Is The E.R.A. Really Just One State Away From Ratification? Maybe, Maybe Not.

Earlier this week, the Illinois legislature ratified the Equal Rights Amendment. What's unclear is if this act has any meaning at all.

Earlier this week, the Illinois Legislature purported to ratify the Equal Rights Amendment, which may or may not mean that the long-dormant amendment is just one state away from ratification:

The Illinois House voted Wednesday night to ratify the Equal Rights Amendment more than 45 years after it was approved by Congress, putting it one state away from possible enshrinement in the U.S. Constitution amid potential legal questions.

The 72-45 vote by the House, following an April vote by the Senate, was just one more vote than needed for ratification. It does not need the approval of Republican Gov. Bruce Rauner, who has said he supports equal rights but was faulted by Democrats for not taking a position on the ERA.

“I am appalled and embarrassed that the state of Illinois has not done this earlier,” said Democratic Rep. Stephanie Kifowit of Oswego, a Marine veteran. “I am proud to be on this side of history and I am proud to support not only all the women that this will help, that this will send a message to, but I am also here to be a role model for my daughter.”

Helping to propel momentum for the measure was a resurgence in activism for women’s rights amid national demands to root out sexual discrimination and harassment in American culture in response to the #MeToo movement.

As has been the case for decades, the legislative debate over the Equal Rights Amendment was fraught with controversy. Opponents largely contended the measure was aimed at ensuring an expansion of abortion rights for women. Supporters said it was needed to give women equal standing in the nation’s founding document.

Opponents also contended the measure may be moot, since its original 1982 ratification deadline has long since expired. Supporters argued, however, that the 1992 ratification of the 1789 “Madison Amendment,” preventing midterm changes in congressional pay, makes the ERA a legally viable change to the constitution.

State Rep. Peter Breen of Lombard, an abortion rights opponent, called the measure “an alleged constitutional amendment” and warned it would be adopting an “illegal act.” But Breen also contended supporters “have no other thing they want to do” than expand abortion rights.

“It will expand taxpayer funding of abortions, very well might roll back our parental notice (for minors to have an abortion) law and have other negative impacts on various abortion regulations,” Breen said.

But state Rep. Steve Andersson, a Geneva Republican, said the measure “isn’t about those distractions.”

“This is about who we are as a people. This is about who we believe the state of Illinois is and should be, going forward,” he said. “But it’s more than just the state of Illinois. It’s about the United States of America and quite frankly, I believe it’s about the planet. I believe it’s about how we treat women and men.”

(…)

“This is about the United States Constitution, people. And half the people in this country aren’t in it,” Rep. Lou Lang, a Skokie Democrat who sponsored the resolution in the House, said. “They aren’t included in the United States Constitution. Isn’t that enough for you to realize the historic moment and step back from predispositions you’ve had and your heels dug in the ground on this issue and that issue and the other issue?”

Whether the amendment can be added to the nation’s founding document is still a matter of debate among constitutional experts. Geoffrey Stone, a professor at the University of Chicago who specializes in constitutional law, said it’s unclear “there’s an obvious right or wrong answer.”

The Equal Rights Amendment, which would become the 28th Amendment to the Constitution if it were ratified, was first presented to the states in 1972 after it had passed both chambers of Congress with the required two-thirds majority. At the time, the proposed Amendment, while controversial in some quarters, was widely supported in others including by many leading Republicans such as Presidents Richard Nixon and Gerald Ford. At the time it was passed, the resolution under which it had passed Congress set a deadline of seven years for the measure to be ratified by the requisite number of states, meaning that the ratification period would expire by 1979. This provision of the Congressional resolution is similar to ones that had been attached to other Constitutional Amendments that had been presented to the states in those years, such as the Twentieth Amendment, the Twenty-First Amendment, the Twenty-Second Amendment, Twenty-Third Amendment, the Twenty-Fourth Amendment, the Twenty-Fifth Amendment, and the Twenty-Sixth Amendment. Each of these amendments was ratified roughly within a year or less after they had been submitted to the states, though, so the time period was not an issue in any of those ramifications. In some cases, the language was included in the Amendment itself and in others, it was part of the resolution that Congress sent to the states. With the E.R.A., the resolution that passed Congress in 1972 included a preamble that explains the purpose of the amendment and the text of the proposed amendment itself. Contained within the preamble was the stipulation that the proposed amendment would become “part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years of its submission by the Congress.”

