“Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” – Section I of the Equal Rights Amendment
Women were deliberately left out of the U.S. Constitution as they were not recognized as full citizens in 1787 and even today, centuries after it was enacted, the Constitution does not fully prohibit discrimination on the basis of sex. Sex is not held to the same strict standard as race and religion in the eyes of the law, making it harder for women in court to prove complaints of bias or unequal treatment. That is why the Equal Rights Amendment must be added to the Constitution.
What is the ERA?
The ERA is a proposed amendment to the Constitution that would provide a fundamental legal remedy against sex discrimination for both women and men. It would guarantee that the rights affirmed by the U.S. Constitution are held equally by all without regard to their sex. The ERA would clarify the legal status of sex discrimination for the courts, where decisions still deal inconsistently with such claims. The major advantage of a constitutional amendment is that it will require that legal challenges would be subject to an elevated standard of strict scrutiny. Under that standard, a court would have to consider with a sex-based classification satisfies a “compelling state interest” – something that is very hard, if not impossible, to demonstrate. To those who would write, enforce, or adjudicate laws that have an inequitable impact on women – or men – the ERA would send a strong preemptive warning: The Constitution has no tolerance for sex discrimination.
“Equality is not debatable, we are born with it. All we are asking is for it to be recognized.”
– Nevada State Senator Pat Spearman
Why do we need an ERA?
The ERA would guard against any rollbacks of women’s rights by legislation or court cases that are often politically motivated. On recent years, many of the equality gains made by the women’s rights movement have been weakened. It would also promote laws and court decisions that fairly take into account women’s as well as men’s experiences and would help prove sex-based discrimination in court.
Her-story in the making
The first version of an ERA was written by Alice Paul and Crystal Eastman and introduced in Congress in December 1923. Congress eventually passed a revised Equal Rights Amendment in 1972 and sent it to the states for ratification. Unfortunately, a deadline of seven years for ratification by two-thirds of the states (38), to end on March 22, 1979, was included in the preamble of the Resolution proposing the ERA. However, as that deadline approached with only 35 states having ratified the ERA, the National Organization for Women and allies successfully pressed Congress for an extension to June 30, 1982. NOW deployed thousands of activists in the unratified states during those three years, but we were not successful against a well-funded, Right Wing campaign that spread false information about the amendment and pressured state legislators to oppose the ERA.
Once the 1982 deadline passed with only 35 ratified states, NOW activists for the ERA were not deterred. Over the years, NOW members met with legislators in several unratified states and urged re-consideration. Some state legislative bodies did pass ratification measures, but none were ever fully adopted. An effort to revitalize ERA ratification by a ‘three-state strategy’ began to have traction in the 2000s.
Fast-forward to 2017: the Nevada state legislature which had strong representation of women legislators in key positions moved a ratification measure. Under the leadership of state Sen. Pat Spearman (D), both houses of the legislature approved ratification. This action was followed in 2018 in Illinois where NOW activists had been working with the legislature for many years. ERA ratification as all-the-more impressive as Illinois requires a three-fifths vote in each chamber for constitutional amendments.
With victory in sight, NOW and allies forged ahead with a strategic plan in 2019 to elect new members who were ERA supporters to the Virginia General Assembly. The Virginia Senate had already approved of ERA ratification several times in recent years, so activists believed we had an excellent opportunity for success. The election turned the Virginia legislature to Democratic control, so the stage was set. It was truly an exciting — and historic — event when the House of Delegates passed legislation on January 15, 2020 making Virginia the 38th and final state needed to ratify the ERA.
We celebrate these accomplishments as we look forward to the final steps for the Equal Rights Amendment to become part of the U.S. Constitution.
What Happened After the 38th State Ratified?
