CommonWealth Magazine | Opinion | March 17, 2020
Federal lawsuits seek to resolve issue once and for all
Forty-eight years ago, the world was a very different place for women. In 1972, sexual harassment was not considered to be a form of illegal discrimination; Title IX had not yet elevated women’s athletics to the position of prominence they occupy today; and the Supreme Court had not yet clarified that the equal protection clause of the fourteenth amendment protects women from unfair sex discrimination. So, when Congress approved the Equal Rights Amendment and sent it to the states for ratification, it drew support from both sides of the political aisle.
By 1975, 35 states had ratified the proposed amendment. But the Constitution requires approval by three-fourths of the states (38 of 50) before an amendment can become part of our governing charter. The ERA came up short.
The ERA states: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” This language may seem uncontroversial but, as early ERA opponents noted, it fails to account for situations where biological differences between males and females matter. Thus, opponents worried that the ERA would backfire on women, requiring them to register for the selective service and jeopardizing private female spaces, such as bathrooms or women’s shelters, as well as government programs that provide benefits to women or primary caregivers. And because constitutional amendments cannot be easily fine-tuned or repealed, they regarded the ERA as too blunt an instrument.
Based, in part, on these concerns, legislatures in Idaho, Nebraska, Tennessee, Kentucky, and South Dakota rescinded their ratifications. And during the more than four decades between 1975 and 2017, no additional states signed on.
But in 2017, the Nevada legislature took up the ERA and approved it. In 2018, Illinoisfollowed suit. And in 2020, over 45 years after it was sent to the states by Congress, Virginia became the 38th state — if you include states that rescinded their approval — to ratify the amendment.
So is the ERA law of the land? In a pair of federal lawsuits, one filed in Massachusetts by feminist lawyer Wendy Murphy and another filed in Washington, DC, by three Democratic attorneys general, plaintiffs ask the federal courts to count the actions of the Nevada, Illinois, and Virginia legislatures as valid ratifications but to ignore the more timely rescissions by Nebraska, Tennessee, Kentucky, and South Dakota.
A third case, filed by Republican attorneys general in Alabama federal court, argues that rescinding states should not be counted among the states needed for ratification and that, in any case, the ERA expired decades ago and was, therefore, not legally ratified by additional states this century.
The Republican attorneys general are right.
The United States constitution is, by design, difficult to amend. Our founders wanted to ensure that the passions of the moment would not be elevated to constitutional norms on a whim. Hence, the requirement in Article V that any constitutional change be approved by super majorities of both Congress (two-thirds) and the states (three-fourths).
Citing the 27th amendment, which was ratified more than two centuries after it was proposed by James Madison in 1789, ERA supporters say they can cobble together the requisite supermajority across decades. But unlike the ERA, the 27th Amendment, which prohibits the implementation of pay raises for members of Congress until after the following congressional election, contained no expiration date. The ERA, by contrast, was passed with a seven-year deadline that expired in 1979.
The Supreme Court has held that Congress may impose a deadline for ratification of a proposed constitutional amendment, so it does not languish in perpetuity. The 18th, 20th, 21st, and 22d amendments all included deadlines for ratification but were successfully ratified by ¾ of the states before their deadlines expired.
Unlike the deadlines embedded in these earlier constitutional provisions, however, the ERA deadline is found in the resolution introducing the amendment, rather than in the text of the amendment itself. Ratification proponents claim that, somehow, this makes the deadline invalid. Alternatively, they argue that if Congress can impose a deadline, it can also extend it, as Congress attempted to do in 1978 when, by simple majority, it extended the deadline for ratification of the ERA until 1982. And they claim Congress can do so retroactively, as the Democratic controlled House of Representatives attempted to do on February 13 when it voted 232-183 to dissolve the deadline. The Senate has not acted on the measure.
It is unlikely, however, that the federal courts will uphold an attempt to repeal the ratification deadline retroactively — particularly where repeal lacks the support of a supermajority (⅔ of Congress) as required by Article V. Indeed, no less an authority than Ruth Bader Ginsburg recently indicated that the amendment expired decades ago.
Ginsburg is not the only justice to have suggested that the ERA expired long ago. In 1982, the Supreme Court dismissed as moot a challenge to the Idaho legislature’s rescission of its earlier ratification on grounds that the ratification deadline had passed. And both the Department of Justice and the Congressional Research Service have determined that the ERA died last century.
Certainly, much has changed since Congress in 1972 asked the states to approve the Equal Rights Amendment. Today, American women and men are truly equal under the constitution, as well as under state and federal statutes. And in 2020, American women are healthier, wealthier, freer, and more prosperous than ever before.
So, who cares if the ERA is approved? Well, in an era when the legal meaning of “sex” seems to be up for grabs, amending the constitution to require sex equality will certainly have consequences that the framers of the amendment, and those who voted to approve it in the 1970s, never anticipated. It seems only fair then that we heed Justice Ginsburg’s suggestion that those who support the amendment put it “back in the political hopper” and start again.
Jennifer C. Braceras is director of Independent Women’s Law Center