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Explainer

The Equal Rights Amendment Explained

Thirty-eight states have finally ratified the ERA, but whether its protections for women’s rights are actually added to the Constitution remains an open question.

Published: January 23, 2020

On Janu­ary 15, Virginia became the latest state to ratify the Equal Rights Amend­ment (ERA), a proposed amend­ment to the Consti­tu­tion that guar­an­tees equal rights for women. The meas­ure emerged as a top legis­lat­ive prior­ity after Demo­crats took control of both houses of the Virginia General Assembly for the first time in two decades, lead­ing to the elec­tion of the first female speaker of the state’s House of Deleg­ates. It received bipar­tisan support in both cham­bers. This historic vote follows recent rati­fic­a­tions by Nevada in 2017 and Illinois in 2018 after four decades of inactiv­ity.

The Consti­tu­tion provides that amend­ments take effect when three-quar­ters of the states ratify them, putting the current threshold at 38 states. Virginia was the 38th state to ratify the ERA since Congress proposed it in 1972, tech­nic­ally push­ing the ERA across that threshold. And yet, 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.

What is the Equal Rights Amend­ment?

The Equal Rights Amend­ment was first draf­ted in 1923 by two lead­ers of the women’s suffrage move­ment, Alice Paul and Crys­tal East­man. For women’s rights advoc­ates, the ERA was the next logical step follow­ing the success­ful campaign to win access to the ballot through the adop­tion of the 19th Amend­ment. They believed that enshrin­ing the prin­ciple of gender equal­ity in our found­ing charter would help over­come many of the obstacles that kept women as second-class citizens.

While the text of the amend­ment has changed over the years, the gist of it has remained the same. The version approved by Congress in 1972 and sent to the states 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. The Congress shall have the power to enforce, by appro­pri­ate legis­la­tion, the provi­sions of this article.”

Begin­ning in 1923, lawmakers intro­duced the ERA in every session of Congress, but it made little progress until the 1970s. It didn’t help that for most of the twen­ti­eth century, Congress was comprised almost entirely of men. In the nearly five-decade span between 1922 and 1970, only 10 women served in the Senate, with no more than 2 serving at the same time. The picture was only slightly better in the House.

In 1970, a new class of women lawmakers — includ­ing Reps. Martha Grif­fiths (D-MO) and Shir­ley Chisholm (D-NY) — pressed to make the ERA a top legis­lat­ive prior­ity. They had to over­come the resist­ance of Rep. Emanuel Celler (D-NY), the power­ful chair­man of the House Judi­ciary Commit­tee who had refused to hold a hear­ing on the ERA for over 30 years. Faced with increased pres­sure, Celler finally relen­ted. In March 1972, the amend­ment passed both cham­bers of Congress with bipar­tisan support far exceed­ing the two-thirds major­it­ies required by the Consti­tu­tion. Congress promptly sent the proposed amend­ment to the states for rati­fic­a­tion with a seven-year dead­line.

Why wasn’t the ERA rati­fied by its original dead­line?

Within a year, 30 of the neces­sary 38 states acted to ratify the ERA. But then momentum slowed as conser­vat­ive activ­ists allied with the emer­ging reli­gious right launched a campaign to stop the amend­ment in its tracks. Phyl­lis Schlafly, a conser­vat­ive lawyer and activ­ist from Illinois who led the STOP ERA campaign, argued that the meas­ure would lead to gender-neut­ral bath­rooms, same-sex marriage, and women in milit­ary combat, among other things.

The oppos­i­tion campaign was remark­ably success­ful. Support for the ERA eroded, partic­u­larly among Repub­lic­ans. Though the GOP was the first party to endorse the ERA back in 1940, GOP lawmakers cooled to the amend­ment, lead­ing to a stale­mate in the states.

By 1977, only 35 states had rati­fied the ERA. Though Congress voted to extend the rati­fic­a­tion dead­line by an addi­tional three years, no new states signed on. Complic­at­ing matters further, 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. But in the four decades since Congress first proposed the ERA, courts and legis­latures have real­ized much of what the amend­ment was designed to accom­plish. A signi­fic­ant portion of the credit goes to Ruth Bader Gins­burg, who as the found­ing director of the ACLU Women’s Rights Project found success in arguing for a juris­pru­dence of gender equal­ity under the 14th Amend­ment’s Equal Protec­tion Clause.

And yet, despite these dramatic and import­ant gains for women’s rights, pervas­ive gender discrim­in­a­tion persists in the form of wage dispar­it­ies, sexual harass­ment and viol­ence, and unequal repres­ent­a­tion in the insti­tu­tions of Amer­ican demo­cracy.

Why is there revived interest in the ERA today?

In recent years there has been a resur­gence of women’s activ­ism, from the Women’s March on Wash­ing­ton to the #MeToo Move­ment to the record number of women elec­ted to Congress and state legis­latures in 2018. Amid this renewed focus on issues of gender equal­ity, lawmakers and advocacy organ­iz­a­tions like the ERA Coali­tion have put the amend­ment back on the nation’s agenda.

The renewed push to adopt the ERA captured public atten­tion in 2017, when Nevada became the first state to ratify the meas­ure since 1977. A key ERA cham­pion, State Sen. Pat Spear­man, explained, “This is the right thing to do, it’s the right time to do it, and so we just ought to do it.”

In 2018, the Illinois legis­lature followed suit. “This is our gener­a­tion’s chance to correct a long stand­ing wrong,” argued Illinois State Rep. Steven Andersson, a Repub­lican who helped shep­herd the meas­ure. With each new rati­fic­a­tion, there has been increased GOP support for the ERA.

