by Alexander Englert
According to one poll, four in five Americans believe that the U.S. Constitution guarantees equal rights to men and women.[1]This population would be surprised, then, to discover that it does not—in fact, the only constitutional guarantee of gender equality is the 19thAmendment’s right to vote.[2]Should the Equal Rights Amendment (“ERA”) be adopted, it will deliver what proponents believe to be a long-overdue protection of rights regardless of sex.[3]
The operative clause of the Amendment 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.”[4]The ERA was first introduced to Congress in 1923, but it took almost fifty years for the Amendment to pass both chambers.[5]In 1972, the ratification process finally began; per Article V of the Constitution, three-fourths (or 38) of the states must ratify an amendment for it to be adopted.[6]However, the ERA’s drafters opted to include a 7-year deadline, a decision that would create an ongoing dispute over the validity of its ratification.[7]
Within six years, 35 of the requisite 38 states had approved the ERA.[8]However, momentum stalled amid conservative backlash against feminism in the mid-1970s.[9]Congress voted to extend the ratification deadline to June 30, 1982, but by the time this deadline passed, no additional states had ratified the Amendment.[10]
Interest in the ERA revived in recent years, and in January 2020, Virginia became the 38thand state to approve the Amendment.[11]The House of Representatives responded to this milestone by passing a bill to nullify the deadline originally imposed by the ERA; a companion bill currently sits before the Senate.[12]
Yet, there are two primary legal questions which must be answered before the ERA can formally become the 28thAmendment. First, there is dispute over whether Congress may eliminate or extend an amendment’s deadline, as it did in 1978—before the deadline expired—and again this year—retroactively.[13]Similarly, critics challenge the legitimacy of ratification by the states which did so after the deadline passed.[14]Second, five states originally approved the Amendment but later attempted to rescind their support.[15]While rescissions during the ratification of the 14thand 15thAmendments were seemingly ineffective, some argue that states have the power to rescind their approval prior to an amendment’s passing.[16]
At present, there is no consensus as to whether the ERA was properly ratified, and legal minds continue to dispute its validity.[17]Both proponents and opponents have commenced litigation surrounding the ERA’s adoption, and until these issues are resolved, the fate of the Amendment remains uncertain.[18]
[1]Nicole Tortoriello, Making the Case for the Equal Rights Amendment, ACLU Virginia(Jan. 3, 2019), https://acluva.org/en/news/making-case-equal-rights-amendment.
[2]Patrick J. Lyons, Maggie Astor and Maya Salam, Why the Equal Rights Amendment Is Back, The New York Times(Jan. 15, 2020), https://www.nytimes.com/2020/01/15/us/what-is-equal-rights-amendment.html.
[3]The Associated Press, House passes resolution clearing path for Equal Rights Amendment, NBC News(Feb. 13, 2020), https://www.nbcnews.com/politics/congress/house-passes-resolution-clearing-path-equal-rights-amendment-n1136491.
[4]Frequently Asked Questions, Alice Paul Institute, https://www.equalrightsamendment.org/faq (last visited Apr. 9, 2020).
[5]Id.
[6]Id.
[7]Id.
[8]Id.
[9]Equal Rights Amendment passed by Congress, History.com(Feb. 9, 2010), https://www.history.com/this-day-in-history/equal-rights-amendment-passed-by-congress.
[10]Alice Paul Institute, supranote 4.
[11]Id.
[12]Id.
[13]Danielle Kurtzleben, House Votes To Revive Equal Rights Amendment, Removing Ratification Deadline, NPR(Feb. 13, 2020), https://www.npr.org/2020/02/13/805647054/house-votes-to-revive-equal-rights-amendment-removing-ratification-deadline.
[14]Alice Paul Institute, supra note 4.
[15]Id.
[16]Id.
[17]Kurtzleben, supra note 21.
[18]Alice Paul Institute, supra note 4.
