On Equal Rights Amendment

“Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex” – those are the words that almost everyone might expect to be part of the US Constitution, and yet they are not. For 48 years, since 1972, the Equal Rights Amendment remains unratified. Many of my American friends have never heard of the Equal Rights Amendment and according to a new poll, 72% of Americans believe the Amendment is already part of the Constitution.

Embed from Getty Images

ERA was introduced in the Congress for the first time in 1923, but it was not approved until 1972, almost 50 years later. The Congress has originally set a May 22, 1979 deadline for ratification. By 1977, the amendment received 35 out of 38 required ratifications. However, the anti-amendment campaign, led by Phyllis Schlafly has succeeded in stopping the ratification process dead in its tracks, and no state ratified the amendment until 2017.

Over the course of history, ERA has many supporters and detractors. In this essay, I will not focus on their arguments, as this discussion is extremely complex. Instead, I will assume that it needs to be ratified, and explore obstacles before the ERA can be promulgated by the Archivist of the United States.

In 1978, Congress extended the ratification deadline until June 30, 1982, but no additional states ratified at that time. Furthermore, out of the original 35 states that ratified the amendment, 5 withdrew their ratifications later. Four states (Idaho, Kentucky, Nebraska, and Tennessee) did so explicitly, while South Dakota did it by adding a sunset clause to its ratification resolution.

After a recent push for ratification, three more states have ratified the amendment: Nevada in 2017, Illinois in 2018, and Virginia in 2020. In 2020 attorneys general of those three states have filed a federal lawsuit against the Archivist of the United States to require him to certify the amendment as a part of the Constitution. Trump administration is flighting those efforts and the US Department of Justice has filed a motion to dismiss. In 2019 attorneys general of Alabama, Louisiana and South Dakota have also sued prevent the ratification of the amendment.

There is little doubt that both lawsuits will go all the way to the Supreme Court – and the court will have to answer plenty of questions. Firstly, the court will need to decide if Congress has a right to impose a deadline on the ratification process. Article V of the Constitution, which governs the amendment process, does not mention such a power. In Dillon v. Gloss (1921), the Supreme Court has held that Congress does possess such a power. However, there is a significant difference between the Amendment XVIII, which the Court was considering in that case, and the ERA. The deadline for the ratification of the Amendment XVIII was set within the text of the Amendment itself – the amendment would have become inoperative even if it had been ratified and became part of the Constitution. On the other hand, the deadline for the ratification of ERA is contained within the resolution, by which the Congress adopted the amendment.

Dillon v. Gloss was modified by Coleman v. Miller (1939), where the Supreme Court held that if there is no deadline for the ratification set by the Congress, the Congress is to be an ultimate judge as to when the amendment has been ratified. This ruling allowed Amendment XXVII to be ratified 202 years after it had been adopted by the Congress. In essence, the ruling held that the question of timeliness of ratification is a political and non-justiciable one, leaving the issue to Congress’s discretion

If the Supreme Court rules that the Congress does have a right to set a deadline within the body of the resolution, then it will need to decide whether the Congress can also modify the deadline post factum, and what majority does it need to do so: simple, absolute or a two-thirds majority. This is a significant question because Congress might want to further extend the deadline. If the Congress has no right to modify the deadline, then the amendment was no longer pending before the states when Nevada, Virginia and Illinois have ratified it, and thus the amendment has failed. In such a situation the process of passing and ratifying ERA would have to begin anew, and there is a very slim chance of something like this happening in a current political climate. For example, in Idaho v. Freeman (1981), the US District Court for Idaho has found that Congress may modify the deadline even if it is set within the resolution.

If the Congress either had no right to impose a deadline or has a right to modify it and modifies it, the question arises what should be done about the states, which have rescinded their ratifications. As Justice Ginsburg said, “There’s too much controversy about latecomers. Plus, a number of states have withdrawn their ratification. So if you count a latecomer on the plus side, how can you disregard states that said ‘we’ve changed our minds?” (she has further added that she would like to see a new beginning for the ERA).

Amendments XIV, XV and XIX were all passed with some states rescinding their resolutions. However, Amendments XIV and XV were ratified by the required number of states at a moment of their certification, even if the rescinding states were not counted. In the case of Amendment XIX, the Supreme Court ruled in Leser v. Garnet (1922) that ratifications of by Tennessee, West Virginia and Missouri were valid despite state constitutional and procedural provisions allegedly making them inoperable. This is quite different from the current situation – if the rescissions are valid, 5 more states would need to ratify the ERA. Bringing even more confusion is the fact that South Dakota rescinded its ratification by using a sunset clause, and the fact that the lieutenant-governor of Kentucky has vetoed the rescission resolution (it is not clear whether he was allowed to do so as an acting governor, as Article V reserves all actions regarding ratification of constitutional amendments to the state legislatures alone).

Of course, all the questions raised above can only be answered if the Supreme Court considers the case to be justiciable – it could simply rule that the question is political rather than legal, and at this point, it would be up to the Congress to make a decision.

There are many things at stake during the upcoming November election, and the fate of ERA is certainly one of them (even if it is not often talked about). If the case is considered to be justiciable, the President and the Senate will have an enormous impact on who sits at the court when the case is considered. If the question is a political one, then it will be up to Congress to make the decision. In any case, whoever wins the election will be able to determine the future of the women’s rights for the foreseeable future. This is one of the main reasons why it is imperative that as many people as possible turn out to vote this year.