{"id":3574,"date":"2023-03-30T22:54:53","date_gmt":"2023-03-30T22:54:53","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/lpr\/?p=3574"},"modified":"2025-04-01T19:16:05","modified_gmt":"2025-04-01T19:16:05","slug":"the-equal-rights-amendment-making-our-union-more-perfect","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2023\/03\/30\/the-equal-rights-amendment-making-our-union-more-perfect\/","title":{"rendered":"The Equal Rights Amendment: Making Our Union More Perfect"},"content":{"rendered":"

By: Ally Coll & Michelle Kallen\u00a0<\/strong><\/em><\/p>\n

 <\/p>\n

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 \u00be of the states. But advancing women\u2019s legal rights in the United States has never followed an easy or straightforward path, and the ERA\u2019s journey has been no exception.<\/span><\/p>\n

In 1869, Wyoming became the first state to grant women the right to vote\u2013but when Susan B. Anthony tried to invoke that right in the 1872 presidential election, pointing to the newly enacted Fourteenth Amendment\u2019s guarantee of equal protection of the laws to \u201cany person,\u201d she was arrested, convicted, and fined. It took another fifty years before the women\u2019s suffrage movement would achieve its goal of amending the Constitution to grant women the right to vote with the ratification of the Nineteenth Amendment.\u00a0<\/span><\/p>\n

Recognizing that securing the right to vote was only an initial step toward full equality under the law, women\u2019s 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: \u201cMen and women shall have equal rights throughout the United States and in every place subject to its jurisdiction.\u201d\u00a0<\/span><\/p>\n

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 \u201cEquality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex,\u201d 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\u2019t formally proposed for ratification by the states until 1972.\u00a0<\/span><\/p>\n

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 <\/span>rescind <\/span><\/i>their prior ratifications\u2013an action that had questionable legal effect, but nonetheless sent a clear message: the ERA\u2019s momentum had stalled.<\/span><\/p>\n

But, in 2017, thirty-five years after the extended deadline expired, and in the midst of the \u201cMe Too\u201d 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 \u00be requirement set forth in Article V.\u00a0 The effort, however, was far from over.<\/span><\/p>\n

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.\u00a0 As it became evident that Virginia was on the cusp of ratifying the ERA, the Trump administration Office of Legal Counsel (OLC) <\/span>released a legal opinion<\/span><\/a> declaring the ERA expired.\u00a0 According to that opinion, none of the three final states\u2019 ratifications could count towards Article V\u2019s \u00be requirement.<\/span><\/p>\n

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.\u00a0 Virginia, Nevada, and Illinois sued.\u00a0 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.\u00a0 The fact that the ratifications came after the deadline did not invalidate them. The states argued that Congress\u2019s decision to place the deadline outside the text of the amendment\u2013a departure from Congress\u2019s previous practice of placing deadlines in the text of the amendment itself\u2013was pivotal.\u00a0 Furthermore,\u00a0 Article V of the Constitution specifically empowers Congress to do only two things: (1) \u201cpropose\u201d amendments, and (2) select one of two \u201cmodes\u201d of ratification (state conventions or ratification by state legislatures).\u00a0 It\u00a0 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.\u00a0 Ratification by states after an amendment\u2019s 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).\u00a0 Thus, the states urged, a time limit outside the text of a proposed amendment is non-binding on ratifying states.<\/span><\/p>\n

A district court judge in DC <\/span>dismissed the case<\/span><\/a>.\u00a0 The judge reasoned that the three states suffered no legal injury and, therefore, did not have standing to bring the case.\u00a0 The judge reasoned further that the deadline in the ERA\u2019s proposing clause meant that the states could not establish a clear entitlement to relief.\u00a0 When the Biden administration assumed responsibility for the case, it did not change position.\u00a0 In fact, President Biden\u2019s pick for Archivist <\/span>made clear during her confirmation hearing<\/span><\/a> that she plans to stand by the Trump administration OLC\u2019s 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\u2019s dismissal of the case, reasoning that the plaintiff states did not establish the \u201cclear and indisputable\u201d right to relief necessary to succeed on a mandamus claim.\u00a0 It is unclear whether the plaintiff states will appeal this ruling.<\/span><\/p>\n

Meanwhile, in 2021, the U.S. House of Representatives passed a joint resolution removing the original deadline to the ERA.\u00a0 The bill\u2019s co-sponsor Representative Carolyn Maloney explained, \u201cWe 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.\u201d\u00a0 Her argument was based on history. Until the turn of the twentieth century, deadlines were not generally used in connection with constitutional amendments.\u00a0 (In fact, the Twenty-Seventh Amendment was ratified more than 200 years after it was proposed.)\u00a0 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.\u00a0 For the same reasons Virginia, Nevada, and Illinois cited in their earlier lawsuit, the deadline did not kill the ERA.<\/span><\/p>\n

Bipartisan legislation to remove the ERA\u2019s deadline similar to that in the House was introduced in the Senate in 2021, but never received a vote in the upper chamber.\u00a0 In 2023, new legislation was introduced in the Senate to remove the ERA\u2019s deadline.\u00a0 That legislation remains pending.<\/span><\/p>\n

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\u2019s longstanding #MeToo movement went viral, existing laws <\/span>still fail to adequately protect employees<\/span><\/a> from sexual harassment and other forms of sex-based discrimination at work.<\/span><\/p>\n

The ERA could also provide a new legal mechanism for challenging the <\/span>swath of anti-LGBTQ bills<\/span><\/a> that state legislatures have introduced over the past several years. In light of the Supreme Court\u2019s <\/span>2020 decision<\/span><\/a> in <\/span>Bostock v. Clayton County<\/span><\/i>, 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 <\/span>Bostock<\/span><\/i> concluded that, in the context of the Civil Rights Act of 1964, \u201cit is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.\u201d<\/span><\/p>\n

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\u2019s 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\u2019s 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.\u00a0<\/span><\/p>\n

 <\/p>\n

Ally Coll is an Assistant Professor of Legal Studies at George Mason University, and Co-Founder of the <\/span><\/i>Purple Campaign<\/span><\/i><\/a>, a non-profit organization she launched in 2018 to address workplace harassment in the wake of the #MeToo movement.<\/span><\/i><\/p>\n

Michelle Kallen is a partner in Jenner & Block\u2019s Supreme Court and Appellate Practice.\u00a0 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.<\/span><\/i><\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

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