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50 Years Later, Women Still Lack Constitutional Protections Offered by the ERA

Multi-ethnic group of happy females on a demonstrations for women's rights.As I was contemplating a blog post dedicated to Women’s History Month, events unfolding in Washington captured my attention. On March 17, 2021, the U.S. House of Representatives approved a joint resolution that would remove the expiration deadline set for three-fourths of the states to ratify the Equal Rights Amendment, or the ERA.

Women have been pushing for the ERA for about 100 years. The road has been winding and full of potholes, but like a phoenix rising from ashes, the ERA has once again entered the public consciousness, symbolizing the resiliency of the women’s rights movement and presenting fascinating issues of constitutional law.

What? Is the ERA Still a Thing?

First, I’ll get you up to speed on where things stand. When the ERA was originally introduced in 1972, a joint resolution passed by Congress contained a seven-year deadline for ratification of the amendment by three-fourths of the states. The deadline was subsequently extended to 1982, but three-fourths of the states failed to ratify it in that time.

Finally, in 2020, Virginia became the 38th state to ratify the ERA, meaning three-fourths of U.S. state legislatures had ratified the amendment.

If ratification by three-fourths of the states holds up—and the recission of ratification by other states doesn’t count—then the ERA will become the 28th amendment to the Constitution. This means the U.S. Constitution will explicitly provide that the federal and state governments can’t deny or abridge equality of rights based on sex.

Hence, the reason for the March 2021 vote to remove the expired 1982 deadline. During the vote, the female proponents were dressed in white, the color worn by suffragettes, and donned green “ERA Yes” masks. The sight was impressive.

Supporters say the ERA would ensure state and federal governments proactively prevent discrimination and ensure equality between men and women, including preventing workplace discrimination due to pregnancy, improving access to childcare, and diminishing the pay gap between men and women.

Opponents counter that ratification of the ERA would make it easier to lift abortion restrictions, because they apply only to women, and it could have unintended consequences on women’s scholarships and sports.

The next step would be for the Senate to act to remove the long-expired deadline. However, 60 votes are needed to pass the measure and proponents say they don’t yet have the support.

The ERA: The Early Years

For background on the ERA, I spoke with Dina Ninfo, co-chair of the legislative committee of the Women’s Bar Association of Illinois. Dina and her colleagues have been working to support the ratification of the ERA for years, despite the opposition or indifference of so many. She also filled me in on another battle involving an archivist who refused to certify Virginia’s ERA ratification in 2020 — more on that later.

Let’s take a step back. For decades, women’s rights advocates pushed for an amendment to the Constitution making clear that it would be unconstitutional for the state or federal government to discriminate against women based on their sex.

In 1972, by a two-thirds vote in both houses, Congress passed a joint resolution for an amendment to the U.S. Constitution “relative to equal rights for men and women,” which for many at that time seemed straightforward and uncontroversial.

Joint Resolution
H.R.J. Res. 208, 92nd Cong., 86 Stat. 1523 (1972). Note the seven-year deadline included in the joint resolution.

The next step was ratification by three-fourths of state legislatures. Ratification began swiftly. By the end of 1972, 22 state legislatures had ratified the ERA and by 1977, 35 states had ratified.

Progress slowed, however. Four states (Idaho, Nebraska, Kentucky, and Tennessee) voted to rescind their ratification and one state (South Dakota) passed a resolution stating its ratification would be withdrawn if the ERA wasn’t adopted within the seven-year timeframe.

With the deadline looming, Congress passed a joint resolution extending the deadline to June 30, 1982.

In 1981, a federal district court held that Congress didn’t have the power to extend the deadline. The U.S Supreme Court took the case up on an expedited basis. But when the 1982 deadline passed without the necessary additional ratifications, it dismissed the matter as moot.

Continued Advocacy for Equality

In the years since 1982, federal legislators have introduced many resolutions to start the process over, but none have been adopted.

Meanwhile, advocacy has continued. Supporters asserted that they could still vote to ratify the 1972 joint resolution. They have put forth two main arguments:

  • that the deadline was unenforceable because it was in the proposing clause and not in the text of the amendment, and
  • that Congress can decide an amendment’s timeliness after the final state’s ratification.

Perhaps spurred along by the #MeToo movement, several state legislatures have recently revisited the ERA. Nevada ratified the ERA in 2017, followed by Illinois in 2018, and Virginia in 2020.

Proponents assert that with Virginia’s ratification, as the 38th state to ratify, the ERA became part of the Constitution. This argument assumes the deadline(s) have no effect and that the retractions of the ERA ratification voted by several states have no effect.

But then came the national archivist.

