The proposed Equal Rights Amendment, which fell just a few states short of ratification in the 1970s, came up for a hearing in Congress two weeks ago, its first in 36 years. It was an important moment in the newly revived ratification effort, which began when the Nevada Legislature unexpectedly voted in 2017 to endorse the ERA 40 years after the last state had done so. Illinois did the same the following year, leaving the proposed ban on sex discrimination just one state shy of the three-fourths required to ratify a constitutional amendment, and interest in the ERA surged.
But the discussion in the House Judiciary subcommittee also showed that this important amendment has a difficult path ahead. It’s not as simple as a vote in one more state legislature. Congress had set a deadline for states to ratify the ERA, even though the Constitution requires no such timetable, and it expired in 1982. A bill by Rep. Jackie Speier (D-Hillsborough) would retroactively remove the deadline. Then there’s the fact that five states voted to rescind their ratifications of the ERA back in the 1970s.
These legal complications have led some to argue that the best way forward is to go back to the beginning. That’s the opinion of Elizabeth Price Foley, a conservative legal scholar who testified at the hearing on April 30. Otherwise, she said, the ERA could be “birthed under a shadow of constitutional illegitimacy.” She added, “Why not start fresh? And then there could be no doubt.”
There’s an appeal to a clean process, without a deadline this time. Surely it would be a cinch to ratify a new ERA now, when many of the ramifications feared by opponents have been rendered moot. (Women in war zones? Oh my stars!) Who could argue against gender equality in 2019? Even the most conservative-leaning states have seen tremendous advances for women in positions of political and financial power.
And it might work in a rational world. But that’s not where we live. For starters, getting two-thirds of each chamber of this polarized Congress to agree on anything, let alone to amend the U.S. Constitution, seems like an impossible task.
Then it would have to win approval in 38 state legislatures, which brings up a new wrinkle. Some opponents of abortion argue that the ERA would give more constitutional protection to abortion rights, which is problematic for the amendment in states where lawmakers are seeking to roll back access to abortion. A ratification vote failed to happen this year in the Arizona Legislature in large part because of people like Cathi Herrod, president of the conservative nonprofit Center for Arizona Policy, who said the new ERA effort is just a ruse to enshrine abortion in the U.S. Constitution.
Robert Marshall, a former state lawmaker in Virginia, explained the argument this way: “Any sex-based distinction in a law would be unconstitutional under the ERA, and a law banning abortion clearly makes a sex-based distinction because only women become pregnant.”
There’s no telling whether the courts would buy that argument. Nevertheless, if the goal is to get the ERA passed, the most reliable approach is to enact the Speier bill and forge ahead.
That’s not a cynical strategy to derail opponents; rather, it is both legal and appropriate. Article 5 of the U.S. Constitution confers the right of Congress to manage the ratification process. The U.S. Supreme Court said in 1939 that this means Congress, and Congress alone, has the power to decide the viability of a constitutional amendment. Furthermore, Congress has routinely revised its own deadlines retroactively over the years.
As for the five states that rescinded their ratifications more than 40 years ago, ideally they would vote to rescind their rescissions. But it should not matter either way. Other amendments, notably the 14th, were declared ratified even after states had voted to retract their endorsements. But those states were included in the official list of ratifiers, lending credence to the theory advanced by some constitutional scholars that ratification is a one-way street for states.