Equal Rights Amendment Getting Yet Another Shot?

WaPo fronts news that there’s a “New Drive Afoot to Pass Equal Rights Amendment.

Those of us over a certain age recall the ERA, which was the gender equivalent to the 14th Amendment. The key language: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Congress passed the Amendment in 1972 and sent it off to the states, with a 7 year expiration clause. After it failed in 1979, Congress granted a 3-year extension. It died again in 1982, in the early days of the Reagan administration.

Its opponents ultimately defeated the Amendment, just three states short of passage, by raising fears that women could be drafted into the military and that gender-specific restrooms and the like would be outlawed.

One would have thought that, like shag carpet, disco, and polyester leisure suits, this vestige of the 1970s would have stayed dead. After all, changes in the culture, a host of federal legislation and Supreme Court cases have made gender discrimination illegal or subject to intense judicial scrutiny.

There are some who claim the ERA is actually still alive:

Legal scholars debate whether the 35 state votes to ratify the amendment are still valid.

In 1997, three professors argued in the William and Mary Journal of Women and the Law that the ERA remained viable because in 1992 the Madison Amendment — which affects congressional pay raises — became the 27th constitutional amendment 203 years after it first won congressional approval. Under that precedent, advocates say, the ERA should become part of the Constitution once three-quarters of the states ratify it, no matter how long that takes.

The Madison Amendment, however, did not have an expiration clause. Starting with the 20th Amendment, which passed Congress in 1932, most have contained a final clause which stated “This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.” The ERA was among those.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Just to take it a step further, of the 35 states that ratified the amendment, four states explicitly and one state implicitly rescinded their ratification.

    Idaho, Kentucky, Nebraska and Tennessee rescinded their ratification. South Dakota put a sunset on their ratification so that it expired in 1979. Since the supreme court ducked the question of whether congress could extend (as opposed to starting over) the ratification process and if a state could rescind ratification, its unclear if those recensions could count.

    I would think that supporters of the ERA would learn a lesson from the gay marriage advocates. If the got three more states they would only invoke a legal wrangle. If the courts then forced the issue, they would in turn cause a back lash that would potentially hurt their cause more than the legal ruling could help.

    If the supporters think it is a good idea, start the process over. They should find no more receptive congress than the current one to get an amendment started. Do the political spade work to convince people that it is a good idea and that unintended consequences will not make things worse. In short, if you really believe this is best, work through the process, don’t try to finagle a result.

  2. And trust the people? That’s so, so reactionary.

  3. John Burgess says:

    I’d like to agree with Mr. Austin, but I’ve become jaded with the way the public will buy into most anything if it’s spun hard enough.. Alar, Al Gore, 9/11 conspiracy theories… the list is weepingly endless.

    I see another redundant law, actually made moot by societal and legal changes, being promulgated and opening a door to a whole new panoply of injunctions and law suits. The Law of Unintended Consequences is going to get a real workout.