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Equal Rights Amendment lies in legal limbo, as decades of debate continue

Exactly 100 years ago this month, the passage of the 19th Amendment gave women the right to vote. The Equal Rights Amendment, stating men and women shall have equal rights throughout the United States, introduced in Congress 97 years ago, however, has yet to pass. 

It could soon become law or be derailed yet again, depending on how the Senate and possibly the courts view a 1982 deadline for ratification that has long passed. 

The 1923 proposal reads:

“Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” 

After being buried in committees for decades, it passed in the House in 1971 and the Senate in 1972. The U.S. Constitution requires a proposed amendment be passed by two-thirds of the House and Senate. 

The amendment then needed three-fourths of state legislatures to ratify it to be added to the Constitution. 

 From 1972 to 1977, 35 state legislatures ratified the amendment, leaving just three more needed for it to become enshrined in the Constitution. 

But a sharp, conservative political author and activist named Phyllis Schlafly and her National Committee to Stop ERA derailed the momentum. By the time the amendment reached its 1982 deadline, which Congress had extended from 1978, it was still three states shy.

(The FX series Mrs. America starring Cate Blanchett as Schlafly, recently aired on Hulu portraying the historical drama.)

When women’s causes gained increased support and exposure on the heels of Donald Trump being elected president, the effort to ratify the ERA was resurrected. State legislative bodies in Nevada and Illinois ratified it in 2019. Virginia became the essential 38th state to ratify the measure in January. 

Now the debate focuses on the validity of the 1982 deadline. 

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Proponents and opponents

ERA proponents point to Article V of the Constitution, which outlines the requirements for passing an amendment and doesn’t call for deadlines. Because the ERA’s deadline was in the preamble, not the text of the amendment, it can be changed or eliminated, they argue. A resolution to eliminate the deadline just passed the house in February. Its companion resolution introduced in the Senate in January has yet to come to a vote. 

Based on a Republican majority in the Senate, it’s unlikely the measure will pass. Though it was a nonpartisan issue for many years, it became so during Schlafly’s challenges.  

Opponents feel that without adherence to deadlines, an amendment is never officially dead. If Congress felt the need to extend the original 1978 deadline before it expired, then it seems the 1982 deadline has sticking power. 

ERA proponents say the deadline is a technicality of sorts, and worth eliminating to pass this important amendment. 

Lorna Taylor

“Currently the only protection women have under the Constitution is the right to vote. And 100 years since American women were granted voting rights by passage of the 19th Amendment, women are still not otherwise included in the Constitution,” said Lorna Taylor, past president of the Athena Society of Tampa Bay, a nonpartisan Florida organization focused on women’s progress. “We have laws that protect women, however, they can be rolled back by a simple act of Congress. A recent example of this is the critically important Violence Against Women Act that was allowed to expire by Congress in 2019.”

Taylor, who is also president and CEO of Premier Eye Care, cited ongoing support for the amendment. Recently, corporations and nonprofit entities signed onto amicus briefs that supported the ratification of the ERA. These corporations included Morgan Stanley, Google, Twitter, Microsoft and Mastercard.  “This is a clear signal from the corporate world that they understand equality for women is an economic driver.  As women reach equality in pay and advancement, there is an economic impact that is far-reaching in the eradication of poverty and the boost to the economy.”  

Taylor cited the Institute for Women’s Policy Research, “if women in the United States received equal pay with men, poverty for working women would be reduced by half and the U.S. economy would have added $482 billion (equivalent to 2.8 percent of 2014 Gross Domestic Product) to its economy.”

Democrat Fentrice Driskell, a representative in the Florida House of Representatives and an attorney, sponsored a bill to ratify the ERA in her state’s legislature. It never got to a vote, but Virginia sealed the deal to become the 38th state to ratify the ERA. 

“The most common arguments we heard in opposition to the bill were that women are already protected by the 14th Amendment (which grants equal protection of the laws to all citizens), and that wage inequality either does not exist or is unrelated to gender discrimination, and that time has run out for states to ratify the ERA,” Driskell explained. She believes the amendment is crucial and there needs to be more defined language in the Constitution protecting women from discrimination. 

There is no reason to eliminate the deadline because the ERA became null and void when it wasn’t ratified by three-fourths of states before its deadline, according to Thomas Jipping, deputy director of the Edwin Meese III Center for Legal and Judicial Studies and a senior legal fellow in the Center, which is part of the Heritage Foundation conservative think tank in Washington, D.C.

Thomas Jipping

“It expired. It disappeared. It no longer exists,” he said. “It’s out of Congress’ hand. They can’t retroactively amend legislation that’s no longer pending before the states. …  Walmart can’t sell milk past its expiration date. The deadline is a deadline.”

Aside from believing the measure is no longer valid, Jipping thinks the reasons advocates stated for proposing the amendment in 1923 are obsolete.

They said legislators would not by themselves eliminate discriminatory laws against women and the courts by themselves would not interpret the constitution to cover the equality principle,” he said. Courts and legislatures, however, have protected women from discrimination without the mandate of a constitutional amendment, he said.

Supreme Court rulings set mixed presidents

In the 1921 case of Dillon v. Gloss, the Supreme Court concluded that Article V requires that an amendment proposal by Congress and ratification by the states must be close in time.

In Coleman V. Miller in 1939, however, the Supreme Court decided it could not judge how long a proposed amendment might last, and that it was for Congress to decide, for example, by inserting a time limit in its original proposal. 

The most recent amendment, the 27th, which addresses congressional pay, was added to the Constitution in 1992, 203 years after it was introduced. There was controversy at the time, but it is now a valid part of the Constitution. 

ERA proponents “say we spent 200 years adopting this amendment, we can spend 40 adopting the ERA,” said Lou Virelli, who teaches Administrative Law, Civil Procedure and Constitutional Law at Stetson University College of Law in Florida. 

He noted, however, that it seems courts have not given the 27th Amendment as much weight because of the lag between its proposal and ratification. Lawsuits brought under that amendment have not fared very well. 

“The other elephant in the room, five states that ratified the ERA have since voted to rescind ratification. It’s not clear that the rescission is allowed,” Virelli said. The state legislatures that withdrew their support of the amendment between 1973 and 1979 are: Nebraska, Tennessee, Idaho, Kentucky and South Dakota.

“A federal judge in Idaho was going to allow the rescission (in 1981),” he said. “The Supreme Court took it and said the arguments are irrelevant, it doesn’t matter because the deadline is up. So we don’t have a Supreme Court decision on rescission.”

If the Democrats gain a majority in the Senate in the next election, and the ERA deadline is eliminated, there is still the question of rescission. If the deadline is not eliminated, there is precedent showing the amendment is still alive. Either way, Virelli predicts there will be lawsuits filed and the ERA debate will continue for some time to come. 

Contact Katherine Snow Smith at Katherine@legalexaminer.com. Follow her on Twitter at @snowsmith.