For more than a half century winning a constitutional guarantee of equality for women has been a top priority for the National Organization for Women (NOW). Over the years, our grassroots activists have mounted countless actions on many fronts to protect and achieve the equal rights of women and girls in all aspects of social, political and economic life.
Early on, NOW recognized that a constitutional amendment was needed to protect our hard-won gains for equality and to provide a fundamental protection against sex-based discrimination. The Equal Rights Amendment (ERA) was passed by Congress in 1972 and sent to the states for ratification, it is now one state short of the required three-quarters before becoming part of the U.S. Constitution.
NOW activists have worked diligently for the ERA and we are now poised to see the 38th state, Virginia, ratify. Activists in other states, like North Carolina, Arizona and elsewhere, are working to pass ERA ratification measures as well.
History in the Making
What Happens After the 38th State Ratifies?
Once the final vote is taken in the Virginia General Assembly, the ratifying documents are to be sent to the National Archives and Records Administration. A federal statute, 1 U.S.C. 106b, sets out the procedure, “…according to the provisions of the Constitution, the Archivist of the United States shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States.
Once Fully Ratified, the ERA is Part of Constitution
In October 2012 longtime ERA advocate, Rep. Carolyn Maloney (D-N.Y.), asked for legal verification of statements on the NARA website from the Archivist of the United States, David S. Ferriero, who responded in writing that NARA’s website includes the following information:
“The Constitutional Amendment Process states that a proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the states, indicating that Congressional action is not needed to certify that the Amendment has been added to the Constitution. It also states that my certification of the legal sufficiency of ratification documents is final and conclusive, and that a later rescission of a state’s ratification is not accepted as valid.”
In January 2020, the Department of Justice, Office of Legal Counsel, issued an opinion stating that the deadline for the ERA had expired and that the ERA was no longer pending. The National Archives and Records Administration said that it would adhere to this opinion. However, NOW believes that the OLC opinion is another purely political maneuver from a Justice Department that is riven by partisan politics. It is not binding on Congress, the courts or state legislatures, and it will not slow down the momentum toward final ratification of the ERA.
What About States Who Tried to Rescind their Ratification?
The Archivist’s letter confirms that rescissions by the five states (Idaho, Kentucky, Nebraska, Tennessee, South Dakota) are not recognized under the Constitution’s Article V, which governs the amendment process. It appears that Article V and related statutes do not take into account any deadline imposed by Congress on a proposed constitutional amendment.
Once fully ratified followed by the Archivist’s certification of legal sufficiency of the ratification documents, an amendment is added to the U.S. Constitution. Following the addition of the ERA as an amendment to the U.S. Constitution, Congress may promulgate, that is, make it generally known by announcement of the new amendment, but that is not necessary.
ERA Deadline Uncertainty
Because of the ERA”s unusual history of having failed to meet a ratification deadline, questions will be raised about the ratified amendment’s legality. This may happen despite the Archivist’s letter confirming the process and the plain language of 1 U.S.C. 106b. Some legal analysts have asserted that Article V of the Constitution does not permit the imposition of deadlines on the ratification process, but this question has not been settled. The answer to may be more of a political one rather than one of law.
In November 2019, the U.S. House Committee on the Judiciary held a mark-up on H.J.Res.79, to remove a ratification deadline of seven years from the 1972 ERA and the measure was favorably reported of committee. We are waiting for a full House vote and since the legislation has 224 co-sponsors, passage is assured.
While this deadline removal is not required, supporters are pushing it as “backup” insurance. Action is needed in the Senate as well for 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), and 33 bipartisan co-sponsors, this bill will need both Republican and Democratic supporters to pass the Republican-controlled Senate.
ERA supporters can contact their Senators and urge them to co-sponsor S.J.Res 6.
How will the ERA help women?
Pay Inequity – the ERA could help further pay equity legislation (which has been stalled in Congress for more that 20 years) and provide a more effective tool for litigation on sex-based employment discrimination. It may even spur adoption of stronger equal pay (substantially similar jobs) laws at federal and state levels.
Pregnancy Discrimination – The Pregnancy Discrimination Act (PDA) is an amendment to Title VII of the Civil Rights Act of 1964. Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII. Pregnant Women are still being laid off or fired by employers when any restriction on their ability to carry out their duties is prescribed. An ERA would underline the notion that both women and men should have the ability to work and have children simultaneously and that reasonable accommodation must be made by employers.
Domestic Violence, Rape and Sexual Assault – The ERA would ensure that police departments are required to protect women from domestic violence and would be pushed to consistently enforce restraining orders. Further, the ERA could provide a constitutional basis for claims of gender-based violence, perhaps permitting a private right of action to sue abusers to obtain compensation for injuries. Women are the overwhelming majority those are injured by gender-based violence and currently lack a solid constitutional basis on which to bring such a claim.
Discrimination in Insurance – The ERA would require state insurance regulators to end sex-based discriminatory practices by private insurance companies against their women customers. Most affected would be auto insurance and annuities – types of policies that have long charged women more than men for the same coverage.
Military Policy – The ERA would compel the military to comply with the law and structure its policies, procedures, and protocols to meet the needs of enlisted women in providing career advancement, pay, retirement compensation, training, and providing medical services particular to women’s physiology. It may also help improve military procedures to address sexual assault – a severe and continuing problem for women.
Broad Impact of an ERA – NOW believes that the ERA will help advance the rights of all women, including women of color and LGBTQIA+ persons, and it will have the power to more effectively seek redress for women’s economic marginalization. The ERA will provide a defense against efforts to roll back previous achievements for women’s rights. The Equal Rights Amendment will serve as a foundational principle for equal opportunity and equal treatment for men and women in all spheres of life.
Equal Means Equal – Why the Time for an Equal Rights Amendment is NOW, by Jessica Neuwirth (The New Press., 2015)
- NOW and the ERA – Summary of NOW Actions in Support of the ERA, 1966 – 2018
- Alice Paul Institute’s: ERA Frequently Asked Questions
- ERA Coalition
- Ratification Map
- What Happens After the 38th State