Unlike the Amendments noted above, things did not go smoothly for the Equal Rights Amendment. By the time of the expiration of the seven-year period set by Congress, the measure had been ratified by 35 states, three short of the number needed for the Amendment to become part of the Consitution. The last such ratification took place in Indiana in 1977 and the Amendment hit a roadblock after that. With the time on the resolution running out, Congress passed a joint resolution that President Carter signed into law that purported to extend the ratification deadline to 1982. That resolution, though, was only passed by a simple majority rather than the two-thirds majority required by Article V of the Constitution and it was unclear at the time if the resolution was even effective. Whether it was or wasn’t turned out to be immaterial, though, since there was no further action by any state between 1978 and 1982. At that point, the Amendment passed into history, seemingly to join the list of failed Constitutional Amendments. In 2017, though, Nevada’s legislature purported to ratify the Amendment, making it the 36th state to ratify the Amendment, and then this week Illinois joined the list, leading supporters of the Amendment to claim that they were just one state away from ratification.

In addition to the passage of time and the fact that the expiration date, and extension, passed by Congress lapsed some thirty-six years ago, there’s one other complicating factor that throws the issue of ratification into doubt. Going as far back as 1973, there have been four states — Nebraska, Tennessee, Idaho, and Kentucky — whose legislatures have purported to rescind their previous ratifications of the ERA. In the case of the Kentucky resolution, that measure was vetoed by the Acting Governor at the time but it’s unclear if that veto has any legal effect. Also unclear is whether or not the attempts of any of these states to rescind their ratifications has any legal effect. The Constitution is silent on the issue, and it is one that has never been litigated by the Court However, if the rescissions are legally effective then it would mean that the number of ratifications would be cut by three or four, meaning that ratification would be either four or five states away rather than just one even if the ratifications by Nevada and Illinois are considered legally binding.

All of this means that the actual future of the E.R.A. is very much up in the air and that there would likely be a lengthy legal battle to determine its legitimacy even it if were ratified by a hypothetical 38th state.

First of all, there’s the practical matter of figuring out which state might be a likely state to ratify the Amendment in the near future. Assuming for the sake of argument that the revocations of ratifications noted above are not legally effective, there are 13 possibilities for ratification — Alabama, Arizona, Arkansas, Florida, Georgia, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Utah, and Virginia. Of these, organizers appear to believe that the most likely candidates were Virginia, North Carolina, Georgia, and Florida. All of these state legislatures are controlled by Republicans, though, and the closest any of them came to voting on the amendment came this year was in Virginia, where the House of Delegates declined to take up the resolution and a Senate committee rejected it on a 9-5 party-line vote. There are presently no known efforts to bring the amendment up in any of the other states.

A second question deals with the issue of the states that have voted to rescind their ratifications, some of which date as far back as 1973, just a year after the Amendment was presented to the states. As noted Article V of the Constitution, which governs the Amendment process, is silent on the issue and it is one that has not been tested in the Courts in the past. Assuming these revocations are valid, then the E.R.A. is actually four or five states short of ratification rather than just one, making the prospect of future ratification difficult at best. Given the fact that the Constitution does not appear to give states the authority to rescind a ratification, one could make the argument that these recessions are invalid, of course, but that would likely be an issue that the Federal Courts, and most likely ultimately the Supreme Court, would be required to take up in the event supporters found another state to ratify the amendment.

A third question is whether the insertion of a deadline for ratification that was included with the E.R.A. when it was originally passed by Congress is of any legal effect. Supporters of the Amendment could argue that there is no specific provision of Article V that authorizes Congress to set such a deadline, for example. If that were the argument accepted by the Court then the expiration of the deadline would be meaningless and the Amendment remains dormant but still capable of being ratified. In this respect, the relevant example that supporters could point to, of course, would be the Twenty-Seventh Amendment. This Amendment, which places limits on when a pay increase for Members of Congress and the Senate would take effect, was first proposed as part of the original Bill of Rights but was only ratified by six states by 1792, short of the three-fourths majority needed. The Amendment laid dormant until the 1980s when some activists developed an argument for why the Amendment would still be eligible for ratification. This led to a political movement that quickly pushed the Amendment through the remaining 32 states needed for ratification. When that number was reached in 1992, the Amendment was declared ratified. There has been no legal challenge to the amendment since then.

