Nearly a century after its initial proposal, the Equal Rights Amendment (ERA) has returned to the forefront of politics. Although the deadline for ratification of the ERA passed several decades ago, three states recently sued the Trump administration, arguing for its official inclusion as the 28th Amendment of the Constitution of the United States.
The ERA was proposed in 1923, just three years after women received the right to vote. Its purpose was to prevent the undermining of rights based on sex. Mainly, supporters of the ERA hoped to prevent discriminatory laws and policies against women.
The text of the proposed amendment stated, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
It wasn’t until 1972 that Congress approved the ERA. The states had until 1979 to ratify it with a requirement of 38 states. The deadline was extended to 1982, but within that time, only 35 states supported it and a majority of 38 was not reached.
However, following Illinois and Nevada, Virginia voted to pass the ERA on January 29, 2020. As the 38th state to ratify the amendment, Congress’s three-fourths requirement is met ― although 38 years after the deadline for ratification.
According to the Justice Department’s Office of Legal Counsel, Congress’s deadline makes the possibility of the ERA being ratified void. The ERA would have to go through the whole process of approval and ratification again to be added as an official amendment.
In response, the attorney generals of Virginia, Illinois, and Nevada filed a lawsuit for a court order that would force the archivist of the United States, David Ferriero, to finally ratify the ERA as an official amendment of the Constitution.
The lawsuit argues that the Constitution does not set time deadlines for the ratification of amendments and that Congress’s 1982 deadline was not binding as it wasn’t included in the body text, which was the portion sent to states.
The 27th Amendment was added to the Constitution more than 200 years after Congress voted to approve it. But regardless of the precedent set by its ratification, the ERA is still the first amendment in U.S. history to be passed by states after a deadline has elapsed. Nothing quite like this has occurred before.
Additionally, since their initial support, five states have rescinded their ratification: Nebraska, Tennessee, Idaho, Kentucky, and South Dakota. All five states are still counted among the 38, but opponents of the ERA argue that their withdrawals invalidate the state majority. In contrast, the attorney general’s lawsuit holds that the Constitution does not give states the grounds to rescind support of an amendment.
“Unfortunately, the forces that have tried to deny women equal protection under the law for centuries have not yet been fully vanquished,” Virginia Attorney General Mark Herring said.
After Congress approved the ERA in 1972, it initially gained traction, but not before encountering opposition from religious and politically conservative groups. They worried that women would lose privileges such as being exempt from a military draft and having added economic support from their husbands. Advocates of the ERA disagreed, but the amendment stopped gaining ground.
Supporters of the ERA believe that the amendment is both relevant and crucial to the rights of women and men (though women’s rights are the primary concern). Nicknamed at first the “Lucretia Mott Amendment” and later the “Alice Paul Amendment” after two famous feminists, the ERA was put forward to guarantee against discrimination on the basis of sex. Put simply, if the ERA became an official amendment, women’s rights would have a concrete Constitutional basis. Currently, the closest amendment for that purpose is the 19th, which is also being celebrated this year because of its 100-year anniversary.
In 2020, the issue of the ERA is not merely a question of gender equality; decades between now and Congress’s initial approval ask whether the amendment itself can be legitimately ratified. The ERA has already made history as the first amendment to be ratified by states after its deadline has passed. Whether it is added to the Constitution or not will set a powerful precedent for the future.
Image by Donn Dughi via Wikimedia Commons: https://commons.wikimedia.org/wiki/File:ERA_March_from_Governor's_mansion_dnd0196.jpg