House action on Equal Rights Amendment sets up legal fights

The House this week will seek to give the Equal Rights Amendment some momentum, but political and legal hurdles remain before it could amend the Constitution.

Carolyn Maloney, Jackie Speier are posing for a picture
Reps. Jackie Speier, D-Calif., right, and Carolyn Maloney, D-N.Y., attend a news conference at the House Triangle on the need to ratify the Equal Rights Amendment on June 6, 2018. (Tom Williams/CQ Roll Call)
Posted February 12, 2020 at 5:30am

The House will attempt to revive the Equal Rights Amendment later this week, with a vote to remove the 1982 deadline for state ratification and reopen the process for amending the Constitution to prohibit discrimination based on sex. But removing the deadline won’t clear a path for the 28th Amendment. Hurdles, including the Republican-led Senate, a lawsuit from GOP state attorneys general and opposition from the current Justice Department, remain.

After languishing for decades without much action, the constitutional amendment and hot-button cultural wedge issue from the 1970s is back. The ERA promises equal rights to women and reads, in part, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

Originally drafted by suffragist Alice Paul, the ERA was proposed every Congress beginning in 1923 but continually died in committee. In 1970, Michigan Democrat Martha Griffiths forced a House floor vote with a discharge petition. After some alterations, the House passed her amendment in 1971, and the Senate followed suit in 1972, both with the two-thirds majority needed.

Congressional support of the ERA in the early 1970s was widespread and bipartisan. It passed the House in a 354-24 vote and the Senate by a 84-8 vote, bipartisan tallies for such an issue that are difficult to imagine in the modern political climate.

The amendment then needed approval of three-fourths of the state legislatures before 1979, a deadline set by Congress. More than half of the states ratified the amendment within the first year, and 35 states ratified it before 1977. Congress then extended the deadline for another three years to 1982, but no additional states voted to ratify, leaving the amendment three state legislatures short of the three-fourths requirement.

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The ERA has gained new life in recent years. In 2017, Nevada became the 36th state to ratify and Illinois followed in 2018.

Last month, Virginia became the 38th state to ratify the ERA — ostensibly reaching the required three-fourths threshold for the 28th Amendment to the Constitution. But the 1982 deadline has long since passed.

The House Democratic majority is expected to approve a resolution later this week that would remove the deadline for state ratification.

The resolution states “That notwithstanding any time limit contained in House Joint Resolution 208, 92nd Congress, as agreed to in the Senate on March 22, 1972, the article of amendment proposed to the States in that joint resolution shall be valid to all intents and purposes as part of the United States Constitution whenever ratified by the legislatures of three-fourths of the several States.”

Democrats say that the ERA would finally enshrine equal rights for women in the Constitution and that Congress has the constitutional authority to retroactively remove the ratification deadline so the amendment can now be added to the Constitution.

During the November markup of the resolution in the House Judiciary Committee, Chairman Jerrold Nadler recognized that legal precedent has prohibited most cases of discrimination on the basis of sex under the 14th Amendment. But he said the ERA was necessary to prevent these protections from being rolled back by future executive actions and court rulings. The committee approved the resolution on a 21-11 party line vote on Nov. 13.

House Judiciary Vice Chairwoman Mary Gay Scanlon said Tuesday that the laws on the books aimed at protecting women are not a substitute for constitutional protections.

“Laws change, as do the people interpreting them, but we are a nation governed by our Constitution,” the Pennsylvania Democrat said. “The rights given to us through the Constitution are unalienable, and the protections it provides us with are invaluable.”

During President Donald Trump’s State of the Union address last week, many female Democrats in the House dressed in white to symbolize the 100-year anniversary of the suffragist movement that gave women the right to vote. Many sported green ERA pins that stood out in the sea of white.

Republicans opposed to the ERA are raising concerns both about the process Democrats are pursuing to enact the amendment and the resulting consequences they foresee.

Arizona Rep. Debbie Lesko called the resolution’s language to require a majority vote, rather than the usual two-thirds votes needed for a constitutional amendment, “a sneaky act.”

Georgia Rep. Doug Collins, the outgoing Judiciary ranking member, called the Democrats’ effort a “defiance of historical reality.”

“Democrats are trying to revive the failed attempt at a constitutional amendment,” he said Monday. “Congress lacks the power to do so.”

Multiple Republicans have cited recent comments from Supreme Court Justice Ruth Bader Ginsburg to bolster their argument against eliminating the 1982 deadline.

At an event at Georgetown University’s law school, moderator and federal appellate judge Margaret McKeown asked Ginsburg about the effort to revive the ERA.

“I would like to see a new beginning” for ERA ratification, the justice told McKeown.

“There’s too much controversy about latecomers,” Ginsburg added. “Plus, a number of states have withdrawn their ratification. So if you count a latecomer on the plus side, how can you disregard states that said, ‘We’ve changed our minds?’”

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The ERA is also indivisible from the issue of abortion rights, with Republicans warning that ratification would lead to expanded use of abortion and rollbacks of anti-abortion legislation on the state level.

Conservatives argue that because abortions are exclusive to women, any restrictions on the procedure could be deemed unconstitutional under the ERA.

“If ratified, the ERA would be used by pro-abortion groups to undo pro-life legislation and lead to more abortions and taxpayer funding of abortions,” Lesko warned Tuesday.

In the Senate, Alaska Republican Lisa Murkowski has led the effort to remove the deadline with Maryland Democrat Benjamin L. Cardin. The joint resolution would not require the signature of the president.

Legal challenges

In January, the Justice Department’s Office of Legal Counsel released an opinion concluding that Virginia’s efforts to ratify the ERA came too late.

The office said the entire legislative process for approval must be restarted from scratch for a proposed constitutional amendment to be legally binding. The conclusion is only advisory and not final.

The National Archives and Records Administration, which has to certify the amendment, said in a press release it would comply with the OLC’s opinion, save for a court order. The matter could ultimately be settled by federal courts.

In December, three states — South Dakota, Alabama and Louisiana — filed a federal lawsuit seeking to block the amendment. They argue that five states have attempted to reverse their ratification, a process called rescission. Legal questions remain about the status of those actions.

Supporters of the ERA point out that the Constitution does not explicitly say that rescission is allowed. The Justice Department didn’t weigh in on this question, saying, “It is unnecessary for us to consider whether the earlier ratifications of the ERA by five state legislatures were validly rescinded.”

Constitutional amendments do not typically have ratification deadlines. In 1992, the 27th amendment was ratified, prohibiting changes in lawmaker pay from going into effect until after an election has taken place. It had begun as the “Madison Amendment,” approved by Congress in 1789 and still considered viable when taken up in the 1980s.

Supporters of the ERA point to the 200-year window provided for the 27th amendment to bolster their argument that the original ERA should still be viable since Congress could cancel the deadlines in the amendment — particularly since the deadline had not been included in the amendment text.

Daniel Peake, Caroline Tanner and David Jordan contributed to this report.