“Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
It seems so simple and yet, 100 years after it was first proposed and 51 years after it was approved by Congress, the Equal Rights Amendment is still not accepted as law despite the fact that 3/4 of the States had ratified it by 2020. Why? — It’s complicated.
Are you slightly confused about the status of the Equal Rights Amendment and what is going on now? So were we...so we did a little digging. We believe this is where things stand right now:
Following Congress’ approval of the ERA in 1972, 38 States have ratified the ERA including Illinois in 2018 and most recently Virginia in January 2020, meeting the minimum ¾ of states approval needed.
Proponents argue that because the 38th state ratified the constitutional amendment in 2020, it automatically went into effect in 2022 (two years after ratification).
They argue that the issue of missing the deadline for passing the ERA is irrelevant because the constitution only specifies that for it to be amended two-thirds of Congress must have passed it and 3/4th of the states are required to ratify it. They say both of these requirements have been met.
They argue that all that is needed is for the U.S. archivist and chief administrator of the National Archives and Records Administration (NARA) certify that the ERA is ratified.
They state that Biden can order the archivist to publish the ERA.
That all sounds good, but as expected, it is complicated and not as clear as some ERA proponents make it out to be:
Although the constitution doesn’t include any time limits for ratification, Congress has been adding time limits for ratification of amendments since 1917. The ERA originally had a 7 year limit to pass which was extended by three years and expired in 1982. The Supreme Court in the past has confirmed Congress’ ability to impose time limits on ratification.
Five states have sued to rescind their ratification. A federal court agreed they could rescind because they held that the extension of the time to ratify was illegal. The Supreme Court declared the case moot when it got there because the extended deadline to pass the ERA had expired without passage. It is not clear if they can rescind.
Biden’s Office of Legal Counsel has advised him that there is no legal basis for the archivist to declare the ERA as part of the constitution, but that Congress could act on its own.
Biden has called on Congress to pass a resolution recognizing ratification of the ERA.
Some proponents of the ERA believe that Biden’s administration could do more and could publish the ERA as ratified. They claim that pushing the blame on Congress for not declaring it ratified is a bid to get votes.
So Where Does That Leave Us?
While it is unlikely that the current Congress will declare the ERA to be ratified and it appears that President Biden is unlikely to order the archivist to declare the ERA ratified, there is every reason to keep the pressure on the President and Congress to make the ERA a priority. There was a Judiciary Committee Hearing on Tuesday, February 28th at 10:00 AM in DC. Our Senator Dick Durbin is chair of that Committee. For more information on that hearing, click here. For more information on contacting the President and Vice President demanding direct publication of the Equal Rights Amendment click here.
BACKGROUND:
The Equal Rights Amendment (ERA)was first proposed in 1923. It is now 100 years later and it has not yet been recognized as ratified, even though the required number of states have voted for ratification. How is this possible? Who would have thought that an Amendment saying that women have equal rights under the law would be so controversial? We need to understand why the Equal Rights Amendment is not the 28th Amendment to our Constitution and why some strong voices are arguing that it already is, or should be. The answer is not simple. It may be that what will be required to establish the ERA as law of the land will require extremely challenging congressional consensus and/or lengthy litigation to confirm ratification.
It may literally take an act of Congress to nullify the time limit originally set for ratification in 1973.
There does not appear to be a “simple” path to confirming ratification, but we must persevere. Countless numbers of women over the past 100 years have given their all to ensure that women are treated equally under the law of the United States. We can’t let them, or us, down now. Members of Congress need to know that we have not given up, and will never give up, until the Equal Rights Amendment is the law of our land.
The text of the Equal Rights Amendment is simple:
“Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
The Equal Rights Amendment was authored by Alice Paul, head of the National Women’s Party, and first introduced by Senator Curtis and Representative Anthony in 1923. Representative Anthony was the nephew of Susan B. Anthony. Although introduced to Congress every year, the ERA was buried in committee in both the House and the Senate until 1970. In February of 1970, twenty NOW leaders disrupted hearings of the U.S. Senate Subcommittee on Constitutional Amendments, demanding that the ERA be heard by the full Congress. That is what it took to get Congress to understand that women were demanding equality and confirms the power of group action and public will.
In 1971, the ERA was approved, without amendments, by the U.S. House of Representatives in a vote of 34-24. The Senate approved it, without changes, in 1972 with a vote of 84-8. However, they also set a time limit for ratification to be completed. We had seven years to get 38 states to ratify. The time limit issue is what is keeping the Amendment from being acknowledged.
Some people argue that there is no time limit because the Constitutional provision for amendments does not require a time limit for ratification. To date, arguments that the ERA should be deemed ratified because the time limit is not valid have not been successful. Congress has been setting time limits for ratification since 1917 and the Supreme Court has confirmed they have authority to do so.
A constitutional amendment requires ratification by ¾ (38) of the states. Ratification of the ERA had a rapid start, with 30 states ratifying in 1973. Then a movement coalesced against it, led by Phyllis Schlafly, and only 5 additional states had ratified by 1978, leaving us 3 states short (including Illinois). NOW organized an ERA extension march in 1978, which brought 100,000 plus supporters to Washington D.C.. That tremendously visible support motivated Congress to extend the deadline for ratification to June 30, 1982.
