The Repurposing Life

The History of the Equal Rights Amendment

The Equal Rights Amendment (ERA) is a proposed amendment (known as Article V) to the United States Constitution designed to guarantee equal legal rights for all Americans regardless of sex. Proponents assert it would end legal distinctions between men and women in matters of divorce, property, employment discrimination and the pay gap.

Article Resolution Text

The resolution, “Proposing an amendment to the Constitution of the United States relative to equal rights for men and women”, reads, in part:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two–thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three–fourths of the several States within seven years from the date of its submission by the Congress:

“ARTICLE—

“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.

“Sec. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

“Sec. 3. This amendment shall take effect two years after the date of ratification.”

Before There Was An Equal Rights Amendment

On September 25, 1921, the National Woman’s Party (NWP), a women’s political organization formed in 1916 to fight for women’s suffrage, announced its plans to campaign for a constitutional amendment to guarantee women equal rights. In 1923, at Seneca Falls, New York, Alice Paul would revise the proposed amendment.

First Draft of the Equal Rights Amendment

The first version of an ERA was written by Alice Paul and Crystal Eastman and introduced in Congress in December 1923. Early on, middle–class women were largely supportive of the ERA, while the working class were often opposed. Ironically pointing out that employed women needed special protections regarding working conditions and employment hours.

Alice Paul, the head of the NWP, named this first draft the “Lucretia Mott Amendment”, after a female abolitionist who fought for women’s rights and attended the First Women’s Rights Convention. The proposal was seconded by Dr. Frances Dickinson, a cousin of Susan B. Anthony.

Paul believed that the Nineteenth Amendment would not be enough to ensure equality between men and women. The Nineteenth Amendment to the U.S. Constitution prohibits denying the right to vote to American citizens on the basis of sex.

1920s

The Feminist Split

Since the 1920s, the ERA has seen discussions among women’s groups about the meaning of gender “equality”. Alice Paul and the NWP asserted that women should be on equal terms with men in all regards, even if that meant sacrificing some legislative protections, such as shorter work hours and no night work or heavy lifting.

The NWP had already tested its approach in Wisconsin, where the Wisconsin Equal Rights Law of 1921 was passed. The party then took the ERA to Congress, where U.S. Senator Charles Curtis, who would later become vice president of the U.S., introduced it for the first time in October 1921.

In 1924, The Forum hosted a debate between Doris Stevens, a women’s legal rights activist and Alice Hamilton, a physician, concerning the two perspectives on the proposed amendment and the two approaches toward gender equality. One approach emphasized the common humanity of women and men, while the other stressed women’s unique experiences and the ways in which they differed from men, seeking recognition for their specific needs.

Their debate reflected the broadening wedge within the feminist movement of the early 20th century. The debate also touched upon class struggles between working class and professional women.

Opposition to the Equal Rights Amendment

Opponents of the amendment, such as the Women’s Joint Congressional Committee (WJCC), a coalition of women’s rights organizations formed after the women’s vote in 1920, aimed at lobbying for women’s issues at the national level, believed that the loss of these benefits would not be worth the supposed gain in equality. 

Many labor feminists (a women’s movement that emerged in the 1920s, focused on gaining rights in the workplace and unions), a variant of social feminists, also opposed the ERA on the basis that it would eliminate protections for women under labor laws, though since, unions and labor feminist leaders have begun supporting it.

Beginning in 1923, opposition to the ERA was led by Mary Anderson, a labor activist and advocate of equal rights; Anderson rallied support to ratify many new laws in support of women in the workplace. As well as the U.S. Women’s Bureau (WB), an agency of the U.S. government within the Department of Labor (DOL), that works to create parity for women in the work force.

Two Factions: U.S. Women’s Bureau and Labor Advocates

These two factions argued that legislation including mandated minimum wages, safety regulations, restricted daily and weekly hours, lunch breaks, and maternity provisions would be more beneficial to the majority of women who were forced to work out of economic necessity, and not personal fulfillment. As voiced by Dr. Alice Hamilton, in her speech “Protection for Women Workers.”

The ERA was strongly opposed by the American Federation of Labor (AFL), a federation of unions founded in Columbus, Ohio, on December 1886, as well as other labor unions, that feared the amendment would invalidate protective labor legislation for women. 

1930s

Opposition to the Equal Rights Amendment

Eleanor Roosevelt and most supporters of President Franklin D. Roosevelt’s New Deal programs also opposed the ERA. They felt that the ERA was designed for middle–class women, but that working–class women needed government protection in the workplace.

