The Proposed Equal Rights Amendment: Contemporary Ratification Issues

Description

The proposed Equal Rights Amendment to the U.S. Constitution (ERA), which declares that "equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex," was approved by Congress for ratification by the states in 1972. The proposal included a seven-year deadline for ratification. Between 1972 and 1977, 35 state legislatures, of the 38 required by the Constitution, voted to ratify the ERA. Despite a congressional extension of the deadline from 1979 to 1982, no additional states approved the amendment during the extended period, at which time the amendment was widely considered to have expired. Since 1982, Senators and Representatives who support the amendment have continued to introduce new versions of the ERA, generally referred to as "fresh start" amendments. In addition, some Members of Congress have also introduced resolutions designed to reopen ratification for the ERA as proposed in 1972, restarting the process where it ended in 1982. This was known as the "three-state strategy," for the number of additional ratifications then needed to complete the process, until Nevada and Illinois ratified the amendment in March 2017 and May 2018, respectively, becoming the 36th and 37th states to do so. The ERA supporters' intention here is to repeal or remove the deadlines set for the proposed ERA, reactivate support for the amendment, and complete the ratification process by gaining approval from the one additional state needed to meet the constitutional requirement, assuming the Nevada and Illinois ratifications are valid. As the 115th Congress convened, resolutions were introduced in the House of Representatives and the Senate that embraced both approaches. . Many ERA proponents claim that because the amendment did not include a ratification deadline within the amendment text, it remains potentially viable and eligible for ratification indefinitely. They maintain that Congress possesses the authority both to repeal the original 1979 ratification deadline and its 1982 extension, and to restart the ratification clock at the current 37-state level-including the Nevada and Illinois ratifications-with or without a future ratification deadline. In support, they assert that Article V of the Constitution gives Congress broad authority over the amendment process. They further cite the Supreme Court's decisions in Dillon v. Gloss and Coleman v. Miller in support of their position. They also note the precedent of the Twenty-Seventh "Madison" Amendment, which was ratified in 1992, 203 years after Congress proposed it to the states. Opponents of reopening the amendment process may argue that attempting to revive the ERA would be politically divisive, and that providing it with a "third bite of the apple" would be contrary to the spirit and perhaps the letter of Article V and Congress's earlier intentions. They might also reject the example of the Twenty-Seventh Amendment, which, unlike the proposed ERA, never had a ratification time limit. Further, they might claim that efforts to revive the ERA ignore the possibility that state ratifications may have expired with the 1982 deadline, and that amendment proponents fail to consider the issue of state rescission, which has never been specifically decided in any U.S. court. The "fresh start" approach provides an alternative means to revive the ERA. It consists of starting over by introducing a new amendment, similar or identical to, but distinct from, the original. A fresh start would avoid potential controversies associated with reopening the ratification process, but would face the stringent constitutional requirements of two-thirds support in both chambers of Congress and ratification by three-fourths of the states.

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