A New Era for the ERA

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The Equal Rights Amendment raises questions of congressional authority.

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One hundred years after American women gained the right to vote, a new constitutional amendment may formally establish equality between the sexes.

The Equal Rights Amendment (ERA) proposes that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” And it is not exactly new—Congress first introduced it in 1923 and ultimately passed it in 1972. But the amendment never became part of the U.S. Constitution because only 37 states out of the required 38 had ratified it.

After rumors that the recently elected Virginia state legislators would revive the ERA, on January 15 the Virginia House of Delegates and Senate of Virginia voted 59–40 and 28–12, respectively, to approve it. With a new majority of Democrats in the legislature—who pledged to ratify the amendment—Virginia may have tipped the scales in favor of amending the U.S. Constitution.

The ERA, if it became the twenty-eighth amendment, would implicate regulatory frameworks from employee wage and workplace discrimination laws to abortion restrictions and paid maternity or paternity leave standards. Although the Equal Protection Clause of the Fourteenth Amendment has been applied to sex discrimination cases in the past, it does not actually mention women, gender, or sex in its text, and the late Justice Scalia once stated that it was not intended to apply to women.

A constitutional amendment, by contrast, would establish a uniform, national standard of equality between sexes with little room for differing interpretations among state and federal courts. It would also provide grounds for legal challenges to attempted rollbacks of anti-discrimination laws passed by state legislatures and the federal government, which are vulnerable to repeal in a changing political climate.

The history of the amendment, however, presents some technical challenges to ratification. When Congress first passed the ERA, it established a seven-year deadline for state ratification. After only 35 states had ratified the amendment by 1979, Congress passed new legislation that extended the deadline for another three years—but no additional states ratified the amendment, and the extended deadline came and went in 1982.

A wave of renewed public attention to the amendment in 2017 spurred the Nevada state legislature to ratify it despite the lapsed deadline, and Illinois followed suit one year later. Those ratifications brought the amendment just one state shy of the 38 needed to ratify—and sparked renewed debate about whether, and how, the amendment could be added to the Constitution after its expired deadline.

The legislative path forward is unclear because no amendment has ever been ratified after an expired congressional deadline. But the original seven-year deadline was not in the text of the amendment itself, and policy experts have argued that Congress can preserve the amendment’s ratification by passing new legislation to amend or eliminate the deadline. This is in keeping with congressional authority to extend the original deadline from 1979 to 1982, but with the key distinction that when Congress passed the first extension, the deadline had not already expired.

After the November 2019 elections in Virginia made ratification by 38 states a real possibility, the Judiciary Committee of the U.S. House of Representatives passed a resolution to eliminate the ERA’s ratification deadline altogether. The legislation will next move to the U.S. House of Representatives for a vote and, if passed, would go on to the U.S. Senate.

Proponents of the amendment argue that with congressional action to remove the deadline and Virginia’s ratification creating a total of 38 states, the ERA would become the law of the land.

But opponents of the ERA would likely challenge a removal of the deadline in court. Those who oppose the amendment argue that it could imperil state-level abortion regulations, and that modern conceptions of sex could be interpreted more broadly than originally conceived by the ERA, resulting in “unintended consequences” related to sexual orientation and gender identity.

These opponents of the amendment argue that the U.S. Supreme Court has already established that a seven-year deadline for ratification of a constitutional amendment is reasonable, and that amendments must be ratified at a “sufficiently contemporaneous” time to their passage in Congress. But there is no clear limit on what that time might be. For example, in 1992 states ratified an amendment governing congressional salaries that had been approved by Congress more than 200 years earlier—but that amendment did not have a congressional deadline in the first place.

Members of Congress are already moving to clear the way for the ratification of the ERA, and believe they have the authority to do so despite the lapsed deadline. Time will tell if they are right.