Primary Source: The Equal Rights Amendment, Part 4
The ERA has reached its threshold, but does it count?
The state of Virginia, already in the thick of so many historic events in the United States, has made history yet again. On January 15 of this year, it became the 38th and last-needed state to approve the Equal Rights Amendment, guaranteeing in the Constitution equal rights to both men and women.
But does it count?
The ERA text is simple, stating 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.” In a previous three-part series, I explored the first four decades after its initial introduction, its tumultuous revival in the 1970s and subsequent failure, and its current revival.
The problem for supporters, however, is two-fold:
- Has the deadline passed? In 1972, Congress set a seven-year deadline for states to ratify the amendment. Then the 1979 Congress extended the deadline to 1982. The amendment failed to gain the necessary 38 state ratifications by that deadline too, though supporters argue that nothing in Article V of the Constitution, which spells out the amendment process, mentions anything about deadlines.
- Do the rescissions count? Four states — Nebraska, Tennessee, Idaho and Kentucky — voted to rescind their approvals. An additional state — South Dakota — inserted into its ratification a sunset provision: its approval would be nullified at the 1979 deadline if the amendment wasn’t approved nationally by then. The Constitution says nothing about taking back a ratification, so do the rescissions count?
After nearly fifty years since the Equal Rights Amendment stalled and ran out of time for ratification, and almost 100 years after it was first proposed, it’s back in the news with as much vengeance — and confusion — as its last go-round in the 1970s. What are the arguments today for and against the ERA, and have they changed since the 1970s?
A U.S. representative argues that the ERA is still needed today. (2020)
In an effort to knock the legs off the deadline argument, the House of Representatives voted in February this year to retroactively remove the 1982 deadline. But the ERA’s future has not clarified. It’s not certain the bill will pass the Senate, and the White House’s Office of Legal Counsel considers the ERA expired. The day after voting for the bill, Democratic U.S. Representative Lauren Underwood of Illinois released a statement describing why the ERA is needed today. According to recent polls, almost three-quarters of Americans agree.
We live in an era where women are leading in ways that they never have before. Women are breaking down barriers and shattering glass ceilings in education, at work, in the law, in the military, and at home. But legal gender discrimination, pay disparities, and inequality remain. And they won’t go away on their own. So, when people question if we still need the ERA. I am here to say, unequivocally, yes. Today, women still aren’t paid equally for equal work, women face discrimination for being pregnant, and women face sexual assault and domestic violence. It’s unacceptable. Americans needed protections like these when the ERA was first proposed in 1923 and we still need these protections today.
A law professor insists the deadline must hold. (2019)
In November 2019, Democrats won full control of Virginia’s government for the first time in 25 years. ERA supporters, who had Virginia in their sites as the potential state to break the 38-state barrier, were jubilant. But University of Virginia law professor Saikrishna Prakash argued that, even if the new state legislature ratified the amendment, the deadline was valid and had already passed. Prakash makes reference to the 27th Amendment, the “Pay Proposal,” which was proposed in 1789 and ratified in 1992.
To be sure, the Constitution says nothing directly about time frames for lawmaking or amendment passage, but that doesn’t mean it doesn’t speak at all on the topic. It assumes and implies a great deal. No one thinks that Congress can pass laws “inter-generationally,” with the House voting for a bill in the 18th century, the Senate in the 19th century and the president receiving it and signing it into law in the 20th. Though the Constitution does not expressly forbid this wild scenario, it implicitly does. The same is true for amendments, both their proposal and their ratification. The various acts necessary to make an amendment cannot stretch across decades or centuries. . . .
And there is the additional wrinkle of the stated expiration date attached to the Equal Rights Amendment when it was first passed. Where the 1st Congress was silent on an expiration date for the Pay Proposal, the 92nd Congress was forthright about the ERA. The debate on its extension, and the fact that the extension itself had a deadline, only underlines the sensible rule: Amendment proposals have a shelf life. Some have suggested that the Constitution somehow prevents setting a deadline, but there is no basis for that argument by implication or in plain text. Whether we honor the original deadline, 1979, or the extension to 1982, the ERA has been dead for decades.
