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July 19th, 2018
The proposed Equal Rights Amendment (“ERA”) provides that the rights guaranteed by the U.S. Constitution apply equally to all persons regardless of their sex. It is very brief:
Section 1. 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 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.
The ERA was introduced in 1923, three years after the 19th Amendment (granting women the right to vote) was ratified. In 1972, the ERA was finally passed by Congress and sent to the states for ratification. The original seven-year time limit was extended by Congress to June 30, 1982, but that deadline passed with only 35 states on board — 38 states were needed for ratification. The ERA has been introduced into every Congress since the deadline.
The ERA has had something of a resuscitation this year. About two months ago, on May 31, 2018, Illinois voted to ratify the ERA, some 36 years after the original deadline for ratification was set by Congress. Some opponents of the amendment said that voting on it now is merely symbolic, noting that the protections that it outlines already apply to women today. Supporters, on the other hand, note that it is more important now than ever for the government to acknowledge clearly that women and men have equal rights under the law, citing the #MeToo movement and its revelations. Indeed, the #MeToo movement has underscored the importance of strong legal protections for women’s rights.
The approval by Illinois sets up the possibility that one of the remaining states may want to move forward as the decisive vote to ratify. To be sure, there is a hurdle, so how would it work? Supporters look to history, including the founding document. Six months after the Constitution went into effect, James Madison offered 17 amendments to the founding document. Congress ultimately approved 12, and by 1791, the states had ratified the first 10, which became the Bill of Rights. One of Madison’s amendments continued to slowly work its way through the states more than 200 years after congressional approval. Finally, in May 1992, Michigan became the 38th state to ratify, making the 27th Amendment the law. It provides that salary increases for members of Congress do not go into effect until the term after they were approved. Supporters of the ERA look to this history and ask, why did the ERA even have a deadline?
There appear to be a couple of ways to revive the ERA completely, should one more state ratify it. A 2013 report of the Congressional Research Service, an office of the legislative branch, in its analysis has concluded that Congress could simply vote to change the old deadline. Or it simply might pass a brand-new amendment, which would most likely, as would a “new” amendment, require the states to ratify the ERA again.
The states that have not ratified the ERA are Alabama, Arizona, Arkansas, Florida, Georgia, Louisiana and Mississippi.