They also feared that the ERA would undercut labor unions that were at the core of the male–dominated New Deal coalition (a political coalition that supported Roosevelt’s response to the Great Depression). Most northern Democrats aligned themselves with anti–ERA labor unions and also opposed the amendment.

1940s

In 1943, Alice Paul further revised the text of the ERA to reflect the wording of the Fifteenth and Nineteenth Amendments. The Fifteenth Amendment prohibits the federal government and each state from denying or abridging a citizen’s right to vote “on account of race, color, or previous condition of servitude.” The Fifteenth Amendment was ratified on February 3, 1870. This text became Section 1 of the version of the ERA passed by Congress in 1972.

Opposition to the Equal Rights Amendment

In the 1940s, ERA opponents proposed an alternative to Alice Paul’s revision, which provided that “no distinctions on the basis of sex shall be made except such as are reasonably justified by differences in physical structure, biological differences, or social function.” This alternative was quickly rejected by both pro and anti–ERA coalitions.

Support for the Equal Rights Amendment

The Republican Party (also referred to as the GOP) included support of the ERA in its platform beginning in 1940, renewing the plank every four years until 1980. At the 1944 Democratic National Convention, democrats decided to include the ERA in their platform, but the Party would not become united in favor of the amendment until 1972. 

1950s

Hayden Rider and Protective Labor Legislation

In 1950 and 1953, the ERA was passed by the Senate with a provision known as “the Hayden rider”, which was introduced by Senator Carl Hayden (D–Arizona). The Hayden rider added: “The provisions of this article shall not be construed to impair any rights, benefits, or exemptions now or hereafter conferred by law upon persons of the female sex.” This modification allowing women to keep existing and future protections was meant to make the ERA more appealing to its opponents.

Yet, it caused the supporters of the original ERA to feel it negated the amendment’s initial purpose—resulting in the blocking of the ERA in the House. ERA supporters were hopeful that President Eisenhower’s second term would advance their agenda, as Eisenhower had publicly assured American women equality of rights.

In 1958, Eisenhower showed support for the amendment by asking Congress to pass the ERA, the first president to do so. However, the NWP found the amendment to be unacceptable and asked it to be withdrawn whenever the Hayden rider was appended.

1960s

At the Democratic National Convention in 1960, a proposal to endorse the ERA was rejected after it was opposed by groups including the American Civil Liberties Union (ACLU), the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO), labor unions such as the American Federation of Teachers, Americans for Democratic Action (ADA), the American Nurses Association, the Women’s Division of the Methodist Church, and the National Council of Jewish Women, the National Council of Catholic Women, and the National Council of Negro Women. 

Presidential candidate John F. Kennedy announced his support of the ERA in October 21, 1960. Kennedy named Esther Peterson Assistant Secretary of Labor. Peterson opposed the ERA believing it would weaken protective labor legislation for women. Peterson preferred the so–called “specific bills for specific ills” approach to equal rights legislation. 

President Kennedy appointed a blue–ribbon commission on women. The President’s Commission on the Status of Women (PCSW) was created by Kennedy’s Executive Order 10980, signed December 14, 1961. In 1975 it would become the National Association of Commissions for Women (NACW) to investigate the problem of sex discrimination in the U.S. Ultimately, Kennedy’s ties to labor unions meant that he and his administration would cease to support the ERA.

In the early 1960s Eleanor Roosevelt chaired the PCSW, she still opposed the ERA but no longer spoke against it publicly. Roosevelt announced that due to unionization, the ERA was no longer a threat to working–class women. She never did endorse the ERA.

After her death, the NACW reported that the ERA was unnecessary, believing that the Supreme Court could give sex the same treatment as the race and national origin interpretations of the Fifth and Fourteenth Amendments. Ultimately, the Supreme Court would not give sex the same interpretative treatment as it had race and national origin.

The NACW did help pass the Equal Pay Act of 1963, which banned sex discrimination in wages in a number of professions (it would be amended in the early 1970s to include professions it had initially excluded) and secured an executive order from President Kennedy eliminating sex discrimination in the civil service.

The NACW unearthed widespread sex discrimination and went on to propose remedies: it spurred the establishment of branch commissions at state and local levels, and arranged for follow–up conferences in years to come. The following year, through the efforts of Alice Paul and Coretta Scott King, and the influence of Representative Martha Griffiths (D–Michigan), the Civil Rights Act of 1964 banned workplace discrimination not only on the basis of race, religion, and national origin, but also on the basis of sex.