Proponents argue that adop­tion of the ERA can advance the cause of equal­ity in the twenty-first century, but key ques­tions remain. Julie Suk, a soci­olo­gist and legal scholar at the CUNY Gradu­ate Center, has asked, “If rati­fied in the coming year, how should we construe the mean­ing of a consti­tu­tional amend­ment intro­duced almost a century ago and adop­ted half a century before full rati­fic­a­tion?” 

Over the last year, Bren­nan Center experts were among those to weigh in on the debate.

Jennifer Weiss-Wolf, the Bren­nan Center’s Women and Demo­cracy Fellow, noted that the ERA would empower Congress “to enforce gender equity through legis­la­tion and, more gener­ally, the creation of a social frame­work to form­ally acknow­ledge systemic biases that permeate and often limit women’s daily exper­i­ences.” And it would create consist­ency to address the patch­work ways gender and economic inequity are often addressed in our current laws. Among the “linger­ing legal and policy inequit­ies the ERA would help rectify,” she iden­ti­fied the emer­ging issue of menstrual equity as a legal and policy issue “the ERA could further refine and bolster.” 

Bren­nan Center Fellow Wilfred Codring­ton (also co-author of this piece) considered whether the ERA, framed as “an expli­cit, perman­ent consti­tu­tional provi­sion outlaw­ing gender discrim­in­a­tion,” is suffi­cient to meet the chal­lenge of inequal­ity today. “Lawmakers are justi­fied in adopt­ing the ERA,” Codring­ton argued, “even if it’s uncer­tain that the amend­ment would fully achieve its advoc­ates’ desired ends.” But courts should also draw on their consti­tu­tional author­ity based in equity — defined as “recourse to prin­ciple of justice to correct or supple­ment the law” — which can rein­force their legal equal­ity analysis and equip them to address “a broader spec­trum of anti-discrim­in­a­tion cases … with greater nuance.” 

John Kowal, the Bren­nan Center’s Vice Pres­id­ent for Programs, explored the legal and proced­ural ques­tions for Congress, the courts, and the Amer­ican people arising out of the ERA’s surpris­ing revival after a long period of dormancy. Should the push to ratify the 1972 version of the ERA fail on proced­ural grounds, Kowal also considered the advant­ages of start­ing the amend­ment process anew given the amend­ment’s strong base of public support. “When a power­ful social move­ment with deep popu­lar support takes up the goal of consti­tu­tional change,” he said, “history shows that this is a battle that can be won.”

What are the key legal chal­lenges today?

Does Virgini­a’s vote to ratify the ERA mean it will be adop­ted as the 28th Amend­ment to the Consti­tu­tion? The answer hinges on two proced­ural ques­tions with no settled answer.

First, can Congress act now, nearly 48 years after first propos­ing the ERA, to waive the lapsed dead­line? ERA support­ers have long argued that just as Congress had the power to set a dead­line, they have the power to lift one. Senate Joint Resol­u­tion 6, a bipar­tisan meas­ure sponsored by Sens. Ben Cardin (D-MD) and Lisa Murkowski (R-AK) which is currently pending in Congress, seeks to do just that. But while the ERA’s dead­line was exten­ded prior to the dead­line, there is no preced­ent for waiv­ing the dead­line after its expir­a­tion.

Second, can states act to rescind their support of a consti­tu­tional amend­ment before it is finally rati­fied? Congress confron­ted this ques­tion twice, during the rati­fic­a­tion of 14th and 15th Amend­ments in the years imme­di­ately follow­ing the Civil War. In each instance, Congress adop­ted resol­u­tions declar­ing the amend­ments rati­fied, ignor­ing the purpor­ted state rescis­sions. But in 1980, a federal district court in Idaho ruled that the state’s rescis­sion of the ERA was valid.

Who will decide these ques­tions? 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. This occurred most recently in 1992 when the states rati­fied the 27th Amend­ment, 203 years after Congress proposed it.

On Janu­ary 8, the Justice Depart­ment’s Office of Legal Coun­sel (OLC) issued an opin­ion arguing that the dead­line set by Congress is bind­ing and that the ERA “is no longer pending before the States.” Notably, the opin­ion rejects the conclu­sion of the 1977 OLC opin­ion, which approved of the earlier exten­sion of the ERA’s rati­fic­a­tion dead­line. In response, the National Archives and Records Admin­is­tra­tion has said that the arch­iv­ist of the United States, Daniel Ferriero, will not certify Virgini­a’s rati­fic­a­tion or add the ERA to the Consti­tu­tion until a federal court issues an order. (Ferriero had previ­ously accep­ted the rati­fic­a­tions from both Nevada and Illinois.)

But would the courts have a say in this contro­versy? In a 1939 case, the Supreme Court ruled that the ques­tion of whether an amend­ment has been rati­fied in a reas­on­able period of time is a “polit­ical ques­tion” best left in the hands of Congress, not the courts. If Congress acts to waive the dead­line, would the courts continue to honor that preced­ent? How much weight would they give to the view of the Amer­ican people, who strongly support the ERA accord­ing to recent polls?

In sum, Virgini­a’s vote to ratify the ERA has spurred an import­ant legal and policy debate. However the disputes over the amend­ment’s valid­ity are resolved, it is clear is that the conver­sa­tion around the ERA, an amend­ment that is already nearly a century in the making, is not likely to end in 2020.