by on By: Ally Coll & Michelle Kallen
In January 2020, Virginia became the 38th state to ratify the Equal Rights Amendment (ERA). Thirty-eight should have been the magic number: Article V of the United States Constitution, which lays out the process for Constitutional amendments, provides that a proposed amendment becomes part of the Constitution as soon as it is ratified by ¾ of the states. But advancing women’s legal rights in the United States has never followed an easy or straightforward path, and the ERA’s journey has been no exception.
In 1869, Wyoming became the first state to grant women the right to vote–but when Susan B. Anthony tried to invoke that right in the 1872 presidential election, pointing to the newly enacted Fourteenth Amendment’s guarantee of equal protection of the laws to “any person,” she was arrested, convicted, and fined. It took another fifty years before the women’s suffrage movement would achieve its goal of amending the Constitution to grant women the right to vote with the ratification of the Nineteenth Amendment.
Recognizing that securing the right to vote was only an initial step toward full equality under the law, women’s rights activists pushed for the introduction of the ERA a few years later. The original text of the amendment, which was first introduced to Congress in 1923, stated: “Men and women shall have equal rights throughout the United States and in every place subject to its jurisdiction.”
Twenty years later, Alice Paul rewrote the ERA to better reflect the language in the Fifteenth and Nineteenth Amendments. The new version would firmly establish that the “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex,” and provide Congress with the explicit authority to enforce this requirement with appropriate legislation. Lawmakers proceeded to introduce this version of the ERA in every session of Congress for the next thirty years, but it wasn’t formally proposed for ratification by the states until 1972.
That year, the amendment passed both chambers of Congress with bipartisan support far exceeding the two-thirds majorities required by the Constitution. Congress then sent the proposed amendment to the states for ratification, and, as had become standard practice, included a seven-year deadline in the proposing clause. Thirty-five states soon ratified the ERA, but opposition to the proposal brought the ratification process to a halt. Congress extended the deadline to 1982, but instead of securing additional ratifications during that time, five states instead tried to rescind their prior ratifications–an action that had questionable legal effect, but nonetheless sent a clear message: the ERA’s momentum had stalled.
But, in 2017, thirty-five years after the extended deadline expired, and in the midst of the “Me Too” movement, Nevada put the issue back on the table and ratified the ERA. Illinois followed suit the following year, and in 2020, Virginia provided the final ratification necessary to reach the ¾ requirement set forth in Article V. The effort, however, was far from over.
When a constitutional amendment is ratified by the requisite number of states, federal law tasks the United States Archivist (the head of the National Archives) with certifying and publishing the amendment. As it became evident that Virginia was on the cusp of ratifying the ERA, the Trump administration Office of Legal Counsel (OLC) released a legal opinion declaring the ERA expired. According to that opinion, none of the three final states’ ratifications could count towards Article V’s ¾ requirement.
Although the Archivist at the time, David Ferriero, had previously expressed support for the ERA, he refused to certify and publish the ERA, citing the Trump administration OLC opinion. Virginia, Nevada, and Illinois sued. They argued that Ferriero had a ministerial duty to certify and publish the ERA, because the Constitution did not grant the Archivist (or any executive branch official) the power to nullify state ratifications of constitutional amendments. The fact that the ratifications came after the deadline did not invalidate them. The states argued that Congress’s decision to place the deadline outside the text of the amendment–a departure from Congress’s previous practice of placing deadlines in the text of the amendment itself–was pivotal. Furthermore, Article V of the Constitution specifically empowers Congress to do only two things: (1) “propose” amendments, and (2) select one of two “modes” of ratification (state conventions or ratification by state legislatures). It did not empower Congress to place external constraints on how states ratified. Unlike a deadline outside the text, a deadline within the text of an amendment requires ratifying states to also ratify the deadline. Ratification by states after an amendment’s deadline would mean the expired amendment is part of the Constitution, but because of the deadline, the amendment would be inoperative (much like the Eighteenth Amendment). Thus, the states urged, a time limit outside the text of a proposed amendment is non-binding on ratifying states.
