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June 30, 2018

ABA remains committed to ratification of ERA

The ABA commended Rep. Carolyn Maloney (D-N.Y.) for holding an ad hoc hearing June 6 focusing public attention on the continuing need to ratify the Equal Rights Amendment to the U.S. Constitution to ensure that “gender equality is recognized as a fundamental, irrevocable right protected by the highest law of the land.”

In a letter to Maloney submitted for inclusion in the hearing record, ABA Governmental Affairs Director Thomas M. Susman highlighted the ABA’s long advocacy for gender equality, which includes the association’s endorsement in 1974 of ERA ratification and adoption of policy in 2016 reaffirming that support and the need for ratification.

ABA support for gender equality also includes policies adopted in 1972 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 addition, the ABA over the years has advocated for passage of numerous laws to strengthen legal protections for women, including amendments to update Title VII of the Civil Rights Act, Title IX of the Education Amendments Act of 1972, the Pregnancy Discrimination Act, the Violence Against Women Act, the Lilly Ledbetter Act, and the yet-to-be-passed Paycheck Fairness Act.

Legislation alone, however is insufficient to permanently guarantee gender equality, Susman said, and ERA ratification would have three immediate effects:

  • gender equality would be established under the law as a fundamental and irrevocable tenet of society;
  • judges would be required to apply the highest standard of scrutiny when deciding cases involving sex discrimination; and
  • existing gender equity laws would be protected, and enforcement of these laws would be reinvigorated.

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 1972, Congress passed the ERA and sent it to the states for ratification. Even though the original deadline of seven years for state ratification was extended to 1982, only 35 states had ratified the amendment at that time. Recent votes for ERA ratification by Nevada and Illinois have brought the number to 37, but the expiration of the deadline and subsequent rescissions by some states raise questions about the future of the amendment.

The ABA has not taken a position on the legal complications or on current legislative approaches to overcome the problem.

Maloney, who has introduced an ERA resolution 11 times during her career, held the ad hoc hearing after House Judiciary Committee leaders did not respond to her request for a committee hearing. In her April 26 letter to committee Chairman Bob Goodlatte (R-Va.) and Ranking Member Jerrold Nadler (D-N.Y.), she pointed out that there has not been a congressional hearing on the ERA since 1984 even though the proposed amendment “is as relevant today as it has ever been.”

“Life for women in America has changed in many ways since the last time Congress seriously debated the ERA, and the issue of constitutional equality for women is well worth renewed consideration,” she wrote.


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