Second Wave Feminism

A new women’s movement, second–wave feminism, a period of feminist activity that began in the early 1960s and lasted roughly two decades, gained ground in the later 1960s as a result of multiple factors: 

1. Betty Friedan, a feminist writer, activist and leading figure in the women’s movement. Friedan’s 1963 bestseller The Feminine Mystique is often credited with sparking the “second wave” of feminism in the U.S.
2. The network of women’s rights commissions formed by Kennedy’s NACW.
3. Frustration over the lack of the Equal Employment Opportunity Commission (EEOC) and the federal government’s enforcement of the Equal Pay Act and Title VII of the Civil Rights Act.
4. Disillusionment over American women’s overall social and economic status.

In June 1966, at the Third National Conference on the Status of Women in Washington, D.C., Betty Friedan and a group of activists formed the National Organization for Women (NOW) demanding full equality for American women and men. In 1967, at the urging of Alice Paul, NOW endorsed the ERA. The decision caused some Democrats and social conservatives to leave the organization and form the Women’s Equity Action League (WEAL), which would end up endorsing the ERA within a few years anyway.

The move to support the amendment benefited NOW in the end by bolstering its membership. By the late 1960s, NOW had made significant political and legislative victories and gained enough power to become a major lobbying force.

Gender Roles and Paleoconservative Views

Then the most prominent opponent of the ERA, Phyllis Schlafly, an activist who held “paleoconservative” social and political views, mobilized a group of conservative women to oppose the ERA. Paleoconservatism is a political philosophy in the U.S. stressing nationalism, Christian ethics and traditionalist conservatism. Paleoconservatism’s concerns overlap with those of the Old Right, paleolibertarianism and right–wing populism.

Paleoconservatism ideology centers on the return to traditional conservative ideals relating to gender, culture, and society. Paleoconservatives oppose abortion, gay marriage and LGBTQ rights. For more information on the evolution of this ideology and the political, economic and social ramifications on the fabric of American society, see my post on Dominionists and the American New World Order.

This group focused on traditional gender roles, a defense that proved to be a useful tactic. They appealed to married women by stressing that the amendment would invalidate protective laws, such as alimony, and eliminate the tendency for mothers to obtain custody over their children in divorce cases. An argument that resonated especially with working–class women. They even suggested that single–sex bathrooms would be eliminated and same–sex couples would be allowed to get married.

Schlafly argued that the ERA would lead to women being drafted by the military and that women’s colleges would have to admit men. Schlafly would often incite strife and conflict at rallies during her speeches. She claimed, erroneously, that passage of the amendment would threaten Social Security benefits for housewives. Schlafly also argued that men and women were already equal enough with the passage of the Equal Pay Act of 1963 and the Civil Rights Act of 1964.

Women who supported traditional gender roles began to oppose the ERA. In Illinois, Schlafly’s supporters used traditional symbols of the American housewife as weapons of propaganda. They took homemade bread, jams, and apple pies to the state legislators, with the slogans, “Preserve us from a Congressional jam; Vote against the ERA sham” and “I am for Mom and apple pie.”

Support for the Equal Rights Amendment

The main support base for the ERA until the late 1960s was among middle class Republican women. The League of Women Voters (LWV) opposed the ERA until 1972, fearing the loss of protective labor legislation. The LWV became a merger of National Council of Women Voters, founded by Emma Smith DeVoe, and National American Woman Suffrage Association (NAWSA).

1970s

In 1969, newly elected representative and first black woman elected to Congress Shirley Chisholm (D–New York) would give her famous speech “Equal Rights for Women” on the floor of the U.S. House of Representatives. On August 10, 1970, she gave a speech on the ERA called “For the ERA” in Washington, D.C. In her address, she claimed that sex discrimination had become widespread and that the ERA would remedy it. She also claimed that laws to protect women in the workforce from unsafe working conditions would be needed by men, too, and thus the ERA would help everyone.

The Women’s Movement

Then, the rise of the women’s movement (ideologies aimed at defining, establishing, and defending a state of equal political, economic, cultural, and social rights for women) during the 1960s garnered the ERA increasing support.

Congressional Passage

In February 1970, NOW disrupted the U.S. Senate’s hearings on an unrelated constitutional amendment and demanded a hearing with the senators to discuss the ERA.

