The Twenty-Eighth Amendment?: The Equal Rights Amendment’s Popular Resurgence
The only way to tell photographs of Equal Rights Amendment (ERA) advocates from the 1970s apart from the advocates of the 2010s is by the quality of the photo. Recently, women have taken to the streets, the legislatures, and the courts, coming together to change the Constitution. Their advocacy has paid off. This year, the Virginia legislature became the thirty-eighth state of the thirty-eight states necessary to ratify the ERA. Unfortunately, the ratification may be almost forty years too late. The 1982 deadline for state ratification has long passed. Why has the amendment recently resurged in popularity, and what will happen next?
The History of the ERA
The Equal Rights Amendment (ERA) was first introduced in 1923 in Seneca Falls, New York, the birthplace of the women’s suffrage movement. There, celebrating the seventy-fifth anniversary of the 1848 Women’s Rights Convention, Alice Paul introduced the original ERA. The original amendment stated, “Men and women shall have equal rights throughout the United States and every place in its jurisdiction.” The amendment was introduced to Congress the year it was first proposed, but due to resistance from the labor movement, which called for protective laws treating women differently from men, the amendment ultimately failed. This tension of equal treatment of men and women and disparate treatment of women given their uniquely feminine characteristics has undergirded the fight for the ERA and underlie arguments for and against its ratification.
In 1943, Alice Paul rewrote the proposed amendment to state, “Equality of rights under the law shall not be abridged or denied by the United States or by any state on account of sex.” This newly revised amendment did not gain further political traction until the 1960s, when the Civil Rights Movement provided new motivation for the second wave of the Women’s Rights Movement. At this point in time, the labor movement subscribed to the proposed amendment’s cause and the ERA thereafter received widespread support. With such popularity, the proposed Amendment was expediently passed by Congress and was on its way to be ratified by the states.
According to Article V of the United States Constitution, a proposed amendment may originate in Congress or the States, though thus far, all amendments to the Constitution have originated in Congress. There is a three-step process that proposed amendments must go through in order to be ratified. First, two-thirds of Congress must approve the proposed amendment. Second, Congress sends it to the states for approval. Alternatively, Congress may call a convention for proposing amendments if two-thirds of state legislatures request this process. This process has not been used throughout all of Constitutional history. The final step in this process, regardless of whether the amendment was proposed by Congress or state convention, calls for legislatures or conventions of three-fourths of states to ratify the proposed amendment. When states vote to ratify the proposed amendment, they cannot change the language of the potential amendment. Congress may set a time limit for state action. Only when the proposed amendment passes through these several steps does it become valid.
When the ERA was sent from Congress to the states for ratification, it was expected that at least three-fourths of the states would ratify it. At first, this seemed to be the case, as within the first year of the proposed amendment’s release to the states, twenty-two of the necessary thirty-eight states ratified it. However, as opposition to the amendment grew, the pace of state ratification slowed and eventually came to a halt. Congress placed a seven-year deadline on the ratification process. The proposed amendment failed to gain the necessary state support within this ultimatum period. This is largely due to the efforts by conservative groups led by spitfires like Phyllis Schlafly, who warned that the ERA would destroy the traditional family and eliminate laws that protected women, resulting in an end to sexual assault and alimony laws—leaving women to fend for themselves. Additionally, states’ rights advocates warned that the amendment was a federal power-grab, giving power to Congress and reducing state control over creating gender-based law. Business groups also worried that the amendment would cost them money, as it would create an increase in women’s insurance rates.
In the face of this backlash, support for the ERA petered out. The amendment peaked with thirty-five state ratifications, but several states would later rescinded their ratifications. As the 1979 deadline approached, ERA advocates created enough political pressure to convince Congress to extend the ratification deadline to 1982. Unfortunately, the anti-ERA coalition retained a stranglehold on the national ideology, and the requisite number of states did not ratify the amendment before the new deadline. Despite this loss, the Equal Rights Amendment was reintroduced in Congress the month following the failed deadline and has been introduced in every session of Congress since.
The Return of the ERA
After a long period in general dormancy, the debate for the ERA has been reinvigorated through the increase in voices calling for equal pay and an end to sexual harassment and abuse, leading to the ratification of the amendment by several states. In 2017, Nevada became the thirty-sixth state to ratify the ERA. In 2018, Illinois followed, becoming the thirty-seventh state to ratify the amendment. Now, with Virginia’s recent ratification, the ERA has the required number of state ratifications to become a valid amendment. What led to this recent surge in support for the ERA, and, almost forty years after its initial deadline for passage into law, can the amendment still become part of the Constitution?
Many attribute the ERA’s resurgence in popularity to social movements like #MeToo, as more women vocalize their experiences with sexual assault and sex discrimination. This has led to celebrity endorsements and overall political change. For example, before the 2016 election, actress Meryl Streep sent letters to every member of Congress, urging them to revive the Equal Rights Amendment. In addition to celebrity backing, the public has gotten increasingly involved in advocating for its passage. Groups such as the National Organization for Women (NOW) have pushed for its ratification. NOW focused efforts to ratify the Equal Rights Amendment in several states, achieving success in Nevada, Illinois, and now Virginia. Additionally, the 2018 election ushered in a period of Democratic majorities in state legislatures. Democrats, who are more sympathetic to the cause of the ERA, have largely backed the proposed amendment. For example, the ERA’s victory in Nevada was principally spearheaded by Democratic state senator Pat Spearman—pun not intended. The shift in political power in the states has contributed to the ratification of the ERA in these places.
