The Return of the Equal Rights Amendment

One hundred years ago, in the wake of the adoption of the Nineteenth Amendment granting women the right to vote, a group of suffragists began to draft another amendment to the United States Constitution that would enshrine equal rights for women. Today, almost a century after it was first introduced in Congress, the Equal Rights Amendment (ERA) has yet to become law. However, with the new President committed to passing the ERA, the first woman serving as Vice-President, and the introduction of bipartisan legislation to remove barriers to the ERA’s adoption, is it finally time for women to be declared full and equal citizens in the Constitution?

From Passage to Today

While the ERA was initially introduced in Congress in 1923, it was not approved by the requisite two-thirds majority of Congress for a constitutional amendment until 1972. In the proposed amendment, Congress set a seven-year deadline for the necessary three-fourths of the states to ratify it. Initially, public support was high. However, a conservative movement led by Phyllis Schlafly strongly opposed the amendment, arguing that it would erode “traditional” American families and lead to “radical” changes, such as women in the military, same-sex marriage and gender-neutral bathrooms. These efforts were effective: only 35 of the necessary 38 states had ratified the amendment by the 1979 deadline. Although Congress extended the ratification period to 1982, by the end of the extension, no additional states had passed the ERA.

It appeared that the fight was over. Public interest began to fade and for over 30 years the ERA lay dormant. Then, beginning in 2017, a resurgence of women’s activism renewed public interest in the ERA. This newfound momentum prompted Nevada to ratify the amendment, the first State to do so since 1977. Illinois followed suit in 2018, and on January 27, 2020, Virginia became the 38th State to ratify the ERA. The only problem was that this occurred 41 years after the original deadline for ratification. The legal battle was just beginning.

Battle for Certification

After the necessary number of states have ratified a constitutional amendment, the Archivist of the United States is responsible for publishing the amendment and declaring that it has become a valid part of the Constitution. Anticipating Virginia’s ratification, the Department of Justice issued an opinion directing the Archivist not to certify the ERA, asserting that when 38 states had not ratified the amendment by the original deadline, the amendment failed and, furthermore, that Congress does not have the authority to retroactively remove or modify the deadline.

Fighting Back

The most immediate question around the ERA’s validity—and in effect, the obstacle for certification—is whether Congress can alter or invalidate the original deadline set for the ERA’s ratification by the states. There are two primary approaches for proponents of the ERA to pursue its certification: argue that a deadline in a preamble is without binding legal effect, or argue that even if it has legal effect, the deadline can be changed by Congress.

In 1921, the Supreme Court held that Congress has the authority to set a deadline for a constitutional amendment. However, the Supreme Court’s ruling addressed the deadline in the Eighteenth Amendment, which was written into the text of the amendment itself. By contrast, the ERA’s deadline was only written in its preamble. As such, in 2020, the last three states to ratify the ERA—Virginia, Illinois and Nevada—filed suit to compel the Archivist to recognize the amendment, arguing that the deadline was invalid. But the D.C. district court rejected this argument, instead holding that the deadline to the ERA was valid and the Archivist had no power to ignore it. The case has been appealed to the D.C. Circuit.

Meanwhile, no legal authority has ever addressed whether Congress can change or annul a deadline once set—be it in the preamble or the text of the amendment. In early 2021, Senators Ben Cardin of Maryland and Lisa Murkowski of Alaska together with Congresswoman Jackie Speier of California and Congressman Tom Reed of New York introduced a joint resolution—just one day after President Biden and Vice President Harris took office—to remove the ERA’s deadline for ratification. The timing was not coincidental: President Biden ran for office on a platform that explicitly endorsed passage of the ERA, pledging that he would advocate for Congress to recognize that the amendment had been ratified. On March 17, 2021, the House passed the resolution, which now awaits action in the Senate.

Future Roadblocks

Even if the legislation passes the Senate, the ERA will almost certainly be challenged in the courts. In particular, opponents will assert that the ERA is not valid regardless of a change to the deadline because, between 1973 and 1979, five state legislatures—Idaho, Nebraska, South Dakota, Kentucky and Tennessee—voted to rescind their ratification. Advocates reject this view, noting that Article V of the Constitution only speaks to the power of states to ratify, not rescind ratification of an amendment. Advocates also point to a similar past instance when three states attempted to rescind their ratification of the Fourteenth Amendment. Despite the attempt, Congress opted to include those states in its count when declaring the Fourteenth Amendment part of the Constitution.

The Impact of the ERA

Assuming the ERA ultimately is enshrined in the Constitution, what impact will it have? Beyond the inherent value in having a Constitution that recognizes and is committed to equal rights regardless of sex, the ERA could have wide-ranging implications. For one thing, with the ERA in effect, challenges to a law that discriminates on the basis of sex would have to be evaluated by the courts under the highest level of scrutiny, also known as “strict scrutiny.” This would put the onus on the states to justify to a court why the purpose of the law outweighs the protection guaranteed by the Constitution.

The ERA also would bolster arguments in support of Congress’ constitutional authority to pass legislation that protects women, such as the Violence Against Women Act and pay discrimination statutes. Furthermore, the ERA could also protect against the increasing threats to abortion access and reproductive healthcare by recognizing that reproductive autonomy is vital to women’s equality.

The beneficiaries of the ERA would not be limited to women. In fact, the 1972 text does not at any point mention the word “woman.” Rather it reads, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Notably, last year, the Supreme Court ruled that the prohibition against employment discrimination on “the basis of sex” in Title VII of the Civil Rights Act also applied to LGBTQ employees. The near-identical language in the ERA could be deemed broad enough to establish equal rights based on both sex and sexual orientation.

Women have waited 234 years to be recognized as full and equal citizens in the U.S. Constitution. While there are obstacles still in the path ahead, a renewed sense of urgency among ERA proponents is gaining momentum. With the pieces beginning to fall into place, finally, the ERA’s time could be now.

Josie Dikkers is an associate in Debevoise’s New York office.

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