Alternately, a court could decide that the ratification deadline set by Congress was legally effective. One argument in favor of that could potentially be the fact that Article V does give Congress the authority to establish the “mode of ratification” for any amendment, although that could arguably be meant to refer to the question of whether the ratification can be done via the state legislatures, or whether it must be done via a state convention process. If a Court accepts this argument, then every ratification that took place after 1979 would be invalid since the ratification period had passed.

To work around this issue, supporters have argued that Congress would have the power to extend the ratification period retroactively, although it’s not clear at all that any such authority exists in the Constitution. As with the issues of recessions of past ratification and the setting of a deadline for ratification, Article V is silent on the issue. Additionally, if such an authority does exist, it is equally unclear if such an extension could be granted retroactively, and whether it would need a simple majority or a two-thirds vote in each chamber to be effective. Again, this is yet another issue that would have to be dealt with by the Courts.

A final legal question revolves around the question of whether or not it is proper to consider ramifications that were passed at the state level as long as forty-six years ago to be legally effective. In response to this argument, of course, supporters could point to the ratification of the Twenty-Seventh Amendment, which included six ratifications that occurred 202 years before the amendment was declared ratified. As noted, though, the validity of that amendment has never been addressed in Court. At the same time, though, one could argue that ratifications that took place nearly a half-century ago cannot be considered to be an accurate reflection of the political reality of the time. Arguably, this is not the type of ratifications that the Founders intended. In any case, this is yet another legal issue that Courts will most likely have to decide.

Going beyond all these legal issues, of course, there is the question of whether or not the E.R.A. is even necessary at this point in time. In the forty-six years since Congress first proposed the amendment to the states, there have been significant advances regarding laws regarding gender discrimination both in the courts and in Congress and in the Courts. In most cases, those advances address the inadequacies in existing law that supporters of the E.R.A.cited in their arguments in support of the amendment when it was first proposed. The courts have held in a long line of cases that gender discrimination under the Civil Rights Act of 1964 and the Equal Protection clause of the Fourteenth Amendment can only be justified if it can be shown that the law in question furthers an important government interest via means that are “substantially related” to that interest. Additionally, both Congress and many states have passed laws dealing with specific types of private discrimination such as equal pay, discrimination against pregnant women, and other issues. Given this, one could argue that the E.R.A. is no longer necessary.

Whether one agrees with that conclusion, though, it’s clear that the legal fate of the E.R.A., which could arguably be a Constitutional dead letter at this point, is far from clear. Accordingly, this week’s events in Illinois may have been entirely meaningless.

FILED UNDER: Gender Issues, Law and the Courts, U.S. Constitution, US Politics,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Andy says:

    Plus we’d get into an argument over what “sex” is in our post-modern politics – biological sex, as was intended for this amendment, or the more expansive definition that includes any aspect of “gender.”

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  2. Gustopher says:

    Haven’t we already found these rights in the constitution, and in federal law? I don’t see what problems passing the ERA would actually solve.

    One problem I can see it creating, however, is a need for every protected class to get an amendment protecting their rights, as then it could be claimed that the protected classes would need to be explicitly enumerated.

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  3. HarvardLaw92 says:

    @Gustopher:

    Haven’t we already found these rights in the constitution, and in federal law? I don’t see what problems passing the ERA would actually solve.

    This was (and is) the basis of my distaste for the ERA. If you think about it for a moment, it’s humiliating for women.

    The premise of amending the Constitution to declare that women are equal under the law to men? Frankly, I’m pretty mortified to find that there was ever reason to believe that they weren’t. They’re citizens of this country, and thus equally protected. The same 5th and 14th Amendments that protect me and you equally protect them.

    We didn’t need a constitutional amendment to come to the conclusion that homosexuals, for example, are entitled to equal protection under the law (hence Obergefell, et al). The 14th Amendment already made that fact abundantly clear .We don’t need one for women either. What we need are a bunch of pissed off women heading to federal court, non-stop, until the situation is righted.

