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February 01, 2020

Recent Developments on the ERA

The ABA has long fought for gender equality, but the ever-allusive Equal Rights Amendment (ERA) has consistently been out of reach. The proposed constitutional amendment would assure that gender equality is recognized as a fundamental, irrevocable right protected by the highest law of the land. The key section of the amendment states, “Equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex.”

A constitutional amendment must pass both the House and Senate by a two-thirds majority vote and be ratified by three-fourths, or 38 of the 50 states, before it becomes part of the Constitution. In addition to these requirements, Congress included a seven-year deadline for ratification in the 1972 authorizing resolution transmitting it to the states. Congress later extended that deadline to 1982. Even with the extension, however, only 35 states ratified the amendment on time. As a result, efforts to advance the ERA all but halted until this past decade, when state legislatures once again started considering ratification legislation. 

Recent efforts to ratify the ERA have paid off: Nevada ratified the ERA in 2017, Illinois followed suit in 2018, and Virginia became the 38th state to ratify the ERA in 2020. Despite the apparent victory, the fate of the ERA remains in limbo because of contention over the validity of these last three ratifications, and the legal effect of five states rescinding their ratifications following the expiration of the 1982 deadline.

To block the ERA from becoming part of our Constitution, Alabama, Louisiana, and South Dakota filed a federal lawsuit on December 16, 2019, to prevent the Archivist of the United States from accepting any new state ratifications. Following ratification by Virginia, but before any action on the lawsuit occurred, the Archivist, acting on the advice of the Department of Justice, refused to certify the ERA’s adoption as part of the U.S. Constitution.

In response to these developments, last month Virginia, Illinois, and Nevada filed suit to “compel the Archivist to carry out his statutory duty of recognizing the complete and final adoption of the Equal Rights Amendment.”

While the courts address these competing lawsuits, expiration of the ratification deadline and state rescissions of their ratifications remain obstacles to any further movement on the ERA. Congress has offered two legislative approaches to address these obstacles. One approach is mapped out in H.J. Res.79 (Speier, D-CA), which proposes removing the deadline entirely for the ratification of the ERA and was passed the House on February 13, 2020, by a vote of 232 to 183. S.J. Res 6 (Cardin, D-MD), an identical resolution in the Senate, has not received any action. The other legislative approach embodied in H.J. Res. 35 (Maloney, D-NY) and S.J. Res 15 (Menendez, D-NJ) would start the process of ratification anew. 

The ABA has long advocated for gender equality. In 1972, the ABA adopted policies supporting constitutional equality for women and condemning discriminatory hiring practices within the legal profession on the basis of gender, religion, race, or national origin. In 1974, the ABA specifically endorsed ratification of the ERA. At the time, there was broad bipartisan support, and ratification seemed imminent. Sadly, this optimism was ill-founded. In 2016, the ABA once again adopted policy reaffirming the need for, and its support of, ratification of the ERA. Such ratification would have three immediate effects:

1.      Gender equality would be established under the law as a fundamental and irrevocable tenet of society;

2.      Judges would be required to apply the highest standard of scrutiny when deciding cases involving sex discrimination; and

3.      Existing gender equity laws would be protected, and enforcement of these laws would be reinvigorated.

While the ABA has several policies supporting ratification, the ABA has no policy on the legal obstacles impeding final passage of the amendment or on current legislative approaches to overcome these problems. As such, the ABA has taken no position on these obstacles.

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