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Can the Equal Rights Amendment Rise from the Ashes?

Illinois is the latest state to ratify the Equal Rights Amendment. While this is certainly notable progress, it may not help the amendment become part of the U.S. Constitution. The Equal Rights Amendment, which was first presented to the states for ratification in 1972, contained a seven-year ratification deadline. Should supporters push to revive the amendment, they may face an uphill legal battle.

Can Equal Rights Amendment Rise From the Ashes?

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The Equal Rights Amendment

The Equal Rights Amendment, which provides that the rights guaranteed by the Constitution apply equally to all persons regardless of their sex, was first introduced in 1923. It specifically states:

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.

In March 1972, Congress overwhelmingly voted to adopt an Equal Rights Amendment to the U.S. Constitution. The amendment was then sent to the states, with ratification in 38 states required for adoption. The ERA also included a seven-year deadline for ratification. Although Congress extended the deadline to June 30, 1982, the ERA received only 35 of the necessary 38 state ratifications. In addition, five states rescinded their prior ratifications.

The Expired Ratification Deadline

Last month, Illinois became the 37th in the country to ratify the Equal Rights Amendment. Nevada also approved it last year, so one more state must still vote to approve it in order to reach the required 38. Supporters will then have to contend with the fact that the ratification deadline expired more than two decades ago.

While Constitutional amendments traditionally require ratification by three-quarters of the states, proponents of the ERA are advocating an alternative approach. The “three-state” approach is based on the argument that Congress possesses the authority both to repeal the original ratification time limit and its 1978 extension, and to restart the ratification clock at the current 35-state level, without a time limit. Under this approach, only one more ratification would be necessary any time in the future for the amendment to become effective.

As highlighted in a 2014 report by the Congressional Research Service, ERA supporters also argue that Article V of the Constitution gives Congress wide discretion over the amendment process. They also cite the 1992 ratification of the Twenty-Seventh “Madison” Amendment, which had been pending since 1789. Meanwhile, critics argue that the spirit and letter of the Constitution dictate that the ratification of the ERA needs to start at the beginning.

What’s Next?

Congress, and likely the Supreme Court, will play a key role in any attempted revival of the Equal Rights Amendment. As the National Constitution Center recently noted, “In any event, Congress would certainly play a critical role in any effort to revive the proposed Equal Rights Amendment, and possibly the Supreme Court if it is asked to settle the fate of the five states that voted to rescind their ratifications – as it had been asked in 1982.” 

The Supreme Court last addressed ratification deadlines in 1939. In Coleman v. Miller, the Court held that ratification disputes are a “question for the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment.” As Chief Justice Charles Evans Hughes explained, “Congress, in controlling the promulgation of the adoption of a constitutional amendment, has the final determination of the question whether, by lapse of time, its proposal of the amendment had lost its vitality before being adopted by the requisite number of legislatures.” In 1982, a lawsuit over the legality of the extended ratification deadline reached the Supreme Court. However, the justices dismissed the case as moot because the extension had just expired.

While the ERA has always been controversial, most Americans support it. A 2012 poll for Daily Kos/SEIU found that 91 percent of Americans believe men and women should have equal rights guaranteed under the Constitution. In addition, almost three-quarters mistakenly believe that it already contains such protections.

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