On August 10, 1970, Martha Griffiths (D–Michigan) successfully brought the ERA to the House floor, after 15 years remaining blocked in the House Judiciary Committee. The resolution passed in the House and continued on to the Senate, which voted for the ERA with an added clause exempting women from the military. But, the 91st Congress would conclude before the resolution could progress any further.  

In August 26, 1970, over 20,000 women held a nationwide Women’s Strike for Equality, celebrating the 50th anniversary of the passing of the Nineteenth Amendment, in order to demand full social, economic, and political equality.

Despite having a small number of participants in contrast to the large–scale anti–war and civil rights protests that had occurred previously, the strike was heralded as a big turning point in the rise of second–wave feminism. In Washington, D.C., the Senate was presented with a petition for the ERA at the U.S. Capitol. Even news sources such as Time Magazine showed support for the cause. Soon after the strike took place, literature spreading awareness of the ERA was distributed across the country.

Representative Martha Griffiths reintroduced the ERA with H.J.Res. 208, which was adopted by the U.S. House of Representatives on October 12, 1971. It was then adopted by the U.S. Senate on March 22, 1972. President Richard Nixon immediately endorsed the ERA’s approval upon its passage by the 92nd Congress; thus submitting the ERA to the state legislatures for ratification (formal confirmation or sanction), as provided for in Article V of the U.S. Constitution.

Ratification Deadline

Although the ERA was introduced in every congressional session between 1921 and 1972, it almost never reached the floor of either Senate or House for a vote. Instead, it was usually blocked in committee. Congress had originally set a ratification deadline for the amendment of March 22, 1979.

Through 1977, the amendment received 35 of the 38 state ratifications. With bipartisan support (including that of both political parties, both houses of Congress, as well as presidents Richard Nixon, Gerald Ford, and Jimmy Carter) the ERA was on track for ratification.

Leading the Stop ERA campaign was Phillis Schlafly. When Schlafly began her campaign in 1972, public polls showed support for the amendment was widely popular, and by 1973 thirty states had ratified the amendment. After 1973, the number of ratifying states slowed to a trickle.

Support in the states that had not ratified fell below 50%. In their research article “The Equal Rights Amendment Reconsidered: Politics, Policy, and Social Mobilization in a Democracy,” published January, 2008, Donald T. Critchlow and Cynthia L. Stachecki note that public opinion in key states shifted against the ERA as opponents, operating on local and state levels, won over the public. The state legislators in battleground states followed public opinion in rejecting the ERA.

Phyllis Schlafly was a key player in this defeat. Political scientist Jane Mansbridge argues that the draft was the single most powerful argument used by Schlafly and fellow opponents against the ERA. Legal scholar Joan C. Williams maintains that the ERA was defeated when Schlafly turned it into a war among women over gender roles. 

Historian Judith Glazer–Raymo asserted that the pro–ERA movement represented the forces of reason and goodwill, but underestimated the power of the “family values” argument as well as the single–mindedness of Schlafly and her followers.

The ERA’s defeat seriously damaged the women’s movement, destroying its momentum and its potential to foment social change. This would eventually result in feminist dissatisfaction with the Republican Party, giving Democrats a new source of strength that, when combined with overwhelming minority support, would elect Bill Clinton to the presidency in 1992 and again in 1996.

Many ERA supporters blamed the defeat on special interest groups, especially the insurance industry as well as conservative organizations, suggesting that they had funded an opposition that subverted the democratic process and the will of the pro–ERA majority. Such supporters argued that while the public face of the anti–ERA movement was Phyllis Schlafly and her STOP ERA organization, there were other important and significant groups working in the background of the opposition.

Groups such as the National Council of Catholic Women, labor feminists and (until 1973) the AFL–CIO. Opposition to the amendment was particularly high among religious conservatives, who argued that the amendment would guarantee universal abortion rights and the right for homosexual couples to marry. 

Critchlow and Stachecki’s article reports that the anti–ERA movement had strong backing among Southern whites, Evangelical Christians, members of the Church of Jesus Christ of Latter–day Saints (known as the Mormon Church), Orthodox Jews, and Roman Catholics. The ERA has long been opposed by anti–abortion groups who believe it would allow legal abortion without limits with taxpayer funding.

Support for the Equal Rights Amendment

Supporters of the ERA point to the lack of a specific guarantee in the Constitution for equal rights protections on the basis of sex. In 1973, future Supreme Court justice Ruth Bader Ginsburg argued for the ERA in the American Bar Association Journal.

