Why Is the Equal Rights Amendment Still in the News?

            Families, communities, and the United States are stronger without the Equal Rights Amendment (ERA). In March 1972, Congress sent the Equal Rights Amendment to the states for ratification. The proposed amendment had a seven-year deadline for ratification. The deadline was extended, but only 35 of the required states approved the ERA – and five of those states rescinded their support for it.

Most Americans considered the ERA to be dead as of June 30, 1982. However, two states are trying to bring it back to life after 40 years of being dead. Illinois and Nevada sued the archivist of the United States, claiming that the ERA is already part of the Constitution. The case was argued this week before the U.S. Court of Appeals for the District of Columbia Circuit. Thomas Jipping at The Heritage Foundation explained what is happening.

Constitutional amendments proposed by Congress begin as resolutions introduced in the House or Senate. Of the thousands of resolutions, on a host of subjects, introduced since America’s founding, only 33 had the two-thirds support of Congress to be proposed, and 27 of those were approved by three-fourths of the states.

Four of the unratified amendments are still pending before the states because Congress did not set a ratification deadline, though no states have ratified any of them for nearly a century. One amendment, proposed in 1978 to give the District of Columbia congressional representation, expired when only 16 states ratified it by its seven-year ratification deadline.

That leaves the ERA.

The last state to ratify the ERA before its expiration date was Indiana in 1977. Then, Illinois passed a resolution purporting to ratify in 2017, Nevada did so in 2018, and Virginia followed in 2020.

Advocates claim that these “ratifications” were valid even decades after the deadline, while ratification rescissions by five states before the deadline were invalid.

Do the math, they say, 38 total states mean the ERA is officially part of the Constitution.

On advice of the Justice Department, however, the archivist of the United States concluded that those approvals were not legally sufficient, and the three latecomers originally sued in 2020 to force the archivist to officially publish in the Federal Register that the ERA is part of the Constitution.

            Virginia has since elected “more sensible political” leaders and obtained wiser legal leadership. However, Illinois and Nevada are still pushing the issue. The two states based their case on where Congress put the ratification deadline for 1972 ERA. Congress put the date in the introductory clause rather than in the proposed amendment itself. They claim, therefore, that the date was not part of the amendment that the states ratified. Jipping continued his explanation with the following information.

Everything rests on that distinction making an enormous constitutional difference. That’s the issue that the appeals court explored on Wednesday.

Where the deadline appears on the page, however, is irrelevant to whether the ERA remains open for ratification 40 years after everyone agreed it had died.

When Congress proposes a constitutional amendment, it votes on the proposing resolution, not simply on the amendment text. Testimony in 1978 during hearings on the ERA’s ratification extension established that 25 states passed an ERA ratification resolution that quoted Congress’ resolution in its entirety, including the ratification deadline.

In five other states, the record shows that the deadline was an explicit consideration during the ratification process.

… Reviving the ERA, which – to again quote the Congressional Research Service – “formally died” 40 years ago is their only hope of ever getting something like this in the Constitution.

            The ERA was not ratified during the extended ratification because states recognized that it would damage women and families. They recognized that the amendment claiming to bring equal rights to women would actually be detrimental to them. Families, communities, and the nation are all stronger because the ERA was not ratified 40 years ago and why it should not be revived now.