Half a century ago the proposed Equal Rights Amendment to the Constitution seemed like a good idea. Such a good idea, in fact, that it was adopted by an overwhelming vote of 354-24 in the US House of Representatives and by an equally lopsided 84-8 in the Senate five months later. Those votes easily surmounted the Constitution’s requirement that an amendment win two-thirds support in each house of Congress, so on March 22, 1972 — 48 years ago this Sunday — the ERA was submitted to the state legislatures for ratification. If three-fourths (38) of the states approved the amendment within the specified seven-year deadline, the ERA would be added to the Constitution.
At first, seven years appeared to be far more time than the amendment needed. Within two weeks, 10 states had ratified the ERA; within two years, 33 states had signed on. But by then, enthusiasm for the amendment had waned. A 34th state, North Dakota, said yes to the ERA in 1975. A 35th state, Indiana, did so in 1977. No other states ratified the amendment — and four states rescinded their ratifications — before the clock ran out in 1979.
The ERA was dead. Yet some of its ardent proponents insisted that, like Monty Python’s parrot, it was merely resting.
In 1978, Congress passed a resolution extending the deadline by three years, to 1982. To no avail — no additional state came aboard. It was doubtful that Congress had any authority to tamper with the deadline, but since the bottom line hadn’t changed, the Supreme Court ruled the issue moot.
This time, the ERA was really dead. Still, some advocates refused to concede the obvious. They have claimed for decades that the amendment window never closed, that the 35 state ratifications remain valid, that the states that rescinded their previous ratifications had no authority to do so, and that the ERA would become part of the Constitution whenever three more state legislatures voted to ratify it.
Now three state legislatures have done so: Nevada in 2017, Illinois in 2018, and — a mere 41 years after the ratification period expired — Virginia in 2020. The three states’ attorneys general demanded that the director of the National Archives certify the adoption of the Equal Rights Amendment. When he declined to do so, they filed a federal lawsuit. Attorneys general from three other states have filed a competing lawsuit, arguing that any such way-past-the-deadline ratification process is fatally flawed and unconstitutional. For good measure, the House of Representatives got into the act last month, voting along near-party lines to remove the ratification deadline Congress set when it originally approved the amendment.
If this strikes you as a crazy way to run a railroad, you’re in good company.
No less a feminist icon — and ERA champion — than Supreme Court Justice Ruth Bader Ginsburg says the only way to get the amendment into the Constitution now is to “start over.” During a recent appearance at a Georgetown Law School event commemorating the centennial of women’s suffrage, Ginsburg was emphatic: She would very much like to see the amendment added to the Constitution, if only for symbolic reasons. But expired deadlines are expired deadlines. “I would like to see a new beginning,” RBG told her audience. She dismissed the notion that after-the-fact ratifications count but pre-deadline rescissions are meaningless. “If you count a latecomer on the plus side,” she asked, “how can you disregard states that said, ‘We’ve changed our minds?’”
Would anything be gained at this late date by adding the broad language of the Equal Rights Amendment — “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex” — to the Constitution? Legal scholar Jennifer Braceras, who served on the US Commission on Civil Rights and is an expert on Title IX (the civil rights law banning discrimination based on sex in the educational realm), argues in a new essay in Commonwealth not just that the ERA is defunct as a matter of process but that it ought to remain so as a matter of policy.
When Congress passed the ERA, Braceras writes, there was a strong case to be made for it: “In 1972, sexual harassment was not considered to be a form of illegal discrimination; Title IX had not yet elevated women’s athletics to the position of prominence they occupy today; and the Supreme Court had not yet clarified that the Equal Protection Clause of the Fourteenth Amendment protects women from unfair sex discrimination.” All that has changed. “Today, American women and men are truly equal under the Constitution, as well as under state and federal statutes.”
Justice Ginsburg herself made much the same point as far back as 1997: “There is no practical difference between what has evolved and the ERA,” she said. Why would she like to incorporate it into the Constitution at this point? As a sentimental gesture: “I would still like it as a symbol to see the ERA in the Constitution for my granddaughter.”
Reasonable people can debate whether the Constitution is the place for feel-good symbols, or whether a constitutionalized ERA might lead to unintended, unwelcome consequences. But the time to have that debate is when the Equal Rights Amendment is in play. It isn’t. Its most ardent backers ought to stop pretending otherwise, roll up their sleeves, and start again from the beginning.
Jeff Jacoby can be reached at email@example.com. Follow him on Twitter @jeff_jacoby. To subscribe to Arguable, his weekly newsletter, go to bitly.com/Arguable.
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