NOW and ERAmerica, a coalition of almost 80 organizations, led pro–ERA efforts between 1972 and 1982. ERA supporters held rallies, petitioned, picketed, went on hunger strikes, and performed acts of civil disobedience. On July 9, 1978, NOW and other organizations hosted a national march in Washington D.C., which garnered over 100,000 supporters, followed by a Lobby Day on July 10.

Support Among Black Americans

Many African–American women have supported the ERA. By 1976, 60% of African–American women and 63% of African–American men were in favor of the ERA, and the legislation was supported by organizations such as the National Association for the Advancement of Colored People (NAACP), National Council of Negro Women (NCNW), Coalition of Black Trade Unionists (CBTU), National Association of Negro Business (NANBPWC), and the National Black Feminist Organization (NBFO).

Support Among Republicans

Many Republican women supported the ERA including Florence Dwyer, Jill Ruckelshaus, Justice Sandra Day O’Connor, First Lady Betty Ford and Senator Margaret Chase Smith. Support from Republican men included President Dwight D. Eisenhower, President Richard Nixon, Senator Richard Lugar and Senator Strom Thurmond.

Congressional Extension of Ratification Deadline

The original resolution (H.J.Res. 208) by which Congress proposed the amendment, included the clause “within seven years from the date of its submission.” Setting the deadline for the amendment to be ratified by the requisite number of states as March 22, 1979.

In 1978, as the deadline approached, Representative Elizabeth Holtzman (D–New York) introduced H.J.Res. 638 that was passed by Congress and signed by President Carter extending the deadline for ratification to June 30, 1982. The president’s signature being an empty gesture since back in 1798 the U.S. Supreme Court ruled in Hollingsworth v. Virginia that the president has no role in the passing of constitutional amendments.

The joint resolution received less than two–thirds of the vote (a simple majority only, not a supermajority) in both the House and the Senate. However, since during this disputed extension, no additional states either ratified or rescinded, the validity of that extension was rendered moot.

1980s

The 1980 Republican National Convention was the first presidential election year that the party dropped its support for the ERA in four decades.

Support for the Equal Rights Amendment

On June 6, 1982, NOW sponsored marches in states that had not ratified the ERA including Florida, Illinois, North Carolina, and Oklahoma. Key feminists of the time, such as Gloria Steinem, spoke out in favor of the ERA, arguing that ERA opposition was based on gender myths that overemphasized differences and ignored real evidence of unequal treatment between men and women.

Lawsuits Regarding Deadline Extension

On December 23, 1981, in the case of Idaho v. Freeman, a federal district court ruled that the extension of the ratification deadline to June 30, 1982 was not valid. On January 25, 1982 the U.S. Supreme Court stayed the decision.

On October 4, 1982, in the case of NOW v. Idaho, 459 U.S. 809 (1982), the U.S. Supreme Court vacated the federal district court decision in Idaho v. Freeman. The U.S. Supreme Court also declared these controversies moot based on the appellant Gerald P. Carmen, the General Services Administrator (GSA).

Subsequent Congressional Action

The amendment has been reintroduced in every session of Congress since 1982. Senator Ted Kennedy (D–Massachusetts) championed it in the Senate from the 99th Congress through the 110th Congress.

In 1983, the ERA passed through House committees with the same text as in 1972; however, it failed by six votes to achieve the necessary two–thirds vote on the House floor. That was the last time that the ERA received a floor vote in either house of Congress.

1990s

Beginning in the mid–1990s, ERA supporters began an effort to win ratification of the ERA by the legislatures of states that did not ratify it between 1972 and 1982. These proponents claim that Congress can remove the ERA’s ratification deadline despite it having expired, allowing the states legislatures to ratify it. ERA supporters also state that previous ERA ratifications remain in force, and that rescissions of prior ratifications are invalid. 

2000s

On June 21, 2009, NOW decided to undertake a two–pronged effort: to obtain additional state ratifications for the 1972 ERA, and to submit a fresh–start ERA to the states for ratification.

2010s

Fourth–Wave Feminism

In the 2010s, prompted by fourth–wave feminism and the #MeToo movement there was renewed interest in the ratification of the ERA. Fourth–wave feminism is a movement that began around 2012 focused on empowering women through the use of internet tools and intersectionality. The #MeToo movement is a social movement fighting sexual abuse and sexual harassment, where allegations of sex crimes are publicized. The phrase “Me Too” was initially used in 2006 on MySpace by sexual assault survivor and activist Tarana Burke.

