Three-Fourths of the States Ratified the ERA. 80 Percent of Americans Support It. So Why Isn’t It Part of Our Constitution?

The tangled legal limbo of the Equal Rights Amendment

Photo Credit: Tom Williams, CQ-Roll Call, Inc. via Getty Images

Yesterday, the House voted along mostly party lines (with four GOP members joining the Democrats) to extend the deadline for ratification of the Equal Rights Amendment. The ERA states, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” It then gives Congress the power to enforce it by appropriate legislation.

This ERA extension vote comes over a year after a victory for the ERA in Virginia, which became the 38th state to ratify the amendment. Proponents say the Virginia vote was the final one needed to make the ERA officially an amendment to the U.S. Constitution.

Not so fast, say its opponents. While 38 states have ratified the ERA since its proposal in 1923, nearly 100 years ago, five states—Nebraska, Tennessee, Idaho, Kentucky and South Dakota—have since voted to rescind their ratification, largely due to the efforts of Phyllis Schlafly, the conservative founder of STOP ERA. Schlafly campaigned hard against the amendment, claiming it would result in gender-neutral bathrooms, same-sex marriage, and women in combat in the military. (These don’t seem like bad things today, but in Schlafly’s era, they were apparently terrifying.)

So what we have now is an amendment whose time for ratification expired back in 1982, but which plodded on nevertheless and, after renewed interest following the Women’s March and the #MeToo movement, finally obtained 38 state ratifications, the last three in just the past four years from Virginia, Nevada and Illinois. 

But could Congress simply extend the deadline for ratification, as the House voted to do yesterday? Supporters argue, that just as Congress had the power to set a deadline, so Congress has the power to extend the deadline. This is what Senate Joint Resolution 6 specifically states, and importantly it is co-sponsored by Alaska Senator Lisa Murkowski, a Republican. (Whether the measure has enough to overcome a Senate filibuster remains to be seen.) While there is some precedent for extending a deadline before it has passed, this would be the first time a deadline was extended after it had already lapsed. Trump’s Justice Department issued an opinion in January of 2020 stating the deadline set by Congress was binding and that the ERA was no longer before the states. But that conflicts with a 1977 Justice Department opinion which had approved of an earlier extension of the ERA. Suffice it to say, the legal status of the extension is a bit unclear.

And what about the states that rescinded their support? This has happened twice before, in fact, during the ratification of the 14th and 15th Amendments in the years following the Civil War. In those cases, Congress adopted resolutions declaring the amendments ratified, ignoring purported state rescissions. Nevertheless, in 1980 a federal court in Idaho ruled that the state’s rescission of the ERA was valid. This effectively threw the question up in the air. Generally speaking, where there are doubts over the validity of an amendment, Congress has the power to declare it valid, in a manner rather similar to an election dispute—something we all received an education in around January 6. This Congressional settling of an amendment’s validity actually happened once before in 1992 with the most recent 27th Amendment, ratified a full 203 years after Congress proposed it. 

With both the deadline and the rescinded ratifications gumming up the legal status of the ERA, many believe the issue will wind up before the courts, further delaying any official inclusion and implementation of the ERA. But courts are often loath to wade into something that feels decidedly a matter for the legislative branch to settle. Many assume, therefore, the Supreme Court will punt this question to Congress and tell it to sort it out, meaning that it will likely go nowhere so long as the Senate is evenly divided.

The ERA extension bill is thus likely yet another probable casualty of the impasse over the filibuster rule in the Senate. With the ERA supported by 80 percent of Americans, it will be increasingly clear that a minority of senators from largely rural, conservative states continue to thwart the will of the vast majority of Americans.