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  4. James Joyner says:

    @HarvardLaw92: I think you’re right with two caveats. First, women’s right to vote wasn’t established until the 19th Amendment, decades after the 14th. Second, the mere fact that Congress sought decades later still to amend the Constitution—and the states declined to do so—to grant full equality to women would seem prima facie evidence that they weren’t and aren’t.

    The courts seem, since the 1980s, to have taken your view. I think it’s a perfectly reasonable interpretation of the text of the 14th and application of modern notions of justice. But it’s also clearly not the intent of those who passed the 14th Amendment way back in 1868.

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  5. HarvardLaw92 says:

    @James Joyner:

    But it’s also clearly not the intent of those who passed the 14th Amendment way back in 1868.

    I’d disagree. The text of the 14th Amendment was debated, argued over and revised ad nauseum to produce the final verbiage.

    That verbiage is in no way unclear. In fact, it goes out of its way to press its point.

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

    All persons … shall not deprive any person … nor deny to any person. Heck, equal protection isn’t even predicated on citizenship status, much less gender.

    We can go back further to Article I:

    The House of Representatives shall be composed of Members chosen every second Year by the People of the several States

    Not men … People …

    The state of affairs rectified by the 19th Amendment was the result of our institutions ignoring the law, not a case of the law justifying it. The courts have subsequently taken a different view for one reason: the people affected by the disparities got fed up and pushed back.

    Hence my final observation: what we need are pissed off women willing to push the point until it breaks. If any of them desire legal representation in pursuit of that goal, sign me up for pro bono. I’m on board.

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  6. @James Joyner:

    I tend to agree with @HarvardLaw92: regarding the 14th Amendment. While it’s clear that the 14th Amendment was passed primarily to extend citizenship and other rights to freed slaves and other African-Americans, the fact that the language used was general rather than specific seems to make it clear that the drafters of the Amendment understood that it would apply more than just African-Americans in general or African-American males in particular.

    In fact, I’m not aware of anyone who has seriously made the argument in a legal opinion that the Equal Protection Clause in particular was not intended to apply to every American. The debate, as it was in many of the same-sex marriage cases, is over what the government must show to justify laws that appear to act or apply in a discriminatory manner. This is why we have differing levels of scrutiny depending on the group we’re talking about. In some cases, the law or policy in question must pass the so-called “strict scrutiny” test, which generally applies to any form of discrimination based on race or ethnicity. Just below that there’s “heightened” or “intermediate” scrutiny, which has generally been held to apply to categories such as age and gender. Finally, there’s the lowest level of scrutiny, the “rational basis” test which merely requires the government to provide any rational basis for the law in question. Needless to say, very few laws are struck down under the rational basis test.

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  7. @HarvardLaw92:

    I’m not familiar enough with the history, but do you know if the Suffragette movement ever tried to challenge laws barring women voting under the 14th Amendment and the Equal Protection Clause?

    It probably wouldn’t have worked at the time, of course, but it would have been an interesting challenge. The 19th Amendment, of course, makes it unnecessary.

    I’d also note that the point you make about the 14th Amendment and the right to vote also arguably applies to the 26th Amendment and the laws that didn’t allow people to vote until they were 21. That too, however, is pretty much a moot point.

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  8. Ben Wolf says:

    @James Joyner: Explicit language is necessary to further advance legal and social equality regardless of gender, sex, race and place of birth. That certain retrograde forces are so determined, and have been determined for decades, to prevent such language demonstrates they consider it a serious threat to their social position.

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  9. @Ben Wolf:

    What exactly is deficient under current law that would be fixed by the passage of the ERA? Keep in mind that the amendment would only apply to government action, not private action.

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  10. HarvardLaw92 says:

    @Doug Mataconis:

    The bellwether case in that regard is Minor v. Happersett, in which SCOTUS held that the constitution specifies no inherent right to vote in the first place. Nevermind that Article I explicitly specifies that “the people” will elect representatives to Congress every second year.

    I’d argue, and I suspect you’d agree, that Article I establishes an inherent right, indeed a responsibility, for the people to vote. That creates a case where the existence of the right can’t be questioned. It’s not a case of “you must give me this”; it’s instead a case of “you need to advance a constitutionally permissible justification for denying it to me”.