A district court judge in DC dismissed the case. The judge reasoned that the three states suffered no legal injury and, therefore, did not have standing to bring the case. The judge reasoned further that the deadline in the ERA’s proposing clause meant that the states could not establish a clear entitlement to relief. When the Biden administration assumed responsibility for the case, it did not change position. In fact, President Biden’s pick for Archivist made clear during her confirmation hearing that she plans to stand by the Trump administration OLC’s opinion unless she is instructed otherwise by a court. Such instruction is unlikely to come any time soon. In February 2023, the DC Circuit affirmed the district court’s dismissal of the case, reasoning that the plaintiff states did not establish the “clear and indisputable” right to relief necessary to succeed on a mandamus claim. It is unclear whether the plaintiff states will appeal this ruling.
Meanwhile, in 2021, the U.S. House of Representatives passed a joint resolution removing the original deadline to the ERA. The bill’s co-sponsor Representative Carolyn Maloney explained, “We introduced this resolution to underscore and affirm that the ERA has been validly ratified as required by the Constitution, and should be recognized as the 28th Amendment to the U.S. Constitution.” Her argument was based on history. Until the turn of the twentieth century, deadlines were not generally used in connection with constitutional amendments. (In fact, the Twenty-Seventh Amendment was ratified more than 200 years after it was proposed.) And when Congress began the practice of affixing deadlines to amendments, it did so in the text of the amendments themselves, not outside the text as it did with the ERA. For the same reasons Virginia, Nevada, and Illinois cited in their earlier lawsuit, the deadline did not kill the ERA.
Bipartisan legislation to remove the ERA’s deadline similar to that in the House was introduced in the Senate in 2021, but never received a vote in the upper chamber. In 2023, new legislation was introduced in the Senate to remove the ERA’s deadline. That legislation remains pending.
While the legal status of the ERA hangs in the balance, the importance of enshrining an express prohibition on sex discrimination in the Constitution has never been more obvious. This summer, the Supreme Court reversed its long-standing precedent finding a Constitutional right to abortion under the Fourteenth Amendment, removing a fundamental right that has disproportionately benefited women for the past fifty years. Five years after Tarana Burke’s longstanding #MeToo movement went viral, existing laws still fail to adequately protect employees from sexual harassment and other forms of sex-based discrimination at work.
The ERA could also provide a new legal mechanism for challenging the swath of anti-LGBTQ bills that state legislatures have introduced over the past several years. In light of the Supreme Court’s 2020 decision in Bostock v. Clayton County, these measures, which range from anti-trans policies to religious exemption bills, could face heightened scrutiny if the ERA became law. In a textualist opinion authored by Justice Neil Gorsuch, the Court in Bostock concluded that, in the context of the Civil Rights Act of 1964, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
This year marks 100 years since the ERA was first introduced, and the need to codify an explicit commitment to sex equality into our nation’s founding document has never been more urgent. Without the ERA, the U.S. Constitution is the only major constitution with a bill of rights but with no express recognition of equality on the basis of sex. Now that the Supreme Court has undermined its longstanding precedent protecting reproductive and LGBTQ+ rights under the Fourteenth Amendment, it’s clear that enacting the ERA is the only way to ensure that people of all genders are guaranteed equal protection of the laws under the U.S. Constitution in the decades to come.
Ally Coll is an Assistant Professor of Legal Studies at George Mason University, and Co-Founder of the Purple Campaign, a non-profit organization she launched in 2018 to address workplace harassment in the wake of the #MeToo movement.
Michelle Kallen is a partner in Jenner & Block’s Supreme Court and Appellate Practice. She is the former Solicitor General of Virginia, where she served as lead counsel on behalf of the Commonwealth to certify and publish the Equal Rights Amendment to the U.S. Constitution.