US Court Skirmishes Over Deadline’s Validity Leave ERA in Limbo

(Editor’s note: This is the first article in a series on the fight to add the ERA to the U.S. Constitution. See the second piece by Professor Julie Suk of CUNY Graduate Center and Yale Law School here.)

One hundred years ago, with the ratification of the 19th Amendment, women in the United States first won the right to vote. It was a long journey to that achievement, but the activists didn’t rest on their laurels. They immediately began pressing for even further amendment to our Constitution — the Equal Rights Amendment (ERA), which in its current form provides that “[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” That, too, has been a long road to ratification. After a renewed surge of interest in the 1970’s spurred progress, a counter-movement seemed to stop the project in its tracks. Many had left it for dead, assuming that its time had long since passed or become irrelevant. Now, 80 percent of Americans mistakenly believe the U.S. Constitution explicitly guarantees equal rights for men and women.

Yet, thanks to the recent work of advocates and activists, the ERA is closer to making that a reality, with adoption nearer than ever before, even though legal obstacles remain. While advocates have recently achieved an important milestone by securing ratification in 38 states (the threshold required by Article V of the Constitution), conservatives claim that a deadline imposed by Congress has long since passed. They point to the five states that have attempted to rescind their ratification as further proof of a project left incomplete. The U.S. Archivist, the nation’s record keeper, has refused to certify the amendment based on a legal opinion from the Department of Justice’s Office of Legal Counsel. These disputes have created uncertainty for many about the current status of the ERA and the legal obstacles that it faces.

Nearly 50 Years in the Making

The ERA was first introduced by Alice Paul in 1923. She sought to build upon the success of the recently concluded suffragist campaigns to further amend the Constitution and expand constitutional protections for women. She noted, “[w]e shall not be safe until the principle of equal rights is written into the framework of our government.”

Congress would first take up Paul’s amendment that same year and introduced a version of the bill in every subsequent session. But it would be 50 years before it passed the ERA and sent the amendment to the states for ratification. Feminist organizers had stoked renewed interest during the second wave of feminism in America and were able to translate that momentum into congressional action. Representative Shirley Chisolm and others were able to, in her words, “act to assure full equality of opportunity to those citizens who, although in a majority, suffer the restrictions that are commonly imposed on minorities, to women” and secure passage in both the House and the Senate.

Once the ERA finally made it out of the 92nd Congress and was sent to the states for ratification, it came with a catch.  Lawmakers had imposed a seven-year deadline for states to ratify, later extended by three years. Avid television watchers and political historians will know that the conservative activist Phyllis Schlafly was successful in capitalizing on the culture wars of the late 70’s and early 80’s to cut the ratification path short. Only 35 of the required 38 states ratified the ERA before 1982.

With the deadline passed, the amendment was left on the shelf for decades until a recent renewed campaign to push three final states to ratify. State Senator Pat Spearman led successful efforts in Nevada that led to the Silver State’s ratification in 2017, followed by Illinois in 2018. Finally, on Jan. 27, 2020, Virginia made history and became the 38th state to ratify the ERA, satisfying the final requirement for amending our Constitution found in Article V.

The Path Ahead

Before the 2020 Virginia General Assembly had even been sworn in and the final vote could be cast, legal challenges to this renewed ERA effort were already underway. In December 2019, with newly-elected Virginia legislators signaling their intent to ratify, the Attorneys General of Alabama, Louisiana, and South Dakota brought a preemptive suit in the District Court of Alabama, claiming that not only did the ERA fail to be ratified by the required 38 states before the congressionally set deadline, only 30 states had actually properly done so as “[f]ifteen States had not ratified it, and five States had ratified but rescinded their ratifications.” Three weeks before Virginia took its final vote, the Department of Justice issued legal guidance, concluding “that Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the States.”

The next day, Equal Means Equal filed suit in the U.S. District Court of Massachusetts, seeking to compel the Archivist of the United States to record Virginia’s ratification and recognize the ERA as the 28th Amendment. Following Virginia’s ratification, the Attorneys General of Virginia, Illinois, and Nevada (states that had ratified the ERA after the extended congressional deadline expired) also brought suit against the Archivist in the U.S. District Court of the District of Columbia, claiming that “Article V does not empower Congress to dictate when a State may consider—much less ultimately ratify—a proposed amendment.” This case eventually subsumed the Alabama case, with the Attorneys General of Alabama, Louisiana, and South Dakota joining as intervenors and dropping their separate action.