In September, Ginsburg — Supreme Court Justice Ginsburg — told an audience at Georgetown University that we ought to “start over again” on the ERA. Once again, I’m with her: To revive it, the two chambers of Congress must pass it again, and three-quarters of the states must ratify. That seems unlikely in our polarized times, but that is what a sound reading of our Constitution requires.
A lawyer wonders, “Why can’t states change their minds?” (1959)
Four states have rescinded their ERA approvals and one state’s approval has expired. In the late 1950s, in a different case, there was a clamor for a constitutional convention to discuss limiting income taxes. At first it looked as if the required two-thirds of the states had submitted applications to call a convention, as laid out in Article V, but upwards of thirteen states then rescinded their applications and the figure fell below the required threshold. Then, as now, legal scholars grappled with the question: After initial approval, can states change their minds? Frank Grinnell of the Massachusetts Bar Association, writing before the ERA was submitted to the states, argued yes.
What sound reason is there for saying that ratification by a state legislature is irrevocable if a succeeding legislature votes to revoke before the requisite number of states have ratified? Certainly it seems peculiar if a state can change its mind in favor of, it cannot also change its mind against, ratification. Is not the notion that a state can change its mind in only one direction a most stultifying doctrine to apply in these days to the representatives of the people of the United States? How do the people differ from an individual in this respect? No one knows what amendments may be submitted in the future as the result of political excitement; and, if the entire national structure is to be submitted to the hasty political action of state legislatures without any opportunity for reconsideration, the country may wake up and find itself in a most serious situation some day.
Two scholars say, “What’s decided is decided.” (1978)
As the original 1979 deadline neared for ratifying the ERA, opponents, led by Phyllis Schlafly, picked up steam and sowed doubt as to the consequences of passing the amendment. They feared it would lead to the legalization of abortion, drafting women into the military, and men using women’s bathrooms, among other things. This was enough to make the four above-named state legislatures reconsider and rescind their approval votes. In the midst of this debate, Connecticut Representative Samuel Freedman and lawyer Pamela Naughton argued that the rescissions shouldn't be accepted.
Only in modern times, with the advent of the Eighteenth Amendment, has Congress attached a time limit to the ratification of amendments. If in the future it does not, would the validation of rescission have any adverse effects? When, in effect, must a state stop changing its mind? In the absence of a directive, who decides when the scrambling ceases? . . .
But even opponents of ERA concede a period of finality. And administrative confusion alone demands an end to the process at some point. Otherwise the problems ensuing from a rash of ratifications and rescissions at the last minute before the deadline for ratification would be unbearable. In fact, a strong argument for disallowing rescission has been made on the basis of just such confusion in the administering of the law.
A Supreme Court Justice urges ERA activists to start over (2020).
Speaking to the National Press Club in 2014, Supreme Court Justice Ruth Bader Ginsburg, long a supporter of the ERA, spoke of equal rights as they relate to her granddaughters: “I would like my granddaughters, when they pick up the Constitution, to see that notion — that women and men are persons of equal stature — I’d like them to see that is a basic principle of our society.”
In a program at Georgetown University Law Center this February, Ginsburg reiterated her support. She did, however, surprise ERA activists by urging them to “start over.” Journalists asked, “Did Ruth Bader Ginsburg just kill the Equal Rights Amendment?”
There is a startling difference if you pick up law books — state or federal. Once riddled with gender-based differentials, almost all of the explicit gender-based differentials are gone.
[But] Every constitution in the world written since 1950, even Afghanistan, has the equivalent of an equal rights amendment. And we don’t. My notion was, I would like to show my granddaughters that the equal citizenship stature of men and women is a fundamental human right. It should be right up there with free speech, freedom of religion, ban on discrimination based on race or national origin . . . . the union will be “more perfect” by that simple statement, that “men and women are persons of equal citizenship stature” is part of our fundamental instrument of government. So even if the argument is largely symbolic, it is a very important symbol. Why should the rest of the world have the equivalent of an equality guarantee, and the United States does not? . . .
[However,] I would like to see a new beginning. I’d like [the ERA] to start over. There’s too much controversy about latecomers — Virginia, long after the deadline passed — plus a number of states have withdrawn their ratification. If you count a latecomer on the plus side, how can you disregard states that said, “We’ve changed our minds”?
I am currently working on a book about Ah Toy, the first Chinese brothel madam in gold rush San Francisco.
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