Proposed Removal of Ratification Deadline

On March 8, 2011, the 100th anniversary of “International Women’s Day”, Representative Tammy Baldwin (D–Wisconsin) introduced H.J. Res. 47 to remove the congressionally imposed deadline for ratification of the ERA. The Subcommittee failed to vote on the resolution and it died in subcommittee when the 112th Congress ended in January 2013. 

On March 22, 2012, the 40th anniversary of the ERA’s congressional approval, Senator Benjamin L. Cardin (D–Maryland) introduced S.J. Res. 39—with slightly different wording from Representative Baldwin’s H.J. Res. 47. The Senate Committee failed to vote on the resolution and it died in committee when the 112th Congress ended in January 2013.

On February 24, 2013, the New Mexico House of Representatives adopted House Memorial No. 7 asking that the congressionally imposed deadline for ERA ratification be removed. This legislation was sent to the U.S. Senate on January 6, 2014.

In 2013, the Library of Congress (LOC) Congressional Research Service (CRS) issued a report stating that ratification deadlines are a “political question”. In U.S. constitutional law, the political question doctrine holds that a dispute assigned by the Constitution to the U.S. Congress, lies within the political, rather than the legal realm to solve.

ERA proponents claim that in the 1939 case of Coleman v. Miller, where the U.S. Supreme Court ruled that Congress has the final authority to determine whether a proposed constitutional amendment has lost vitality before being ratified by the required number of states, and whether ratifications are effective in light of attempts at subsequent withdrawal, the court’s decision gives Congress full discretion in setting conditions for the ratification process. ERA opponents caution supporters against a broad interpretation of Coleman v. Miller, which may have been politically influenced.

The “Three–State Strategy”

However, most recently, ERA Coalition has both led and brought renewed vigor to the movement by instituting what has become known as the “three–state strategy“. In 2013, ERA Coalition began to gain traction with this strategy through their coordination with U.S. Senators and Representatives not only to introduce legislation in both houses of Congress to remove the ratification deadline, but also in gaining legislative sponsors.

Those who espouse this “three–state strategy” were spurred by the unconventional 202–year–long ratification of the Constitution’s Twenty–seventh Amendment (or “Madison Amendment“) which became part of the Constitution in 1992 after pending before state legislatures since 1789. However, the “Madison Amendment” was not associated with a deadline, whereas the ERA is. On April 8, 2013 the CRS issued a report on the “three–state strategy,” entitled “The Proposed ERA: Contemporary Ratification Issues.”

In 2014, under the auspices of ERA Coalition and their partners, both the Virginia and Illinois state senates voted to ratify the ERA. That year, votes were blocked in both states’ House chambers. In the meantime, the ERA ratification movement continued and the resolution was introduced in 10 state legislatures.

Subsequent Congressional Action

Senator Robert Menendez (D–New Jersey) symbolically introduced the amendment at the end of the 111th Congress and supported it in the 112th Congress. At the start of the 112th Congress on January 6, 2011, Senator Menendez, along with representatives Carolyn Maloney (D–New York), Jerrold Nadler (D–New York) and Gwen Moore (D–Wisconsin), held a press conference advocating for the ERA’s adoption.  

The 113th Congress had a record number of women. On March 5, 2013, the ERA was reintroduced by Senator Menendez as S.J. Res. 10. In the House, Representative Maloney has sponsored it since the 105th Congress. Most recently, Representative Maloney sponsored the “New ERA” in August 2013, which adds an additional sentence to the original text: “Women shall have equal rights in the U.S. and every place subject to its jurisdiction.”  

Post–Deadline Ratifications and the “Three–State Strategy”

On March 22, 2017, Nevada became the first state in 40 years to ratify the ERA, and the first to ratify after the expiration of both deadlines. Followed by Illinois, state lawmakers ratified the ERA on May 30, 2018, in the House followed by the Senate on April 2018. An effort to ratify the ERA in Virginia in 2018 failed to reach either the House or Senate. On January 15, 2019 the Senate voted to approve but it was defeated in the House. At the time, the Republican Party held one–seat majorities in both houses.

The 2019 elections in Virginia gave the Democratic Party majority of both houses. Another vote was held and ERA ratification resolutions passed on January 15, 2020 and on January 27. The Virginia General Assembly is the oldest continuous law–making body in the North American continent, established on July 30, 1619. Virginia’s ratification would bring the total number to the requisite of three–fourths, or 38.