After the historic vote, Virginia submitted ratifying documents to the National Archives and Records Administration (NARA), which is responsible for finding states’ ratification documents sufficient, so that the Archivist of the United States can proceed with the certification of the ERA. However, in January 2020, the Department of Justice (DOJ), Office of Legal Counsel (OLC), issued an opinion stating that the deadline for the ERA had expired, that the ERA was no longer pending, and that certifying the Amendment would be a violation of the law. The Archivist of the United States, David S. Ferriero, said that he would adhere to this opinion. Some legal analysts assert that the Office of Legal Counsel opinion is not binding on Congress, the courts, or state legislatures, and ultimately will not slow down the momentum toward inclusion of the Equal Rights Amendment in the Constitution.
Prior to these actions, in December 2019, three Attorneys General from the conservative states of Louisiana, Alabama, and South Dakota filed a lawsuit seeking to block ERA ratification. Alabama Attorney General Steve Marshall said that ratification after the 1982 deadline would “sneak it into the Constitution through this illegal proceed would under the very basis of our constitutional order.” Marshall noted that five states had previously rescinded their previous vote to ratify.
In response, the Attorneys General of Nevada, Illinois and Virginia – the three states to have recently ratified the ERA – filed a lawsuit in the U.S. District Court for the District of Columbia on January 30, 2020 against Ferriero, the archivist of the United States. The suit seeks to compel the archivist to carry out his statutory duty of recognizing the complete and final adoption of the Equal Rights Amendment.
In early May 2020, the Trump Administration asked the court to dismiss the case, saying that ratification is not an issue to be decided by the courts.
The conservative states’ lawsuit was withdrawn and the parties, with the addition of Nebraska and Tennessee, intervened in the U.S. District Court for the District of Columbia case. By late Fall, 2020, all motions had been dealt with by the court and all briefs submitted, including several from conservative women’s organization opposing the ERA making absurd claims. Many more briefs from a wide range of women’s rights, civil rights, and prominent constitutional lawyers in support were filed. A motion for Summary Judgement was made and a ruling by the court is expected in early 2021.
NOW is one of 50 women’s rights and civil rights organizations that filed a joint amicus curiae brief urging the certification of the ERA in the U.S. Constitution on July 1, 2020. The Women’s Movement brief recounts the long history of efforts to add the equality amendment to the Constitution.
With the opening of the 117th Congress on January 3, 2021, the opportunity to pass legislation that would remove the 1972 deadline (and its extension) appears to be within reach. The new administration to be headed by former U.S. Vice President Joseph R. Biden and former U.S. Senator Kamala D. Harris – both supporters of the Equal Rights Amendment and control of the House of Representatives and Senate by Democratic leaders who champion the Equal Rights Amendment, our legislative objective is in sight.
During the previous Congress, the democratic-controlled House of Representatives passed on H.J.Res.79, removing the deadline, by a vote of 232-183, on February 13, 2020. While this action is not required for the ERA to be certified, activists promoted it as “backup” insurance against any future challenges. Constitutional experts have noted that Article V, the section pertaining to amending the Constitution, is silent on the matter of ratification deadlines as to whether they have any actual force, especially if not included in the specific amendment language. The ERA deadline appears in the preamble or proposing clause, not the actual language of the Amendment. Since the Constitution offers no guidance, the decision could be made by the courts.
Unfortunately, the Republican-led Senate took no action on the House bill or the companion measure, S.J. Res. 6: A joint resolution removing the deadline for the ratification of the equal rights amendment, sponsored by Maryland Sen. Ben Cardin (D), with Republican Sen. Lisa Murkowski and 32 bipartisan co-sponsors. Both measures will be re-introduced in the current Congress. It is important for all ERA supporters to let members of their Congressional delegation know that we would like them to pass such legislation.
What do we do next?
Ways to take action:
- Call or write your Representative and both Senators to urge that they support removing the ERA deadline. Legislation sponsored by Rep. Jackie Speier (D-Calif.) and Sen. Ben Cardin (D-Md.) will be introduced soon. You can check at congress.gov
- Speak out on social media in support of the ERA using this tool kit.
- Get informed
- NOW’s History With the ERA: Press Statements, Action Alerts, and Blogs
- Additional Resources from our partner organizations:
- Additional Resources from our partner organizations:
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