Those of us who remember the 1970’s recall the battles over the Equal Rights Amendment. That warfare came to a discouraging end about 40 years ago. Yet, like some 70’s rock bands, the ERA is still alive and poised for renewed struggle. The Amendment reads as follows:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:
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.
Sec. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Sec. 3. This amendment shall take effect two years after the date of ratification.
Following approval by the House in 1971 and by the Senate the next year, it went to the States for ratification pursuant to Article V of the US Constitution. According to the introductory ”resolving” clause of the Amendment, the deadline for ratification was March 22, 1979. Through 1977, 35 of the necessary 38 states had ratified the amendment and it seemed destined to become law. Until, that is, Phyllis Schlafly mobilized conservative women in opposition, arguing the ERA would disadvantage housewives without job skills, cause women to be drafted and to lose protections such as alimony, and eliminate the perceived bias favoring the award of custody to women in divorce cases.
And who can forget the fevered chatter about unisex bathrooms? Religious conservatives argued that the amendment would guarantee universal abortion rights and the right for homosexual couples to marry. In 1978, President Carter signed a joint Congressional resolution extending the ratification deadline to June 30, 1982. But, that deadline passed and no additional states signed on. Indeed, five states (Idaho, Kentucky, Nebraska, Tennessee, and South Dakota) revoked their ERA ratification.
Interest in the ERA regained traction in recent years. In 2017, Nevada became the 36th State to ratify, and Illinois followed in 2018. On November 8, 2019, Representative Jackie Speier (D-CA) re-introduced a bill to attempt to remove the deadline to ratify the amendment. As of today, her bill has 224 co-sponsors. But on December 16, 2019, Alabama, Louisiana and South Dakota sued to prevent further ratifying of the ERA, stating, “The people had seven years to consider the ERA, and they rejected it. To sneak it into the Constitution through this illegal process would undermine the very basis for our constitutional order.” Then on January 6, 2020, the US Department of Justice issued an opinion in response to
that lawsuit, stating,“ We conclude that Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the States.”
Yet on January 15, 2020, both houses of the Virginia legislature, now controlled by the Democratic Party, voted to ratify, becoming number 38. On January 30, 2020, Virginia, Illinois and Nevada followed up by filing a lawsuit to require the National Archivist to “carry out his statutory duty of recognizing the complete and final adoption” of the ERA as the 28th Amendment to the Constitution. The Archives confirmed it received Virginia’s request, but said, “The archivist will take no action to certify the adoption” of the ERA, citing legal guidance from the Justice Department.
The League supports the elimination of the ratification deadline and is working with members, interested organizations, and lawmakers on Capitol Hill to move toward final ratification of the ERA. As the League has argued, “It’s been almost 100 years we have been waiting and working for this amendment, let’s not wait 100 more. By passing the ERA, we can firmly and resolutely declare that we believe in equality for all.” But it is still far from clear when or if this will happen. Both the courts and Congress must first grapple with the ratification deadline issue as well as whether the revocation of ratification by five states was effective. Stay tuned.
Meanwhile, California has had its own relatively narrow version of the ERA since 1879. According to Article 1, §8 of the California Constitution, “A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin.”