Proposed Removal of Ratification Deadline

On January 30, 2019, Representative Jackie Speier (D–California) introduced legislation H.J.Res. 38 to again attempt to remove the deadline for ratification. As of April 30, 2019, the resolution’s 188 co–sponsors included Tom Reed (R–New York) and Brian Fitzpatrick (R–Pennsylvania).

On November 8, 2019, Representative Speier re–introduced the bill as H.J.Res. 79 to again attempt to remove the deadline for ratification. The House passed this resolution on February 13, 2020, with even five Republicans joining in support, but the bill expired without Senate action.

Lawsuits Regarding Deadline Extension

In the context of the Coleman v. Miller precedent, counsel to a Nevada legislative committee concluded in the case of NOW v. Idaho in 2017 that it would be up to Congress to determine whether a sufficient number of states have ratified the ERA. In 2018, attorney general Mark Herring (D–Virginia) asserted that Congress could extend or remove the ratification deadline.

2020s

Support for the Equal Rights Amendment

Supreme Court Justice Ruth Bader Ginsburg would later voice her opinion that the best course of action for the ERA is to start over in order to forgo the issue of its expiration date. While at a discussion at Georgetown University in February 2020, Justice Ginsburg noted the challenge of counting the latecomers on the plus side, but disregarding states that changed their minds.

Lawsuits Regarding Post–Deadline Ratification

Alabama Lawsuit Opposing Ratification

On December 16, 2019, the states of Alabama, Louisiana and South Dakota sued to prevent further ratifying of the ERA. On January 6, 2020, the U.S. Department of Justice (DOJ) Office of Legal Counsel (OLC) official Steven Engel responded to the lawsuit by asserting that Congress had the constitutional authority to impose a deadline, and that it did not have the authority to retroactively extend the deadline once it had expired.

Massachusetts Lawsuit Supporting Ratification

On January 7, 2020, a complaint was filed by Equal Means Equal, The Yellow Roses and Katherine Weitbrecht in the U.S. District Court of Massachusetts against the Archivist of the U.S., the head and chief administrator of the National Archives and Records Administration (NARA), seeking a count of the three most recent ratifying states and a certification of the ERA as having become part of the U.S. Constitution. 

On August 6, 2020, Judge Denise Casper granted the Archivist’s motion to dismiss. On August 21, 2020, the plaintiffs appealed this decision to the U.S. Court of Appeals and on September 2, 2020, the plaintiffs asked the U.S. Supreme Court to hear this case. On June 29, 2021, the First Circuit affirmed the District Court’s decision.

2020 U.S. District Court Lawsuit Supporting Post–Deadline Ratification

On January 30, 2020, the attorneys general of Virginia, Illinois and Nevada filed a lawsuit to require the Archivist of the U.S., to recognize the complete and final adoption of the ERA as the Twenty–eighth Amendment to the U.S. Constitution.

On February 19, 2020, the States of Alabama, Louisiana, Nebraska, South Dakota and Tennessee moved to intervene in the case. On March 10, 2020, the Plaintiff States (Virginia, Illinois and Nevada) filed an opposition to the five states seeking to intervene. On May 7, 2020, the DOJ filed a motion to dismiss.

On June 12, 2020, the District Court granted the five Intervening states motion to intervene in the case. On March 5, 2021, federal judge Rudolph Contreras of the U.S. District Court ruled the ratification period for the ERA had expired and that the three states’ recent ratifications could not be counted. On May 3, 2021, the plaintiff states appealed this ruling to the U.S. Court of Appeals.

Proposed Removal of Ratification Deadline

At the beginning of the 117th Congress, resolution H.J.Res. 17 to remove the deadline for ratification was again introduced in both chambers, with bipartisan support. The House passed the resolution on March 17, 2021.

Actions in the State Legislatures

Ratifications

On March 22, 1972, the ERA was put for ratification by the state legislatures, with a seven–year deadline to acquire ratification by three–fourths (38). A majority of states ratified the proposed constitutional amendment within a year. Hawaii was the first state to ratify, on the very same day the amendment was approved by Congress. During 1972, a total of 22 state legislatures ratified the amendment and eight more joined in early 1973. Between 1974 and 1977, only five more states ratified the ERA. At the same time, the legislatures of five states that had previously ratified the ERA adopted new legislation to rescind those ratifications.

Equal Right Amendment Ratifications By State

Ratifications Revoked

Although Article V is not explicit as to whether a state may rescind or revoke a previous ratification of an amendment, and even though there is legal ambiguity over whether a state can revoke ratification of a federal constitutional amendment; nevertheless, five state legislatures (Idaho, Kentucky, Nebraska, Tennessee, and South Dakota) have voted to revoke their ERA ratifications. The first four rescinded before the original March 22, 1979 deadline.