    Essentially the same legal reasoning that was successfully applied in the SSM cases. It wasn’t a situation where homosexuals had to demonstrate that they were entitled to equal protection. The 14th Amendment grants them that right, as it does for every person subject to the laws of the United States. It was a situation where the state had to demonstrate a defensible argument for denying it to them. They couldn’t, therefore they lost (as they should have).

    With regard to Minor, it alludes to what I asserted above: the situation regarding women’s suffrage wasn’t a case of the Constitution denying the right to them. It was a case of legal practitioners twisting the Constitution in order to to unconstitutionally impose their biases.

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  11. @HarvardLaw92:

    It was also a case of the Judiciary not applying what seems to be the clear language of the 14th Amendment to the facts of the case before them. As Plessy v. Ferguson made clear, they couldn’t even get it right when it came to the application of the amendment to African-Americans.

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  12. JKB says:

    Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

    Seems to me that would just reinforce the illegality of programs at public universities that favor those of the female sex. Professor Mark Perry has prevailed on the U of Michigan to stop their unconstitutional sex discrimination against males and gender non-conforming students citing the Michigan constitution.

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  13. Sleeping Dog says:

    @HarvardLaw92:

    Are you saying that women are people too? — Sorry I couldn’t resist paraphrasing Mitt Romney.

    Tend to agree that the equal rights amendment is redundant.

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  14. Gustopher says:

    @Sleeping Dog: The broad language of the 14th Amendment has been used to uphold the rights of corporations, on the grounds that they are artificial people. I’m pretty sure that even women, racial minorities and LGBTetc folks are more “people-ish” than corporations

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  15. grumpy realist says:

    @Doug Mataconis: Didn’t Scalia use the fact that the Fourteenth Amendment had NOT provided women with the right to vote and another Amendment had to be added when arguing about exactly how many equal rights were in the Fourteenth Amendment? (This quite often showed up as click-bait on liberal sites accusing Scalia of not believing women having equal rights under law, which I think is a deliberate misstatement. SJWs, gah….)

    And I seem to remember that at least one suffragette tried to use the Fourteenth Amendment argument to sue for her right to vote under law and the case was thrown out of court as frivolous.

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  16. Tyrell says:

    Equal pay: I hear that a lot and certainly agree. But I have seen the equal work side of it. That is when the men still get the heavy lifting even in the office work: unloading the supply truck when it rolls up, distributing the copy paper that weighs a ton, cleaning the break room refrigerator and microwave, moving a computer, and some other tasks I experienced in the construction fields such as crawling under a house or working in a ditch. I have worked along side of many women who pulled their share of the load and were right there with the men. But most of the time the men still do the heavy lifting and dirty work.
    “Women’s Lib – until the waiter brings the check”

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  17. grumpy realist says:

    @Tyrell: Yes, it’s amazing how the differential ability to lift 50 lbs vs 30 lbs somehow ends up in a 15$/hr difference in one’s pay check across so many disciplines. Even if lifting heavy objects is not, in fact, one of the requirements of the job.

    If for nothing else than to blow the “men should be paid more because they can lift more” argument out of the water, bring on the robots!

    P.S. And I could say a similarly-skewed note complaining about how “equal work” still means that women are expected to fall into the housecleaning/typing/taking notes/acting as secretary roles, because (and this is gospel truth) I have experienced all of this in MY work history.

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  18. grumpy realist says:

    @Tyrell: P.S. You should read up on why women get antsy about the whole who-pays-on-a-date thing anyway. On the one hand, we’re not prostitutes and don’t want for there to be an unspoken assumption of “you pay for drinks, I’ll provide you with sex.” There are a lot of guys who seem to think that paying for the meal and drinks also pays for sexual access to the female involved.

    On the other hand, there also exists a small subsection of men who get angry if we DO try to pay for our own stuff and we don’t like getting called a feminazi bitch, either.

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  19. Bill Walker says:

    The article says the courts have never ruled on this issue. That is incorrect. In 1939 the Supreme Court ruled in Coleman v Miller that the amendment process was entirely controlled by Congress and that any ruling by the court was “advisory” in nature having no constitutional effect whatsoever. See: http://www.foavc.org/Legal/Page_Seventeen_M.htm . So the long and short of the answer is: it will be decided by Congress. The court directly addressed the issue of rescission in the ruling. It held as with the rest of its ruling it was for Congress to determine.

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