No additional states ratified before the extended date and Congress failed to further extend the time limit, in spite of numerous demands that they do so, year after year.
To complicate matters, five states filed legal actions to rescind their ratification of the amendment before the original deadline. In May of 1979, legislators from Idaho, Arizona and Washington filed suit in federal court challenging the constitutionality of the extension of the ERA and seeking to validate a state’s power to rescind a prior ratification.
In December of 1981, a federal Judge in Idaho v. Freeman ruled that the ERA extension was illegal, and rescission was legal. This was the first time that an Act of Congress relating to the amendment process was declared unconstitutional by a federal court. By the time the appeal of this decision got to the Supreme Court, it was dismissed as moot because the time limit for ratification of the ERA had expired. The issue of whether a state can rescind ratification remains resolved, and advocates for the amendment are adamant that there is no right to rescind.
When an Amendment to the Constitution has been ratified, it is one of the jobs of the National Archivist to “certify” and “publish” it. This is a ministerial act for the archivist and is not typically controversial. There is a current push to demand that the Archivist publish the ERA because the required number of states have ratified it, meaning that it has met the requirements of the Constitution.
Nevada (2017), Illinois (2018) and Virginia (2020) recently ratified the amendment after the extended time limit expired. After Virginia ratified the ERA, supporters of the amendment moved for its inclusion in the Constitution, taking the position that it had been ratified, in accordance with Article V of the Constitution, by three-fourths of the states. The Archivist asked for a legal opinion from the Department of Justice’s Office of Legal Counsel, which concluded that the amendment’s original ratification deadline had expired and that the amendment was not properly before the states when approved by Virginia, Nevada, and Illinois. That opinion has been adopted by the current Department of Justice.
In January 2020, Virginia, Nevada, and Illinois filed a complaint in federal district court to require the National Archivist to publish and certify the ERA as part of the Constitution. In Virginia v. Ferriero, the U.S. District Court for the District of Columbia dismissed the lawsuit, primarily on its conclusion that the states lacked standing to invoke the court’s jurisdiction. On March 5, 2021, Judge Rudolph Contreras stated that the Plaintiffs’ arguments were insufficient because the deadline set by Congress for the ratification period is valid and the states have no standing to sue because the Archivist’s failure to publish and certify the amendment does not, by legal definition, cause harm. Virginia withdrew from the lawsuit after a Republican governor was elected in November 2021. Oral arguments for the appeal were set in September 2022 but we did not find a record of a ruling as of this writing.
In the same district court opinion, the Judge stated that the archivist is not bound to record ratifications completed after the time limit as valid.
The court held that “the archivist has no duty to publish and certify the ERA.”
There is renewed demand for the Archivist to “certify” and “publish” the ERA because it met the constitutional requirements when the 38th state ratified it. In light of the fact that there are court rulings stating that the archivist’s role is ministerial in nature and that she or he does not have the authority to declare an amendment to be ratified, it is questionable whether publishing the ERA at this time would be effective. However, action needs to be taken to support the ERA and to remind our elected officials that supporters of this amendment will not stop fighting for it until it is acknowledged as law.
One argument for applying pressure on the President to require the Archivist to publish the amendment is to call attention to the fact that the ERA has still not been made part of the Constitution. President Biden has stated that he supports the ratification of the ERA and has called upon Congress to eliminate the time limit and confirm ratification. We can demand that he take action toward ratification.
Two major court rulings have concluded that the ERA’s ratification deadline, as set by Congress, has expired, a position that is supported by the current Department of Justice. The Supreme Court, in 1982, also indicated support for the idea that the deadline expired.
On January 31, 2023, Ayanna Pressly (D. Mass) and Ben Cardin (D. MD.) introduced a joint resolution (S.J. res. 4) to affirm ratification, co-sponsored by Sen. Murkowsk (R. Alaska), Sen. Durbin (D. IL) and Sen. Hirona (D. Hawaii), which is supported by all Democrats. This resolution is seeking to eliminate the time limit and ratify the amendment. Sen. Schumer said he will bring the vote by April 2023. Sixty votes would be needed and that requires the end of the filibuster with this Congress.
Congress had the authority to fix a time limit for approval of the amendment and Congress can eliminate the time limit requirement for the ratification of the ERA. Women, and their allies, have been fighting this fight for 100 years and we should not give up now. We should continue to demand the ratification of this amendment and show revitalized interest. We need to contact our elected representatives, starting with our Senators, to tell them, loud and clear, we will not stop until there is an amendment that says women are entitled to equality, under the law, and demand that they take immediate action.
The Senate Judiciary Committee, led by our own Dick Durbin, is conducting hearings on S. J. 4 on February 28th. All members of that committee need to know the strength of support for determining that the ERA is ratified because it met the requirements of the Constitution.
What we do know is that if we take no action, no action will be taken by Congress. We must keep up the pressure on our elected representatives to ratify the ERA!
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