Step one: cleanse the skin?
Back in May, Illinois became the 37th state to ratify the Equal Rights Amendment, or ERA.
It could now, conceivably, become part of the Constitution if just one more state ratifies it — either Alabama, Arizona, Arkansas, Florida, Georgia, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Utah or Virginia.
But what, exactly, is the ERA promising?
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.
But you might be wondering: didn’t the ERA die back in the ’80s? Wasn’t there a deadline, or something? (There was.)
From The New York Times:
Congress, which overwhelmingly approved the Equal Rights Amendment on March 22, 1972, set a seven-year deadline for three-quarters of the states to ratify it. The deadline was later extended to 1982 but that deadline passed with only 35 states on board. They needed 38.
But after advocates saw the 1992 ratification of the 27th Amendment, written by former president James Madison, they questioned the need for a deadline and pursued a different legal strategy.
Opponents, like conservative activist Phyllis Schlafly, criticized the amendment. Some of the arguments against it were detailed in these scenes of Aaron Sorkin’s show The West Wing.
What’s the path forward for the ERA? What chance does it have to pass? And should it? Or are there better ways to work towards gender equality?
Produced by Amanda Williams. Text by Gabrielle Healy.
- Michele Gilman Professor of law; director of Clinical Programs; co-director of the Center on Applied Feminism, University of Baltimore.
- Rep. Carolyn Maloney U.S. Representative for the 12th District of New York; co-sponsor of H.J. Res. 33, a bill to add an Equal Rights Amendment to the Constitution; @RepMaloney.
- Anne Schlafly Cori Chairman of Eagle Forum; @EagleForum
- Carol Robles-Román Co-President and CEO of the ERA Coalition/Fund for Women’s Equality; former deputy mayor for legal affairs and counsel to NYC Mayor Michael Bloomberg; former New York state assistant attorney general for civil rights; @CRoblesRoman
- Delegate Hala Ayala Representative for Virginia's 51st District, Virginia House of Delegates.
Your ERA Questions, Answered
We ran out of time during our Equal Rights Amendment show and didn’t get to all of your questions, but our guest, Professor Michele Gilman, answered some of them below
Even if a 38th state ratifies the amendment, it’s still going to face some legal challenges, right? Yes, there will be at least two legal challenges from ERA opponents: (1) the 1982 deadline for ratification has passed; and (2) five states have rescinded their votes to ratify.
Ratification of a Constitutional amendment requires approval by a two-thirds vote of the Senate and the House of Representatives as well as three-fourths of the states, or 38 states. The original language of the ERA, approved by Congress in 1972, had a seven-year deadline for ratification. Only 35 states voted to ratify it by 1979. Congress then extended the deadline for three more years, until 1982, yet no states ratified the ERA during that extended period. Since the deadline expired, two more states voted to ratify the ERA — Nevada in March of 2017 and Illinois in May of 2018. This leaves one more state to reach the 38 required.
However, it is not clear whether any ratifications after the deadline count. This is a case of first impression, meaning the Supreme Court has never ruled on this exact issue. In two cases, the Supreme Court has stated that it is within Congress’s power to determine ratification deadlines and also that ratification votes should be reasonably contemporaneous with Congress’s approval. However, this latter proposition is now questionable. That’s because of the Madison Amendment — an amendment that was approved and adopted in 1992, over 200 years after Congress first approved it. (The Madison Amendment, written by James Madison, is the 27th Amendment, and it bars Congressional pay changes from going into effect until the following term.) The approval of this Amendment suggests that there is no time limit on ratification. However, the Madison Amendment did not contain a deadline when it originally passed Congress, so it is not directly on point. Regardless, the majority of scholars to consider the issue conclude that Congress could choose to approve ratification votes taken after the deadline passed. Overall, this issue is certainly open to debate.
Five states rescinded their ratifications between 1972 and 1982 (Idaho, Kentucky, Nebraska, South Dakota, and Tennessee). The weight of legal authority and historical practice is that that rescissions are not valid. For instance, two states rescinded their ratifications of the 14th Amendment (establishing Equal Protection), but the Amendment was adopted regardless. In short, states probably do not get to change their minds once they ratify.
Why does it go back to Congress after the 38th state ratifies? Didn’t they already pass it?
Congress would need to vote to extend or remove the 1982 deadline. If Congress wants to start over and pass the ERA again, as Rep. Carolyn Maloney talked about trying to do during the discussion, it would need two-thirds vote in each the House and Senate, and approval by 38 states. It would be completely separate from the process of ratifying the 1972 ERA, which is only one state shy of ratification. While this would avoid the legal controversy surrounding approval of the original ERA, it would require starting the process all over.
Even once an ERA is passed, won’t it depend on the courts’ interpretation of the text?
All Constitutional provisions are subject to interpretation by the Supreme Court, and their meanings can shift over time. The current Supreme Court regularly splits its votes 5-4 in interpreting the same text. Different Justices bring different interpretive tools and values to bear on constitutional and statutory language.
What do we know about how the text would apply to the LGBT community?
This is hard to predict. The victory for same sex marriage was based on constitutional liberty interests, not a conception of discrimination. In the Title VII (of the Civil Rights Act of 1964) context of employment, some courts have recognized that harmful stereotypes about LGBT people in the workplace are discriminatory. Yet few courts view pure animus on the basis of sexual orientation as falling within sex discrimination. This is why many states have passed laws specifically forbidding discrimination on the basis of sexual orientation. It will depend on whether courts view sexual orientation discrimination as a form of sex discrimination, or something else entirely that requires separate protections.
And why does the 1972 ERA text use “sex” rather than “gender?”
The use of the word “sex” is an old-fashioned conception of gender-based discrimination. Gender would be a preferable word because it recognizes that discrimination is not only based on biological characteristics, but also on societal and cultural norms about the appropriate roles of women and men.
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