Wall Street Journal: Equal Rights Amendment Could Soon Be Back in Congress

Likelihood has risen that Virginia will ratify measure, opening fresh round of legal and political hurdles

The last amendment to the U.S. Constitution took 203 years to ratify.

A Supreme Court ruling in June has revived hopes—and controversy—over whether another such change, the Equal Rights Amendment, could be ratified far sooner. Congress could face the issue, and a host of complicated legal questions, early next year.

Already, the ERA, which says “equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex,” has surfaced on the 2020 campaign trail. It featured in the debate exchange last week between Sen. Kamala Harris (D., Calif.) and former Vice President Joe Biden over the federal government’s role in establishing and enforcing equality.

“That’s why we have the Voting Rights Act and the Civil Rights Act,” Ms. Harris said as she pressed Mr. Biden on his opposition to federally ordered school busing during the 1970s. “That’s why we need to pass the ERA, because there are moments in history where states fail to preserve the civil rights of all people,” she said.

“I’ve supported the ERA from the very beginning,” Mr. Biden shot back.

An amendment mandating equal rights for both men and women, first proposed in 1923 and passed by Congress in 1972, has so far been ratified by 37 states—just one state short of the three-fourths required under the Constitution.

Longest-Pending Amendments

These are the 10 constitutional amendments that took the most time to ratify after being introduced:

    27th (congressional salaries): 74,003 days

    22nd (presidential tenure): 1,439 days

    16th (income tax): 1,302 days

    1st through 10th (Bill of Rights): 811 days

    14th (guaranteed rights): 757 days

    25th (replacing the president): 584 days

    24th (abolition of poll taxes): 514 days

    19th (women’s suffrage): 441 days

    18th (Prohibition): 394 days

    15th (right to vote): 342 days

Ratification from a 38th state now appears more likely after the high court upheld a Virginia legislative map replacing a gerrymander drawn by the Republican-controlled legislature that was found to discriminate against black voters. Because African-Americans lean Democratic, the new map, which was used for the June primary election, is expected to increase Democrats’ odds in November of shifting the state House of Delegates—where Republicans currently hold a 51-49 majority—in their favor. Earlier this year, an effort to ratify the amendment failed by a single vote in that chamber.

Action in Virginia would thrust the issue back on Congress, where lawmakers would consider whether to extend or remove the ratification deadline. When the ERA was passed by both the House and Senate in 1972, Congress gave the states a 1979 deadline, later extended to 1982, to ratify it. Legislation from Rep. Jackie Speier (D., Calif.) eliminating the deadline is expected to pass the Democratic-led House easily. But bipartisan legislation from Sens. Ben Cardin (D., Md.) and Lisa Murkowski (R., Alaska) likely faces a tougher fight in the GOP-led Senate.

“Many people say, ‘Let’s wait ’til you have the 38th state and then we’ll deal with you,’” said Carol Jenkins, co-president of the ERA Coalition. “That time will be coming soon.”

The Senate bill so far has support from two Republicans: Ms. Murkowski and Sen. Susan Collins of Maine. Its backers hope election-year pressure could help it gather more support, particularly from vulnerable GOP senators running for re-election next year in swing states.

Supporters of the measure say its ratification would serve both symbolic and practical purposes.

“It would be particularly appropriate because this is the 100th anniversary of the Senate approving the 19th amendment, which affirmed the right of women to vote,” Ms. Collins said. “Having the Equal Rights Amendment deadline removed would be symbolically a great thing for us to do this year.”

The ERA’s proponents also believe that having gender equality spelled out in the Constitution could change the standard used by the Supreme Court in sex discrimination cases, and affect legal rulings on issues including the pay gap between men and women and workplace accommodations for pregnant women, among others.

The amendment’s modern-day opponents say it isn’t needed, citing the 14th amendment that guarantees all citizens the equal protection of the laws. They also focus on potential ramifications for abortion legislation, including measures restricting federal funds for abortions, which they worry could be struck down under the ERA because only women can get pregnant.

“I don’t personally know of a single member of Congress that disagrees with the idea that women ought to be protected from discrimination solely on the basis of their sex,” said Rep. Mike Johnson of Louisiana, the top Republican on the panel of the House Judiciary Committee that held a hearing on the amendment in late April. But, he said, the ERA could lead to an “attack on meaningful and reasonable abortion regulations across the country.”

Supporters of the ERA say it isn’t clear exactly how or whether it would affect abortion rights. While they acknowledge the amendment could impact court cases on some restrictions, they dispute that its passage would automatically undermine all such limits.

Lawmakers and constitutional scholars also debate whether Congress can take action now to remove a deadline that has already passed.

Although 35 states ratified the amendment by 1977, its progress later stalled as opposition built. Interest in the measure revived after a separate effort to ratify the 27th amendment—which says lawmakers’ salaries can’t be changed until after a House election—succeeded in 1992, more than 200 years after Congress proposed it in 1789. That amendment didn’t have any deadline for ratification.

The ERA’s supporters note that its original deadline was in the preamble, rather than the body of the amendment itself. It was ratified by Nevada in 2017 and Illinois in 2018.

“A congressionally specified time period for ratification—whether in the text or preamble—signals to States that time is of the essence,” Elizabeth Price Foley, a professor at Florida International University College of Law, said in testimony prepared for the House hearing. If Congress, through later legislation, “attempts to extend a ratification deadline, the extension should be of no legal effect.”

Five of the original 35 states that ratified the amendment have since passed resolutions rescinding their earlier approvals. Court cases over the legality of the rescissions came before the Supreme Court but were dismissed because they had reached the high court after the June 1982 ratification deadline had passed.

By:  Kristina Peterson
Source: Wall Street Journal