This expert brief was presented at the Brennan Center's 2018 Equal Rights Amendment Symposium with NYU Review of Law & Social Change.
On March 22, 1972, Congress approved the language of a proposed Equal Rights Amendment.1 The measure had the simple – and long sought – goal of enshrining the principle of gender equality in our Constitution, giving Congress the express power to enforce its provisions through legislation. To go into effect, the ERA required the approval of 38 of the 50 state legislatures. Congress set a deadline of seven years, which it later extended to ten. But despite strong early momentum, the campaign faltered three states short of the goal.2 Complicating matters further, five state legislatures voted to rescind their earlier support. In March 1982, ERA proponents conceded defeat.
Now, after a long period of dormancy, the campaign to ratify the ERA has sprung back to life. In March 2017, the Nevada legislature lent its approval.3 And in May 2018, Illinois became the 37th state to ratify.4 Does this mean, as proponents say, that we are just one state away from ratifying the Twenty-Eighth Amendment? The answer hinges on two procedural questions with no settled answer. Also unclear is who gets to decide: Congress, the courts, or the American people?
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