The Equal Rights Amendment: Where It Stands Today

By Janice Podolski, ACE Health, Education, and Welfare Team Member

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

Starting with a brief history of the Equal Rights Amendment (ERA), on March 22, 1972, the U.S. House and Senate, each with a 2/3 vote, passed the following language.

“The following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes a apart of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years of its submission by the Congress:
“Section 1. Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex.
“Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
“Section 3. This amendment shall take effect two years after the date of ratification.”

Current legislation amending the ERA (H.J.Res.79 and S.J.Res.6) reads as follows.

Strike all that follows after the resolving clause and insert the following:
That notwithstanding any time limit contained in House Joint Resolution 208, 92nd Congress, as agreed to in the Senate on March 22, 1972, the article of amendment proposed to the States in that joint resolution shall be valid to all intents and purposes as part of the United States Constitution whenever ratified by the legislatures of three-fourths of the several States.

Recent Events

On January 6, 2020, the Office of Legal Counsel, which is part of the U.S. Department of Justice, issued an opinion asserting that Congress cannot remove the ERA’s ratification deadline without offering support from the language in Article V of the Constitution. This opinion also opposes the 1977 conclusion of a previous Office of Legal Counsel.

U.S. Archivist David Ferriero, based on the Jan. 6, 2020 opinion of the Office of Legal Counsel, said he would not certify the ERA and put it into effect, although, he had already certified Nevada’s and Illinois’ ratifications of the ERA.

On January 15, 2020, Virginia became the 38th state to ratify the ERA after flipping their state assembly blue.

On January 16, 2020, the House Committee of the Judiciary issued its Report on Removing the Deadline for the Ratification of the Equal Right Amendment [116-378]. The report addressed the history, continuing need for the ERA, and Congress’ authority to extend the ratification deadline of the ERA. It also found that to pass the proposed amendment to remove the ratification deadline from the preamble of the ERA the following conditions were true.

  • A simple majority vote not a supermajority 2/3-vote is sufficient.
  • The president’s signature is not required.
  • The Congress then in session when the 38th state ratifies the ERA should determine whether prior purported rescissions are valid. This finding is based on the 1978 Committee Report. (Note: The States that sought to rescind their ratifications were: Idaho, Kentucky, Nebraska, Tennessee, and South Dakota.)

The minority’s and the Justice Departments Procedural Objections are unavailing, meaning they achieve little and are ineffective.

Objections were from Office of Legal Counsel’s opinion that Congress now cannot remove the deadline for the ERA’s ratification, and the minority’s dissenting views that “the ERA would lead courts to strike down any restrictions on abortion including restrictions on State funding for abortion” and “would require sex integration of single-sex organizations, e.g. sororities and fraternities also Boy Scouts and Girl Scouts”.

The U.S. House passed H.J.Res. 79 on February 13, 2020 eliminating the deadline for the ratification of the Equal Rights Amendment, which prohibits discrimination based on sex. The amendment was proposed to the states in House Joint Resolution 208 of the 92nd Congress, as agreed to in the Senate on March 22, 1972. The amendment shall be part of the Constitution whenever ratified by the legislatures of three-fourths of the states.

The Vote was bipartisan—232 Yeas (227 Dems + 5 Reps) and 183 Nays (182 Reps + 1 Ind.). Not Voting were five Democrats and 10 Republicans.

Next Actions

S.J.Res. 6, which has language identical to H.J.Res.79, must be passed by the Senate. It currently has one sponsor and 46 co-sponsors. We need 51 Yeas, so we need to recruit at least four more senators.The biggest step after than is to get Senate Majority Leader Mitch McConnell (R-KY) to call it to the floor for a vote. However, after H.J.Res. 79 passed in the House, McConnell announced that it would be dead on arrival in the senate.

He also introduced two anti-abortion bills: Prohibition of all Abortions after 20 Weeks, sponsored by Senator Lindsey Graham (R-SC) and the Born-Alive Abortion Survivors Protection Act from Senator Ben Sasse (R-NE). Both need 60 votes to pass; Republicans hold 53 seats.

Also, three Attorneys General for Alabama, Louisiana, and South Dakota have asked a judge to prevent archivist Ferriero from certifying the ERA’s ratification.

 


ACE Health, Education, and Welfare Team Member Janice Podolski is a retired faculty member from the Department of Pharmacology at Rush University Medical Center in Chicago. She was a registered nurse for fifty years and has a master’s degree in Nursing and Ph.D. in Physiology. She volunteers at Loaves & Fishes Community Services and with PADS in DuPage County.