Wall Street Journal: Congress Revives Push for Equal Rights Amendment

Almost 50 years after Congress passed the Equal Rights Amendment, the fight is intensifying over whether lawmakers can lift the decades-past deadline for states to ratify it and add it to the Constitution.

Last month, a bipartisan group of lawmakers in both chambers introduced a resolution to eliminate the deadline for state ratification of the ERA, which would write into the Constitution that the federal and state governments can’t deny or abridge equality of rights based on sex. The ERA has been approved by 38 states, reaching the three-fourths threshold required for ratification, but three of those occurred decades past the original set of deadlines.

A resolution to eliminate the deadline passed last year in the Democratic-controlled House, but was never taken up in the Senate, then controlled by Republicans. Now, Democrats’ full control of government has reignited the push to culminate the long, messy fight over the effort to spell out women’s equality, and new votes could come as soon as this spring. Even if Congress passes the resolution to remove the deadline, many legal experts say it isn’t clear if that would remove the final obstacles to ratification.

“It’s important that we finally complete this task,” said Rep. Jackie Speier (D., Calif.), a co-sponsor of the resolution. “Without an explicit declaration of equality in the Constitution, women’s rights are always at risk.”

The push is separate from the Democrats’ Equality Act, which passed the House on Thursday. That legislation would amend existing civil-rights law, which bars discrimination based on race, religion, sex and other characteristics, to include sexual orientation and gender identity.

Although the ERA has bipartisan support in both chambers, it isn’t known if it will secure the 10 GOP votes it would need to advance in the Senate, where 60 votes are required. GOP Sens. Lisa Murkowski of Alaska and Susan Collins of Maine back it and supporters say they expect to secure more.

Supporters say the ERA would force governments to take steps to prevent discrimination and ensure equality between men and women, including better access to child care, preventing workplace discrimination due to pregnancy, and diminishing the gap in pay between men and women.

The ERA would “impose a mandate upon the federal government, and state governments too, to take affirmative measures to dismantle existing sex-based inequality,” said Katherine Franke, faculty director at the ERA Project at Columbia Law School’s Center for Gender and Sexuality Law. The ERA wouldn’t directly affect private businesses, she said, but it “may create a brand new norm that gets taken up by the private sector as a standard operating procedure around equality.”

Opponents worry that its ratification would make it easier to lift abortion restrictions, which could be struck down for applying only to women if the ERA were enacted.

The concern is that if “the ERA were part of the federal Constitution, challenges would be brought to any law or government policy that in any way disadvantages access to abortion,” said Douglas Johnson, senior policy adviser at National Right to Life, a group opposed to abortion rights.

Some Republicans have argued the ERA is no longer needed, given federal law’s prohibitions on sex discrimination, and the possibility for repercussions on other unforeseen areas related to sex. They also argue that Congress can’t simply move to lift the deadline at this point.

“When Congress passed the Equal Rights Amendment in 1972, the resolution gave the states a seven-year deadline to ratify it. They never did, and the deadline passed decades ago,” Sen. Mike Lee (R., Utah) said in a statement.

Some conservative groups have said ratification of the ERA could result in unintended consequences, such as whether jails, bathrooms and locker rooms in public buildings like schools could remain limited to one sex.

Other Republicans said the amendment is worth dealing with some legal wrinkles. “At times my Republican colleagues will say, ‘There’s no need for this.’ They don’t want to create some unintended consequences,” said Rep. Tom Reed (R., N.Y.), who represents Seneca Falls, where the first women’s rights convention was held in 1848. “I say, you know what, we can deal with those consequences. Why don’t we just make sure our Constitution is clear that men and women are equal?”

The amendment, first proposed in 1923 and approved by Congress in 1972 during the women’s liberation movement, has long been at the center of a complicated legal fight. Lawmakers initially gave states until 1979 to ratify the amendment, then later extended the deadline to 1982. The first 35 states ratified the amendment by 1977, but its progress later stalled as opposition built. Unlike with some other amendments, the deadline wasn’t written into its actual amendment text but instead added into the preamble.

Interest revived in recent years, fueled in part by the #MeToo movement. Nevada approved the ERA in 2017, Illinois in 2018 and Virginia in 2020 became the 38th state, reaching the three-fourths required to amend the Constitution. Democratic attorneys general for those three states sued the Trump administration last year, arguing that Congress has no constitutional power to impose a ratification deadline and that the National Archives should move forward and publish it as a new amendment. Also, several states have passed measures rescinding their ratification, adding to the legal murkiness.

 “It’s an open question whether an amendment can be revived,” said Kermit Roosevelt, a law professor at the University of Pennsylvania’s law school. “I don’t think it’s clear-cut at all that you can lift a deadline once it’s passed.”

Under the Trump administration, the Justice Department’s Office of Legal Counsel advised the National Archives that the deadline to ratify the ERA expired decades ago and therefore Virginia’s approval was legally meaningless. But President Biden supports the ERA and his administration’s position on the path to ratification isn’t yet known.

Lawmakers who support the measure believe one path to clearing up the deadline fight is to pass a measure removing it. Without congressional action to lift the deadline, many legal experts believe the ERA can’t be ratified, and even then courts will likely be asked to decide whether the ratification process can proceed.

There have been no new amendments to the Constitution since the 27th amendment, which says lawmakers’ salaries can’t be changed until after a House election. That amendment finally succeeded in 1992, more than 200 years after Congress proposed it in 1789. That amendment didn’t have any deadline for ratification.

By:  Kristina Peterson
Source: Wall Street Journal