Equal Rights Amendment
The Equal Rights Amendment (ERA) is a proposed amendment to the U.S. Constitution that would, if added, explicitly prohibit sex discrimination. It was written by Alice Paul and Crystal Eastman and introduced in Congress in December 1923 as a proposed amendment to the United States Constitution.[1][2][3] The purpose of the ERA is to guarantee equal legal rights for all American citizens regardless of sex. Proponents assert it would end legal distinctions between men and women in matters of divorce, property, employment, and other matters.[4] Opponents originally argued it would remove protections that women needed. In the 21st century, opponents argue it is no longer needed and some fear it would be extended to abortion and transgender rights.[5]
When the 14th Amendment to the United States Constitution was adopted in 1868, the Equal Protection Clause, which guarantees equal protection of the laws, did not apply to women. It was not until 1971 that the United States Supreme Court extended equal protection to sex based discrimination.[6] However, women have never been entitled to full equal protection as the Court subsequently ruled that statutory or administrative sex classifications were subject to an intermediate standard of judicial review, a less stringent standard than that applied to other forms of discrimination.[7]
In 2011, Supreme Court Justice Scalia stated:
If the ERA were to be enshrined in the Constitution, then there would be an express prohibition on sex based discrimination.
Early history[edit]
Following its initial introduction in 1923, the Equal Rights Amendment was reintroduced in each subsequent Congress, but made little progress. Between 1948 and 1970, chairman Emanuel Celler of the House Judiciary Committee, refused to consider the ERA.[9]
In the early history of the Equal Rights Amendment, middle-class women were largely supportive, while those speaking for the working class were often opposed, pointing out that employed women needed special protections regarding working conditions and employment hours.
With the rise of the women's movement in the United States during the 1960s, the ERA garnered increasing support, and, after being reintroduced by Representative Martha Griffiths in 1971, it was approved by the U.S. House of Representatives on October 12, 1971, and by the U.S. Senate on March 22, 1972, thus submitting the ERA to the state legislatures for ratification, as provided by Article V of the U.S. Constitution.
Congress included a ratification deadline of March 22, 1979, in the proposing clause (preamble) to the resolution in response to opposition from Representative Celler and Senator Sam Ervin.[10] Through 1977, the amendment received 35 of the necessary 38 state ratifications.[a] With wide, bipartisan support (including that of both major political parties, both houses of Congress, and presidents Richard Nixon, Gerald Ford, and Jimmy Carter),[11] the ERA seemed destined for ratification until Phyllis Schlafly mobilized conservative women in opposition. These women argued that the ERA would disadvantage housewives, cause women to be drafted into the military and to lose protections such as alimony, and eliminate the expectation that mothers obtain custody over their children in divorce cases.[12] Many labor feminists also opposed the ERA on the basis that it would eliminate protections for women in labor law, though over time more and more unions and labor feminist leaders became supportive.
Five state legislatures (Idaho, Kentucky, Nebraska, Tennessee, and South Dakota) voted to rescind their ERA ratifications. The first four rescinded prior to the original March 22, 1979 ratification deadline, while the South Dakota legislature did so by voting to sunset its ratification as of that original deadline. It remains unresolved whether a state can legally revoke its ratification of a federal constitutional amendment. However, although New Jersey and Ohio rescinded their ratifications of the 14th Amendment, they were ignored and it was added to the Constitution.[13]
In 1978, Congress passed by simple majorities in each house, and President Carter signed, a joint resolution that extended the ratification deadline to June 30, 1982. However, no additional state legislatures ratified the ERA between March 22, 1979, and June 30, 1982, so the validity of that disputed extension was never tested.[14] Since 1978, attempts have been made in Congress to extend or remove the deadline.
In the 2010s, due in part to fourth-wave feminism and the #MeToo movement, there was renewed interest in adoption of the ERA.[15][16] In 2017, Nevada became the first state to ratify the ERA after the expiration of the deadlines,[17] and Illinois followed in 2018.[18] In 2020, Virginia's General Assembly ratified the ERA,[19][20] claiming to bring the number of ratifications to 38. However, experts and advocates have acknowledged the legal uncertainty of the Virginian ratification, due to the expired deadlines and five revocations.[21] In 2023, the Congressional Caucus for the Equal Rights Amendment was founded by House Democrats.[22]
Lawsuit regarding deadline extension[edit]
On December 23, 1981, a federal district court, in the case of Idaho v. Freeman, ruled that the extension of the ERA ratification deadline to June 30, 1982 was not valid, and that the ERA had actually expired from state legislative consideration more than two years earlier on the original expiration date of March 22, 1979. On January 25, 1982, however, the U.S. Supreme Court stayed the lower court's decision.
After the disputed June 30, 1982, extended deadline had come and gone, the Supreme Court, at the beginning of its new term, on October 4, 1982, in the separate case of NOW v. Idaho, 459 U.S. 809 (1982), vacated the federal district court decision in Idaho v. Freeman,[107] which, in addition to declaring March 22, 1979, as ERA's expiration date, had upheld the validity of state rescissions. The Supreme Court declared these controversies moot based on the memorandum of the appellant Gerald P. Carmen, the then-Administrator of General Services, that the ERA had not received the required number of ratifications (38) and so "the Amendment has failed of adoption no matter what the resolution of the legal issues presented here."[108][109]
In the 1939 case of Coleman v. Miller, the Supreme Court ruled that Congress has the final authority to determine whether, by lapse of time, a proposed constitutional amendment has lost its vitality before being ratified by enough states, and whether state ratifications are effective in light of attempts at subsequent withdrawal. The Court stated: "We think that, in accordance with this historic precedent, the question of the efficacy of ratifications by state legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment."[110]
In the context of this judicial precedent, nonpartisan counsel to a Nevada state legislative committee concluded in 2017 that "If three more states sent their ratification to the appropriate federal official, it would then be up to Congress to determine whether a sufficient number of states have ratified the Equal Rights Amendment."[111] In 2018, Virginia attorney general Mark Herring wrote an opinion suggesting that Congress could extend or remove the ratification deadline.[112][113]
Lawsuits regarding ratification[edit]
Alabama lawsuit to opposing ratification[edit]
On December 16, 2019, the states of Alabama, Louisiana and South Dakota sued to prevent further ratifying of the Equal Rights Amendment. Alabama Attorney General Steve Marshall stated, "The people had seven years to consider the ERA, and they rejected it. To sneak it into the Constitution through this illegal process would undermine the very basis for our constitutional order."[114]
South Dakota Attorney General Jason Ravnsborg stated in a press release:[115]