The ERA’s newfound popularity has reignited debate over the scope and effect of the amendment. Some opponents to the amendment argue that gender equality is already written into the Constitution. In fact, a poll conducted by the ERA Coalition/Women’s Equality Fund found eighty-percent of Americans believe that the Constitution already guarantees equal rights to men and women. In actuality, the closest the Constitution comes to this is the Fourteenth Amendment, though even hyper-conservative former Supreme Court Justice Antonin Scalia recognized that the Constitution does not prohibit sex discrimination. In a comment before the Senate Judiciary Committee, Scalia qualified his analysis, stating that while the Fourteenth Amendment does prohibit some sex discrimination, it does not target private discrimination, and this narrower view is largely reflected in Supreme Court jurisprudence. Thus, while the Constitution contains some protections for women from discrimination, it does not fully guarantee equality under the law.
The Equal Rights Amendment fills this Constitutional gap. Its proponents argue that it would be a formal recognition that every American has a right to be free from sex-based discrimination. They argue that an amendment will be stronger than the current anti-discrimination legislation on the books, including Title VII of the Civil Rights Act of 1964 (covering workplace discrimination based on race, color, religion, sex, and national origin) and Title IX of the Education Amendments of 1972 (covering sex-based discrimination in educational settings), because constitutional amendments are difficult to ratify and remove. Statutory law can be altered more easily as the will of the legislature changes. Further, legal scholars worry that the Fourteenth Amendment’s protections are not very strong against gender discrimination in general, as constitutional originalists (those who interpret the constitution based on the meaning it had when it was first enacted) can argue that the Fourteenth Amendment was only written to prevent racial discrimination. The ERA would provide more solid footing for protecting gender-based rights specifically. Additionally, scholars argue that textualists may read the ERA as providing more rights for transgender or gender nonconforming people, as the proposed amendment explicitly refers to equality based on “sex.”
The second substantive argument surrounding the ERA is one of equality: what do sex and gender equality mean, and should we enshrine this view in the Constitution? To opponents of the ERA, the equality it promises is “enforced sameness.” Rather than enabling women, opponents claim that the ERA will restrict their choices, functionally forcing them into undesirable situations. For example, opponents say the ERA could eliminate women-only prisons and force women to sign up for the draft. This argument frames the distinctions between men and women as important, and the separation of the sexes as necessary in certain instances.
On the other hand, proponents of the ERA argue that the amendment would bring substantive change in the areas where women still lack the quality of life men enjoy and vice versa. For example, supporters say the ERA would eliminate workplace discrimination, ensuring this beyond the statutory grounds provided in laws like Title VII, give fathers greater access to paid paternity leave, require states to intervene in domestic violence cases and guard against pregnancy and motherhood discrimination. These arguments frame equality opposingly, mirroring the arguments that took place surrounding the original ERA and throughout its history.
One procedural argument against the passage of the Equal Rights Amendment is that it comes too late—the deadline has long passed. This view is supported by the Department of Justice (DOJ) in its recent opinion on the ratification of the Equal Rights Amendment. In its nonbinding opinion, the DOJ states that the ratification is tardy and that the process must recommence for the amendment to be ratified. The National Archives and Records Administration (NARA), the American recordkeeper in charge of tracking state participation in amendment ratification, said it would adhere to the Department of Justice’s opinion. In so doing, the NARA implies that it upholds the DOJ position that the state ratifications before the 1982 deadline were valid and that any state rescissions of their ratifications were invalid. This mentality aligns with the government’s position in previous amendments, as was the case with the fourteenth and fifteenth amendments. ERA supporters criticize the DOJ’s position as purely politically motivated. Supporters look to the history of amendment ratification to argue that the majority of constitutional amendments did not have ratification deadlines, including the Twenty-Seventh Amendment, which passed over 200 years after it was first proposed. Thus, they argue, like with other amendments, the written ERA deadline should be irrelevant. In late 2019, the U.S. House on the Judiciary held a markup on a House Resolution to remove the ratification deadline, which will be voted upon by the full House of Representatives soon.
The question of whether the deadline will be rescinded or enforced remains mostly unanswered, though legislative and judicial responses are anticipated in the near future. In fact, several complaints have already been filed in federal district courts against the National Archivist regarding whether the amendment should be certified and added to the Constitution. The legislature and judiciary will continue to work to resolve these tensions—a process that can potentially take years to resolve. Though nothing about the future of the ERA is certain, its recent state ratification reignites the debate surrounding gender equality in the United States through the lens of the Constitution. The resolution of the tensions surrounding the potential amendment will determine where the United States stands on the meaning of gender equality and its importance in the law.
Christina Lee is a second-year at Cornell Law School. Born and raised in Upstate New York, Christina attended Cornell University as an undergraduate and is enjoying her sixth straight year in Ithaca. Christina is involved with the Gender Justice Clinic at Cornell Law and is a passionate advocate for women’s rights.
Suggested Citation: Christina Lee, The Twenty-Eighth Amendment?: The Equal Rights Amendment’s Popular Resurgence, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (Apr. 3, 2020), https://live-journal-of-law-and-public-policy.pantheonsite.io/the-twenty-eighth-amendment-the-equal-rights-amendment’s-popular-resurgence.