The ERA’s New Era

On January 20, 2020, Virginia became the thirty-eighth state to ratify the Equal Rights Amendment. This was likely a surprise to the majority of Americans, who believed the United States Constitution already guaranteed women rights equal to those of men.

Yes, despite being introduced into Congress almost a century ago and passing both chambers a half-century later, and despite the fact that it has overwhelming public support, the Equal Rights Amendment still hasn’t been adopted.

The ERA is a mere three lines long, and those lines changed very little in intent in the five decades between its drafting in 1923 and its passage by Congress in 1972—a testament to their timelessness. As originally written:

Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction. Congress shall have power to enforce this article by appropriate legislation.

As passed:

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.
Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3: This amendment shall take effect two years after the date of ratification.

Interestingly, the word “women” does not appear anywhere in the amendment—it prohibits discrimination based only “on the basis of sex.” Because of this wording, LGBTQ+ rights advocates believe the ERA has the potential to protect all genders, including trans, nonbinary, and queer people, and may even prohibit discrimination based on sexual orientation. This, of course, depends on how future courts interpret the amendment, should it be adopted.

A quick civics lesson on how the Constitution is amended: first, an amendment must be proposed, either by two-thirds of the state legislatures calling a constitutional convention (this has never happened) or by Congress passing a proposed amendment with a two-thirds majority vote in both the House and the Senate. Next, the proposed amendment goes to the states for ratification, which can be done in one of two ways: either through a ratifying convention (which has only been done once, for the Twenty-First Amendment repealing prohibition), or by vote of the state legislature. Three-fourths of the states (presently thirty-eight of the fifty) must ratify for the amendment to be adopted.

After the ERA was officially proposed by Congress, it went to the states for ratification with a deadline of seven years. In 1978, Congress extended that deadline to June 30, 1982. On that day, with only thirty-five of the necessary thirty-eight states having ratified, the ERA appeared to be dead. (Thanks in large part to Phyllis Schlafly and her pies.)

However, women’s rights advocates, including humanists, have continued the fight. After a renewed push, three additional states ratified the ERA despite the lapsed deadline—Nevada in 2017, Illinois in 2019, and Virginia just a few weeks ago. It took thirty-eight years to get all thirty-eight states, but we got ’em! Equal rights for women, guaranteed by the Constitution! Right?

Not quite. A number of potential roadblocks remain. Five of those thirty-eight states (Nebraska, Tennessee, Idaho, Kentucky, and South Dakota) reversed their ratifications—all of them prior to the 1982 deadline—although some ERA advocates suggest there’s no legal basis for rescinding ratification. There’s also some precedent for ignoring withdrawn ratifications: New Jersey and Ohio passed resolutions rescinding their ratifications of the Fourteenth Amendment in 1868, but they were still included on the list of ratifying states. In fact, the Trump Justice Department admitted the DOJ had previously concluded that ratifications cannot be rescinded. Regardless, some still argue that because of those rescissions, the Fourteenth Amendment was never actually ratified, and are likely to argue the same here.

The second hurdle is the long-passed deadline for ratification. The Justice Department has taken the official position that because the congressional resolution officially proposing the ERA has expired, it’s no longer pending and may not be adopted unless it’s re-proposed by Congress and ratified anew by thirty-eight states. In other words, we have to start from scratch. The National Archives and Records Administration—the agency responsible for certifying the ratification—has said it will follow that guidance.

Some argue, though, that the ERA shouldn’t have had a deadline at all, and that because the deadline was within the preamble to the resolution and not the text itself, it wasn’t part of the language ratified by the states, meaning those ratifications aren’t subject to the deadline. Alternatively, Congress could just vote to extend the deadline, as has been attempted every year since 2011. For the first time, the bill made it past committee, and H.J.Res.79 removing the deadline for ratification of the ERA was passed by the House of Representatives on February 13.

Despite being a joint resolution (S.J.Res.6), it seems unlikely the bill will be passed in the Senate (or even come up for a vote), and even less likely the president will sign it into law. Several states have filed lawsuits on both sides of the argument, so this one may be decided by the courts.

For now, it’s mostly a waiting game for activists—but that doesn’t mean there’s nothing you can do. Contact your senators to encourage them to support S.J.Res.6. Vote for representatives who support the ERA, help others register to vote, and support other organizations doing that work. Help educate the 72 percent of Americans who think the Constitution already protects against gender-based discrimination by publicly showing your support for the ERA.

In 1923 the average income in the US was about $7,000. The first portable radio had just been invented, but it would still be a few years before the first international phone call. Electric typewriters weren’t being sold yet, but cars with steam engines were, and there was no such thing as a commercial airline. Women (albeit only white women) had cast their very first votes in an American presidential election just a few years before. That was the world when suffragettes Alice Paul and Crystal Eastman proposed the sentence, “Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.” Nearly a century later, I carry an entire computer in my pocket, own an electric car, and will take several flights this year, including one across the Atlantic. But the US Constitution still doesn’t guarantee my rights. It’s well past time it did.