On February 11, 2022, the West Virginia Senate passed a resolution rescinding West Virginia’s ratification of the ERA, but this resolution has not yet been adopted by the West Virginia House.

Sunsetting Ratifications

The South Dakota legislature revoked its ratification by voting to “sunset” it as of the original March 22, 1979 deadline. To “sunset” the ratification means it shall cease to have effect after a specific date, unless further legislative action is taken.

On March 19, 2021, North Dakota Legislature adopted to retroactively clarify that the state’s 1975 ratification of the ERA was valid only through “11:59 p.m. on March 22, 1979.” On January 11, 2021 the Minnesota Senate resolved to retroactively clarify that the state’s 1973 ratification of the ERA expired as of the originally–designated March 22, 1979 deadline.

Non–Ratifying States With One–House Approval

At various times, in six of the 12 non–ratifying states (South Carolina, Florida, Louisiana, Missouri, North Carolina and Oklahoma), one house of the legislature approved the ERA. However, both houses of a state’s legislature must be unanimous. Ratification resolutions have also been defeated in Arizona, Arkansas, and Mississippi.

Individual States Equal Rights Amendments and Provisions

Twenty–five states have adopted individual constitutions providing for equal rights under the law regardless of sex. Some of these mirror the language of the ERA, while others more resemble the Equal Protection Clause of the Fourteenth Amendment. The 1879 Constitution of California contains the earliest state equal rights provision on record. However, it limits the equal rights to “entering or pursuing a business, profession, vocation, or employment“.

Near the end of the 19th century two more states, Wyoming (1890) and Utah (1896), included equal rights provisions in their constitutions. These provisions were meant to be broad to ensure political and civil equality between women and men. Several states even wrote and adopted their own equal rights amendments during the 1970s and 1980s, while the ERA was before state legislatures and afterward. Some of these states’ equal rights amendments and equal rights provisions are:

• Alaska: No person is to be denied the enjoyment of any civil or political right because of race, color, creed, sex or national origin. Alaska Constitution, Article I, § 3 (1972)
• California: A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin. California Constitution, Article I, § 8 (1879)
• Colorado: Equality of rights under the law shall not be denied or abridged by the state of Colorado or any of its political subdivisions because of sex. Colorado Constitution, Article II, § 29 (1973)
• Connecticut: No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability. Connecticut Constitution, Article I, § 20 (1984)
• Delaware: Equality of rights under the law shall not be denied or abridged on account of sex. Delaware Constitution, Article I, § 21 (2019)
• Illinois: The equal protection of the laws shall not be denied or abridged on account of sex by the State or its units of local government and school districts. Illinois Constitution, Article I, § 18 (1970)
• Indiana: The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens. Indiana Constitution, Article I, § 23 (1851)
• Iowa: All men and women are, by nature, free and equal and have certain inalienable rights—among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness. Iowa Constitution, Article I, § 1 (1998)
• Maryland: Equality of rights under the law shall not be abridged or denied because of sex. Maryland Constitution, Declaration of Rights, Article 46 (1972)
• Massachusetts: Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin. Massachusetts Constitution, Part 1, Article 1 as amended by Article CVI by vote of the People, (1976)
• Montana: Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas. Montana Constitution, Article II, § 4 (1973)
• Oregon: Equality of rights under the law shall not be denied or abridged by the state of Oregon or by any political subdivision in this state on account of sex. Oregon Constitution, Article I, § 46 (2014)
• Utah: Both male and female citizens of this State (Utah) shall enjoy all civil, political and religious rights and privileges. Utah Constitution, Article IV, § 1 (1896)
• Virginia: That the right to be free from any governmental discrimination upon the basis of religious conviction, race, color, sex, or national origin shall not be abridged, except that the mere separation of the sexes shall not be considered discrimination. Va. Const. art. I, § 11
• Wyoming: Both male and female citizens of this state (Wyoming) shall equally enjoy all civil, political and religious rights and privileges. Wyoming Constitution, Articles I and VI (1890)

International Comparison

The Southern Legal Council found clauses officially declaring equal rights/non–discrimination on the basis of sex in the constitutions of 168 countries.

Source:
Equal Rights Amendment – From Wikipedia
https://en.wikipedia.org/wiki/Equal_Rights_Amendment