Bloomberg Law
March 3, 2023, 10:15 AM

Equal Rights Amendment Backers’ 100-Year Fight Turns to Congress

Chris Marr
Chris Marr
Staff Correspondent

The Equal Rights Amendment has faced a century of setbacks since its first introduction in 1923, most recently this week’s court ruling that has ERA backers largely shifting their focus to pressing Congress to validate the measure.

In the Feb. 28 decision, the US Court of Appeals for the District of Columbia Circuit rejected calls to order the ERA published as the 28th Amendment, finding the 1979 deadline that Congress set for states to ratify it might mean the amendment’s window for passage has closed. But the court didn’t entirely rule out the ERA backers’ argument that Congress lacks authority to set such deadlines.

The ruling adds to a string of disappointments in court and decades of doubt about the amendment’s future. But some of the ERA’s most vocal supporters say it’s still ripe to be recognized as part of the Constitution, guaranteeing US women equal treatment under the law on a national level for the first time.

“We are at a tipping point. The future of our democracy is at stake. The ERA holds the promise of a brighter future for us all,” said Thursday Williams, a college student and ERA Coalition board member, in Feb. 28 testimony before the Senate Judiciary Committee.

The best option for now is likely through Congress and certainly not through pursuing an appeal to the US Supreme Court, considering the conservative leanings of many current justices, said Katherine Franke, a law professor at Columbia University and director of its Center for Gender and Sexuality Law.

“There’s no good outcome before this Supreme Court,” she said.

Introduced in 1923

The language of the ERA states “equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex.” It would give Congress authority to pass laws enforcing this mandate, and could prompt government agencies to revisit policies related to abortion, equal pay, violence against women, and pregnancy discrimination.

An earlier version was first introduced in Congress in 1923, drafted by women’s suffrage activist Alice Paul after she helped win ratification of women’s right to vote via the 19th Amendment in 1920.

The measure finally passed through Congress and went to the states in 1972, but with a seven-year deadline. Thirty-five states approved it by 1979, three short of the three-fourths threshold the Constitution requires.

The Equal Rights Amendment, in some supporters’ view, was fully ratified as the 28th Amendment when the Virginia legislature voted to approve it in January 2020, giving it the required approvals by 38 states.

But the Virginia vote, like those in Nevada and Illinois, came four decades after Congress’ 1979 deadline. Efforts to void that deadline have been rebuffed by courts, the Justice Department, and the US archivist, whose job includes publishing constitutional amendments once they’re ratified.

Now advocates are calling on Congress to declare the deadline void and the ERA ratified, even if ERA supporters in Congress have to get creative.

“There are a bunch of open questions” about Congress’ power and the procedures it can follow in the amendment process, Franke said.

Among those is whether Senate Democrats could pass a resolution by a simple majority to affirm that the ERA is ratified because 38 states have approved it, rather than needing a supermajority vote that ERA backers don’t have in the current Senate, she said.

Some contend the deadline is meaningless because Article V of the Constitution doesn’t specifically say Congress can set time limits on amendments. Others, including the Justice Department’s Office of Legal Counsel in a 2020 memo and a D.C. federal district court ruling from March 2021, say the deadline is binding and prevents the ERA from being ratified.

A three-judge panel from the D.C. Circuit said the pro-ERA attorneys general from Illinois and Nevada fell short of proving a “clear and indisputable” right to have the amendment published because the 1979 deadline is disputed and two prior Supreme Court decisions provide at least some support for Congress’ power to set ratification deadlines.

Franke said the court stopped well short of the 2020 Justice Department memo by not declaring the 1979 deadline valid nor deeming the ERA beyond hope of ratification.

Although likely a major turning point in the strategy for ERA advocates, the D.C. Circuit decision was “at least not a total loss,” Franke said.

“It didn’t spell the death of the ERA at all,” she said. “It merely dismissed that lawsuit and sort of kicks the question back to the Congress.”

Douglas Johnson, who heads the National Right to Life’s anti-ERA project, disagreed. He called the D.C. Circuit decision a “hammer blow” to ERA supporters that reinforces the amendment’s status as dead.

Franke, through Columbia’s ERA Project, is among those arguing the ERA could and should be used not just to get courts to apply a “strict scrutiny” standard to potentially discriminatory laws, but to insist that federal and state policies advance “substantive equality.” This approach would protect historically disadvantaged groups such as Black women from disparate outcomes in the way laws are applied, even when the law isn’t discriminatory on its face, according to a February 2023 policy brief.

House, Senate Resolutions

Two resolutions pending in Congress (S.J. Res. 4 and H.J. Res. 25) would declare the Equal Rights Amendment fully ratified and proclaim the deadline void. But there’s a dispute about whether Congress has the power to retroactively erase its deadline, as well as whether it would need a simple-majority vote or supermajority.

The US House passed a Democrat-backed resolution in March 2021 by simple majority that aimed to erase the ERA’s deadline, but the Senate didn’t vote on it.

The Senate Judiciary Committee heard testimony Feb. 28 on the ERA and the resolutions from supporters, opponents, and constitutional lawyers, as some in the audience simultaneously read the D.C. Circuit decision that was released just as the hearing began.

But the ERA resolutions don’t have the votes to pass the House or Senate, and they would be challenged in court even if they did, Johnson said.

Democrats tried to pass the ERA again in 1983 after its deadline expired, but they failed in a House floor vote largely because of concerns about how abortion rights advocates would use it to challenge anti-abortion laws, he said.

Abortion remains a key reason for many Republicans’ opposition today, he added, noting that ERA supporters have become more vocal about using the amendment to bolster abortion rights following the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Org. striking down the constitutional right to abortion.

That concern was reinforced by a 1999 decision from the New Mexico Supreme Court that found an Equal Rights Amendment in the state constitution barred a state law restricting the use of Medicaid funds for abortion, as the court deemed the funding restriction to discriminate against women.

Continued Battle

Illinois Attorney General Kwame Raoul and Nevada Attorney General Aaron Ford said it’s important that the D.C. Circuit didn’t declare the ratification deadline to be valid nor say Congress is powerless to declare the ERA ratified.

“The court’s opinion makes it all the more important for the federal government and Congress to act—today—to ensure that the Amendment is acknowledged as the 28th Amendment to the Constitution,” the AGs said in a joint statement Feb. 28. “We will continue to fight for a published Constitution that explicitly prohibits all forms of discrimination, including discrimination based on sex.”

The AGs didn’t say whether they will appeal the decision. The Nevada AG is reviewing his options, spokesman John Sadler said.

In a separate group of pending lawsuits, the Elizabeth Cady Stanton Trust sued the AGs of Michigan, New York, and Rhode Island last year seeking to force them to bring their state policies into compliance with the ERA.

While the strategy is an outlier to the efforts of most pro-ERA groups, the cases could lead to state courts recognizing the ERA as ratified and eventually prompt the Supreme Court to resolve a state/federal court split, said Boston attorney Wendy Murphy, who helped coordinate the lawsuits.

The D.C. Circuit decision “is by no means the final word,” Murphy said. “It doesn’t have jurisdiction over the rest of the country.”

To contact the reporter on this story: Chris Marr in Atlanta at cmarr@bloombergindustry.com

To contact the editors responsible for this story: Rebekah Mintzer at rmintzer@bloombergindustry.com; Laura D. Francis at lfrancis@bloomberglaw.com