Enter the National Archivist

The national archivist is in charge of receiving notices from the states and certifying any ratified amendment to the Constitution. Amendments to the Constitution are rare and normally certification is a straightforward, apolitical process.

Last year, however, David Ferriero, the current archivist of the U.S., found himself in a quandary. While Virginia’s ratification of the ERA meant that the needed three-fourths of state legislatures had ratified the amendment, two deadlines established by Congress had passed before the last ratification and, within the first deadline, several states had voted to rescind their ratifications.

Ferriero asked the U.S. Department of Justice to weigh in on whether he should certify the amendment.

This presents a curious separation-of-power predicament. The archivist answers to Congress by statute but is part of the executive branch – so where does the final authority over certification rest? In a compelling piece, Robinson Woodward-Burns, a professor of political science at Howard University, argues that final authority rests with Congress, not the executive branch.

Meanwhile, in late 2019 and early 2020, dueling lawsuits were filed. Attorneys general from Alabama, Louisiana, and South Dakota filed a suit in Alabama federal court seeking to block Ferriero from recording the ERA as ratified when Virginia ratified or from recording Virginia’s ratification and directing him to remove the already-recorded but rescinded ratifications of Nebraska, Idaho, Tennessee, Kentucky, and South Dakota.

Meanwhile, a suit was filed in a Massachusetts district court to ensure Ferriero properly certified the Virginia ratification and would not remove prior ratifications of any state.

On January 6, 2020, the Office of Legal Counsel at the Department of Justice issued an opinion saying the ERA couldn’t be certified because, “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.”

So, the National Archives and Records Administration declined to certify, stating that it “deferred to the DOJ” and would abide by the opinion of the Office of Legal Counsel “unless otherwise directed by a final court order.”

ERA: The Ongoing Saga

The attorneys general of the last three states to ratify (Nevada, Illinois, and Virginia), sued the U.S. archivist to compel him to publish and certify the amendment pursuant to his statutory duties. The archivist moved to dismiss, and states that had rescinded their ratifications intervened.

In a ruling issued on March 5, 2021, U.S. District Judge Rudolph Contreras of the D.C. Circuit Court dismissed the case on the grounds that the plaintiffs lack standing and, even if they had standing, are not entitled to mandamus.

The opinion states that the three states had no standing to sue because publication and certification of an amendment are “formalities with no legal effect,” so the archivist’s failure to do so caused no harm.

Further, the opinion denies mandamus because Section 106b permits him to consider whether a state’s ratification complies with a congressionally imposed ratification deadline. And a ratification deadline in a proposing resolution’s introduction is just as effective as one in the text of a proposed amendment. The plaintiffs’ ratifications came after both the original and extended deadlines that Congress attached to the ERA, so the archivist is not bound to record them as valid.

It is safe to expect there will be an appeal from this ruling.

In response to the ruling, Illinois Attorney General Kwame Raoul said:

“While today’s decision is disappointing—particularly as we recognize Women’s History Month—it does not change the fact that women have equal rights under the law.

“I filed a lawsuit with Attorneys General Ford and Herring because we believe all of the requirements have been met for equal rights for all Americans to be enshrined in the U.S. Constitution, and we do not believe that Congress’ arbitrary deadline for the Equal Rights Amendment is effective.

“Today’s ruling may seem like a setback, but we will continue to fight for our Constitution to explicitly prohibit all forms of discrimination, including that based on sex.”

What’s Next?

Ninfo said that she continues to be astounded when people say, “What? The ERA is still a thing?” I guess this reaction is common.

A poll from the Associated Press-NORC Center for Public Affairs Research in early 2020 found that nearly 3 in 4 adults supported the ERA. However, nearly the same number (72%) thought that gender equality was already included in the Constitution.

However, nearly 50 years after the ERA was first introduced, the Constitution still doesn’t guarantee equal rights under the law for all.

Several bar associations and advocacy organizations across the U.S. are continuing to connect women around issues of equality, to raise awareness of ongoing challenges, and to push for the ratification of the ERA.

Bar Associations

Advocacy organizations

  • The ERA Coalition is comprised of some 100 national and local organizations across the country working for the equality of girls and women, boys and men.
  • The National Organization for Women in Nevada has generated a petition calling on President Joe Biden and Vice President Kamala Harris to direct the archivist to certify the ERA.
  • The Feminist Majority Foundation has compiled a website that provides an easy way to contact your legislators on this issue or find advocacy resources such as an ERA Toolkit.
  • She Should Run is a nonpartisan nonprofit focused on increasing the number of women considering a run for public office. The website states that we can’t expect to achieve the best policies when half the population is shut out of the policy-making process.

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