Ninety years after Congress passed the 19th amendment giving women the right to vote, a ghostly vestige continues to hover over Capitol Hill, kept alive by a few lonely Members and women’s rights advocates. 

It’s the ghost of the unratified Equal Rights Amendment, a nearly century-old proposal that would change the Constitution and affirm equality of men and women.

In the 1970s, the ERA fell short by just three states in the quest to make it the 27th amendment.

Debuting in both chambers in 1923, the gender equality proposal was re-introduced in each Congress until it finally passed the House and Senate in 1972. Members, however, placed a seven-year time limit on the ERA’s ratification, and when the deadline came and went — and was even given a three-year extension — only 35 of the 38 states needed to enact the amendment had ratified the ERA.

That moment in 1982 was a devastating defeat for women’s rights advocates who rallied on the Hill in support of the amendment, and the movement never fully recovered. 

Since then, an earnest push for the ERA rears its head in Congress every few years, but the proposal’s once-strong bipartisan support has waned. The lack of priority for the measure has crumbled its chances of passage, raising the question: Will it ever find a home in the Constitution? 

Scalia’s Comments

The Constitution doesn’t require women be given the same rights as men — at least that’s what Supreme Court Justice Antonin Scalia said in an interview with California Lawyer magazine in January. 

“Certainly the Constitution does not require discrimination on the basis of sex,” he said. “The only issue is whether it prohibits it. It doesn’t. … If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.”

His comments set off the most recent push for the ERA on the Hill.

Although many judges would disagree, citing the 14th amendment for equal protection of the sexes, Scalia’s comments ignited a roar of outrage from women’s rights advocates nationwide. But they also blindsided lawmakers, rekindling — if only briefly — the longtime ERA debate and bringing the issue to the forefront.

When Speaker John Boehner (R-Ohio) led the House in reading the Constitution on the first day of the new Congress, a few Members joined the National Organization for Women at the House Triangle to protest Scalia’s comments and support the ERA.

“Three-fourths of Americans assume that the Equal Rights Amendment is in our Constitution,” Sen. Bob Menendez (D-N.J.) said at the rally. “Many others believe that social progress has eclipsed the need for it. But Justice Scalia’s recent comments have made it crystal clear that until equal protection for women is explicitly spelled out in the Constitution, the courts might not guarantee it.”

In addition to the occasional Hill rallies, ERA supporters have reintroduced the proposal in every Congress since it failed in 1982, according to Roberta Francis, chairwoman of the ERA Task Force at the National Council of Women’s Organizations.

Stepping in for longtime ERA supporter and late Sen. Edward Kennedy (D-Mass.), Menendez has taken up the torch in fighting to pass the ERA along with his House counterpart, Rep. Carolyn Maloney. The New York Democrat has proposed an ERA bill in seven of her nine completed terms in hopes of repassing the amendment without a time limit for state ratification. 

Seeing her bill get caught in committee doesn’t discourage her. “Big issues take a long time to gain momentum,” Maloney said. “I will continue to push this one for as long as it takes.”

Maloney thinks the grass-roots movement for the ERA is still strong, citing a recent New York City community board that unanimously passed a resolution in support of the ERA last week. She and Menendez are expected to reintroduce another ERA bill in March during women’s history month.

Likewise, the push for the ERA continues in Missouri, Illinois, Virginia, Florida, Oklahoma and Arizona, where women’s rights groups are lobbying their legislatures to ratify the original amendment despite the passed deadline. 

Jane Mansbridge, ERA expert and professor at the Harvard University Kennedy School of Government, said that if and when three additional states ratify the ERA, it would “put considerable pressure on Congress” to repass the amendment. 

Politics and Priorities

For all the bravado of Menendez, Maloney and feminists on the Hill who hope for an ERA revival, Congressional passage of the bill is highly unlikely in this political atmosphere.

Ever since the GOP dropped the ERA from its platform in the 1980s, the issue has lacked Republican support. During the 110th Congress, fewer than 10 of the 204 co-sponsors of the House ERA bill were Republicans. Last Congress, only four of 84 were, and no Republican Senators signed on to ERA bills in the past four years.

Social conservative and religious groups contend that the ERA would threaten privacy rights and traditional family roles, send women into combat and force states to fund abortions. 

Other conservatives claim the amendment is irrelevant, that American society has already achieved equality. 

“The biggest obstacle for the ERA isn’t a lack of support for the principle of equality,” said Rep. Judy Biggert (R-Ill.), a former lead sponsor of the bill. “On that, almost all lawmakers agree. Many of those on the other side of this issue simply feel that a constitutional amendment is no longer necessary when so many legal protections already exist against gender discrimination.”

With a GOP-controlled House, advocates won’t hold their breath when the ERA bill is proposed this session.

“We’re going to publicize it loud and clear,” said NOW President Terry O’Neill. “Our leadership will call Representatives in Congress and say, ‘Support this.’ We’ll be there and work for it, but I don’t have any illusion about whether this can pass the House.” 

“We joke that we’re on vacation” with Republicans in power, NOW press secretary Mai Shiozaki said. 

But Republicans aren’t the only ones shying away from the issue. In the Democratic-controlled 111th Congress, the ERA bill went virtually nowhere and the proposals sat in committees.

Still, Francis thinks the ERA eventually will join the Constitution. There may come a day, she said, when an unfair court case, a sexist law or a grievance against women will push gender inequality to the forefront of the nation’s attention and remind people about the “need for an ERA.”

“There is a reasonable chance that the ERA will eventually be repassed by Congress, but not until the economic crisis is over and economic issues stop dominating domestic politics,” Mansbridge said. 

Leading sponsors agree that the ERA won’t be passed in the next few years, but that doesn’t mean the issue will disappear.

“Realistically, it’s probably not going to come up for a vote soon,” Biggert acknowledged. “That said, this issue won’t be resolved until discrimination is no longer a fact of life in America, and we aren’t there yet.”