The 45th Anniversary of Congress Passing the Ill-Fated Equal Rights Amendment

On March 22, 1972, the Equal Rights Amendment is passed by Congress and sent to the states for ratification. The ERA reads –

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.

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.

Equal Rights Amendment (ERA) was first drafted in 1923. It was viewed as the next step for guaranteeing equal rights to women following the passage of the 19th Amendment.

Previous versions of the ERA include:

(1) Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction. (Known as the Lucretia Mott Amendment; proposed to Congress, 1923-1942)

 

 

(2) Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. (Known as the Alice Paul Amendment; proposed to Congress 1943-1972)

Some version of the ERA was introduced in every session of Congress from 1923 to 1970. Nearly every time it was introduced, the ERA languished in committee. In 1970, during the 91st session of Congress, Congresswoman Martha Griffiths (a democrat from Michigan) filed a successful discharge petition, which allowed for the ERA to be considered by the whole House of Representatives. The ERA passed the House. Because the Senate attempted to add provisions exempting women from the draft, the ERA failed to pass the Senate that session.

After making some changes to the wording of the amendment, Congresswoman Griffiths re-introduced the ERA in the 92nd Congress. This version of the ERA was approved by the House on October 12, 1971. The Senate then passed the amendment on March 22, 1972. To read the committee report on why Congress believed the the ERA was necessary, follow this link.

Article V of the U.S. Constitution requires that 3/4 of the states ratify an amendment before it becomes part of the Constitution. In addition to this constitutional requirement, Congress added a seven-year ratification deadline to the 18th, 20th, and all subsequent constitutional amendments. In the case of the ERA, the deadline was included in the preamble to the authorizing resolution, rather than in the text of the amendment itself.

As originally proposed, the amendment would have expired in 1979 if not ratified by the requisite 38 states. Although the proposed ERA was eventually approved by 35 states, opposition brought the ratification process to a halt as the ratification deadline approached. As a result, in 1978, Congress voted to extend the deadline until June 30, 1982. Opponents of this extension argued this violated the spirit, if not the letter, of the amendment process laid out for the ERA. Supporters insisted that because the deadline was placed in the preamble to the authorizing legislation and not in the body of the Amendment itself, this extension was permissible in order to allow more time for state ratification.

Despite Congress’s extension of the deadline, no additional states ratified the ERA in advance of the 1982 deadline. In fact, the legislatures of 5 states passed resolutions rescinding their earlier ratifications, process referred to as rescission. The Supreme Court had agreed to hear cases on the rescission question, but the ERA expires before the cases could be heard, and, therefore the cases were dismissed as moot. As today’s date, these 15 states have not yet ratified the ERA: Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South Carolina, Utah, and Virginia. Note: that on March 20, 2017, the Nevada state assembly did vote in favor of ratifying the ERA.

Congressional proponents of the ERA have argued that Congress possess the authority to repeal the original ratification time limit, as well as the 1978 extension, in order to restart the current clock on ratification. They further argue that the prior ratification by 35 states should remain valid. Known as the “three state” strategy, this interpretation of the ERA ratification process would require only three additional states to ratify the amendment in order to amend the Constitution.

According to a Congressional Research Service report – the arguments in support and against this approach are –

In support of their arguments, ERA proponents claim that Article V of the Constitution gives Congress uniquely broad authority over the amendment process. They also point to Supreme Court decisions, Dillon v. Gloss and Coleman V. Miller, that they claim provide support for this assertion. In addition, they cite the example of the 27th Amendment, also known as the “Madison Amendment,” which was ratified in 1992, after having been pending for 203 years. This, they maintain, further supports their assertion that proposed amendments that do not include time The Proposed Equal Rights Amendment: Contemporary Ratification Issues Congressional Research Service limits within the body of the amendment text itself, remain viable and eligible for ratification indefinitely.

Opponents of further extension may argue that attempting to revive the amendment would be politically divisive, and that providing the proposed ERA with a “third bite of the apple” would be contrary to the spirit and perhaps the letter of Article V and the intentions of Congress in setting the earlier limits. They would arguably reject the example of the 27th Amendment, which, unlike the proposed ERA, never had a ratification time limit. Further, they might claim that efforts to revive the proposed Equal Rights Amendment ignore the possibility that state ratifications may have expired with the proposed ERA in 1982, and that proponents of the amendment do not address the issue of state rescission, which has never been specifically addressed by any U.S. court, but only dismissed by the Supreme Court because the cases accepted on appeal had become moot.

An alternative approach would be to start anew by introducing an identical but new Equal Rights Amendment, and then seeking the requisite state ratification.

 

 

 

 

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