The plaintiffs in the Massachusetts case similarly argue that the deadline for ratification imposed by Congress, and subsequently extended by a simple majority vote, is an extra-textual provision, is untethered to the amendment itself, and is a “constitutional nullity.” Their case was dismissed by U.S. District Court Judge Denise Casper for a lack of standing on Aug. 6. Equal Means Equal said it will appeal the decision.

Others have urged Congress to answer the question themselves and remove the deadline, noting that ”doing so would eliminate the argument that the validity of the Equal Rights Amendment depends on something other than Article V of the Constitution.” In February, the House of Representatives voted to remove the deadline imposed by the 95th Congress, but the bill has now stalled in the Senate despite bipartisan support.

Article V and the Amendment Process

From its inception, our Constitution has been a work in progress, with an explicit process for amendment built into the original text itself. Amending our governing document is lawmaking at its most fundamental. Famously, James Madison and his fellow anti-federalists insisted that the Constitution be amended very shortly after ratification to “fortify the rights of the people against the encroachments of the government.” Since the adoption of what we now know as the Bill of Rights, there have only been 17 further amendments to the Constitution. It is generally acknowledged that the U.S. Constitution is the hardest Constitution to amend in the world: the rules involved and the number of ratifying states required make the process extremely difficult. The 27th Amendment, on congressional compensation, is our most recent addition to the Constitution, and it was ratified in 1992, over 200 years after it was first proposed by James Madison.

So why did the 27th Amendment not face similar legal challenges?  To understand how the dispute over the ERA has arisen, we must first look to the text of the Constitution itself. Article V lays out the process by which the Constitution may be amended: “The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress.”

The ERA was proposed and deemed necessary by two thirds of the 92nd Congress and sent to the states for ratification.  The text of the House Joint Resolution stated that the Amendment would be considered “valid to all intents and purposes as part of the Constitution when ratified by three-fourths of the several States within seven years from the date of its submission by the Congress.”  It is important to note that Article V itself does not specify a timeframe for ratification. By the letter of Article V, the only requirements to be met are two-thirds passage by both the House and Senate followed by ratification by three fourths of the states.

The deadline at issue here was imposed by congressional action, and whether they have the right to do so remains an unresolved question. Congress similarly imposed a deadline on the states when it sent the 18th Amendment (to prohibit the manufacture, sale, and transportation of alcohol) to the states for ratification, and that deadline also prompted legal challenges. In 1921, the U.S. Supreme Court upheld the deadline, but some have argued that there are reasons to question the applicability of this holding to the ERA.

Why Now?

There is real debate and disagreement among interested parties on whether Congress can legally impose a deadline on the states for ratification, whether they can extend or rescind such a deadline, and whether these questions are best left to Congress or the courts for resolution. However, it should be obvious to even a casual observer why the need for greater constitutional protections for women and nonbinary Americans remains relevant today (The ERA prohibits discrimination on the basis of sex, and the Supreme Court recently confirmed that discrimination based on gender identity is considered discrimination based on sex.)

The legal tools available to address discrimination on the basis of sex – the persistent wage gap, sexual harassment on campus, failure to adequately address sexual abuse and domestic violence, a right to reproductive health care that is a right in name only for many — remain inadequate. For now, the Equal Rights Amendment, ratified by 38 states, remains in limbo as the federal courts and Congress debate these questions on where to go from here.

IMAGE: National Women’s Party leaders watch as Alice Paul sews a “ratification star” on a flag. From left to right: Mabel Vernon, Elizabeth Kolb, Alice Paul, Florence Brewer Boeckel, Anita Politzer, Sue Shelton White, and Vivian Pearce. (Photo: Library of Congress via Wikimedia Commons)

 

About the Author(s)

Russ Feingold

President of the American Constitution Society. Follow him on Twitter (@russfeingold).