“Wait! What? The Equal Rights Amendment is dead. The ratification deadline passed more than 35 years ago!”
Hold on there, Sparky. Not so fast.
A little history. The first draft of the Equal Rights Amendment was crafted by suffragist Alice Paul in 1923, three years after women won the right to vote. It read:
“Women and men shall have equal rights throughout the United States and every place subject to its jurisdiction.”
It eventually morphed to its current version:
“Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
The amendment was introduced in EVERY SINGLE legislative session between 1923 and 1972, when it finally achieved the required 2/3 votes in both Houses of Congress. Then it was up to the states, 3/4 of which (38) would have to ratify for it to become part of the Constitution. The initial deadline for ratification was set as 1979, and when that year came and went without the required 38 ratifications, Congress extended to 1982. That deadline also came and went, with only 35 states ratifying.
“That’s great, Mrs. Whatsit. I could’ve read the Wikipedia entry my damn self. It’s been mostly dead for more than 35 years. In fact, Wikipedia indicates that, since then, five states have actually rescinded their ratifications. What’s your point?”
This is where it gets complicated. NOW (the National Organization for Women) sued the states that had rescinded. The US District court said the states could rescind, but it went to the Supreme Court, which vacated that decision because “the Amendment has failed of adoption no matter what the resolution of the legal issues presented here.” So technically, those five states are still on the record as ratifying, and the Constitution itself makes no provision for a state to change its mind.
Meanwhile, in 2017, Nevada became the 36th state to ratify.
Here’s how things stand now:
Because the Constitution itself doesn’t address this question directly, we’re required to go to the 1939 Supreme Court Coleman v. Miller decision, which was about an amendment that dealt with child labor laws. Congress never set a deadline for ratification, so according to SCOTUS, that means that the Child Labor Amendment is still technically pending before the states (although it’s not exactly urgent business these days because of the Fair Labor Standards Act).
In fact, ratification deadlines were not common until the Eighteenth Amendment. The Nineteenth Amendment didn’t have one, but every amendment since has.
ERA activists are arguing that the Coleman decision, combined with the lack of Constitutional process for rescinding ratification, means that if we were able to get 38 states to ratify, Congress could basically change its mind about the deadline, and voila, the ERA becomes Amendment 28.
In the intervening years, the ERA has been periodically reintroduced in Congress, and in 2011, Representative Tammy Baldwin (D-WI) introduced legislation to remove the ratification deadline. Senator Ben Cardin (D-MD) followed up with a Senate bill requesting the same the following year. Neither passed. And in 2013, the New Mexico State legislature passed a resolution requesting removal of the ratification deadline as well. It was entered into the Congressional record.
I should stress: This Coleman-based theory has not been tested in the courts. And if we were to get those last two states to ratify, it almost certainly would. The five states that rescinded would likely come back to try to yank their ratifications again, and no doubt someone would bring suit claiming that Congress couldn’t remove the ratification deadline after the fact. SCOTUS would almost certainly be a 4-4 tie, split on ideological lines, plus Anthony Kennedy, and who knows what he would do? Meanwhile, the current GOP Congress is not a particularly friendly place for women’s rights, so getting legislation passed in both Houses to remove the ratification deadline is not exactly assured.
All that being said, regardless of what happens this fall (and early signs seem to indicate not just a blue wave, but a blue tsunami), the GOP will not control both Houses of Congress forever. So the best thing those of us who care about equal rights for women can do is to be ready when that day comes.
What do I mean by “be ready”?
Get those last two states to ratify.
Who’s in play?
The deep South, of course, which is a lost cause in more ways than one. Utah, Arizona, Missouri, Oklahoma, Illinois, and Virginia.
Although pro-ERA activists are targeting ALL of the above, the most promising states for ratification appear to be Illinois and Virginia. (I still can’t figure out why Illinois hasn’t ratified yet. It’s a puzzlement.)
Virginia, while technically still the South, is an increasingly indigo purple state that hasn’t chosen a Republican in a state-wide election in almost a decade. After the state-wide blue wave that nearly flipped control of the House of Delegates, Virginia activists made another run at ERA ratification in this year’s legislative session, which, sadly, just went down to defeat.
But the fight continues. What can you do?
Glad you asked!
Ratify ERA has a great list of suggestions. Short version:
- Stay informed.
- Spread the word (like this blog post!).
- Lobby (particularly if you live in Illinois or Virginia or have family or friends there).
- Donate (of course).
Equal Means Equal has some solid ideas, too.
Image found here. (and do click the link and read the Politico article – it’s more terrific evidence for why we need to keep pushing on this topic, even in 2018)
Like what you read? Follow me on Twitter @MrsWhatsit1.