice Sandra Day O'Connor, First Lady Betty Ford, and Senator Margaret Chase Smith. Notable male supporters included President Dwight D. Eisenhower, President Richard Nixon, Senator Richard Lugar, and Senator Strom Thurmond.

Supporters of the ERA argued that it would end legal distinctions between men and women in matters such as divorce, property, and employment. They believed that the ERA was necessary to address pervasive gender discrimination, including wage disparities, sexual harassment, violence, and unequal representation in American institutions.

Opponents

Opponents of the ERA included those who spoke for the working class, arguing that women should have more domestic responsibility than men and that employed women needed special protections regarding working conditions and employment hours. The Women's Joint Congressional Committee, led by Mary Anderson and the Women's Bureau, opposed the amendment, believing that the loss of benefits to women would not be worth the supposed gain in equality.

The most prominent opponent of the ERA was Phyllis Schlafly, a conservative Republican activist who led the "Stop ERA" campaign. Schlafly argued that the ERA would lead to the loss of protections for women, such as exemption from military service and economic support from husbands. She also claimed that it would lead to gender-neutral bathrooms, same-sex marriage, and women in military combat roles.

Other opponents of the ERA included religious conservatives, who argued that it would guarantee universal abortion rights and the right for same-sex couples to marry. Anti-abortion groups also opposed the ERA, believing that it would allow for legal abortion without limits and taxpayer funding for abortion. Additionally, states'-rights advocates saw the ERA as a federal power grab, and business interests, such as the insurance industry, opposed it due to potential financial costs.

The ERA's future remains uncertain

The future of the Equal Rights Amendment (ERA) remains uncertain. While 38 states have now ratified the ERA, it has not been certified and published as part of the Constitution. The ERA was first introduced in Congress in 1923, and in the 100 years since, it has met the ratification requirements of the Constitution's Article V. However, the final step of publishing the ERA in the Federal Register with certification of its ratification as the 28th Amendment has not been taken by the Archivist of the United States.

The ERA's ratification has faced several obstacles, including the lapse of the ratification deadline set by Congress and the rescission of ratification by five states. These issues have raised legal and procedural questions that must be resolved by Congress, the courts, and the American people. One key question is whether Congress can act now, nearly 50 years after first proposing the ERA, to waive the lapsed deadline. ERA supporters argue that Congress has the power to set a deadline and, therefore, also has the power to lift one. However, there is no precedent for waiving a deadline after its expiration.

Another question surrounds the validity of state rescissions of support for a constitutional amendment before it is finally ratified. Congress has previously ignored state rescissions during the ratification of the 14th and 15th Amendments. However, in 1980, a federal district court in Idaho ruled that the state's rescission of the ERA was valid. The Supreme Court has also ruled that the question of whether an amendment has been ratified within a reasonable period of time is a "political question" best left to Congress.

The ERA's fate now rests with Congress, the courts, and the American people. If the push to ratify the 1972 version of the ERA fails on procedural grounds, some have suggested starting the amendment process anew, given the amendment's strong base of public support. Recent polls show that the ERA has the support of 85% of Americans, with high levels of support across partisan lines.

The ERA's uncertain future highlights the complexities and challenges of the constitutional amendment process in the United States. While the ERA has met the ratification requirements, its path to becoming part of the Constitution remains uncertain due to legal and procedural hurdles.

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