Equal Rights Amendment Primed for Senate Panel, Appeals Court

The latest congressional effort to validate the disputed Equal Rights Amendment as part of the US Constitution is set for a Senate committee hearing, as a federal appeals court prepares to rule on the ERA controversy any day.

The judiciary committee will hear testimony Tuesday morning on the proposed amendment. It’s been stuck in legal limbo since January 2020, when Virginia’s legislature became the 38th state to approve it, four decades after the deadline Congress set for ratification by states.

There’s disagreement even among ERA supporters as to whether Congress, the courts, or the executive branch could provide the best avenue for securing the amendment’s recognition and declaring the 1979 deadline void.

If ratified, the ERA would be the 28th Amendment to the Constitution and would provide an explicit guarantee of equal treatment under the law on the basis of sex, ensuring equal constitutional protection for women for the first time, according to ERA supporters. Its addition would likely compel states and federal agencies to revisit policies affecting women including those related to abortion, violence against women, and equal pay.

“In the face of these lingering legal questions and the debate surrounding them, it’s our understanding that Congress is in the best position” to resolve the dispute over the ERA’s validity, said Ting Ting Cheng, director of the ERA Project at Columbia Law School, which submitted written testimony to the Senate Judiciary Committee.

The committee is scheduled to hear from members of Congress, ERA supporters, and constitutional lawyers, as senators consider whether to advance a resolution (S.J. Res. 4) that would declare the amendment ratified. A companion resolution (H.J. Res. 25) is pending in the House.

Political, Legal Hurdles

After Virginia’s 2020 vote, ERA supporters including the attorneys general of Nevada and Illinois—where state lawmakers had voted to ratify the amendment in 2017 and 2018—sued to challenge the validity of the deadline set by Congress.

The federal district court in D.C. ruled against them in 2021, finding the states lacked standing to sue. In the decision, Judge Rudolph Contreras also remarked that the deadline for ERA ratification was valid and the final three state votes by Illinois, Nevada, and Virginia were too late to count.

The appeal by Illinois and Nevada is now pending before the US Court of Appeals for the D.C. Circuit, which heard arguments in September and is poised to issue a decision.

Senators on Tuesday will also consider Colleen J. Shogan, as the nominee to head the National Archives and Records Administration, a position whose duties include publishing and certifying amendments to the Constitution once they’ve been fully ratified.

Shogan said at her first Senate hearing last September that she would wait for Congress or the courts to resolve the ERA dispute before publishing it.

ERA supporters face obstacles in their effort to get the amendment recognized as part of the Constitution. In Congress, minimal support from Republicans makes it unlikely they have the votes to pass the ERA-affirming resolutions, and there are questions about how much legal power the resolutions would have if they passed.

The proposal pending in Congress is an “utterly meaningless resolution” that carries the same weight as a “national bird day proclamation,” said Wendy Murphy, a Boston attorney who has filed lawsuits seeking recognition of the ERA in court.

The efforts in Congress are meant to placate women voters and “provide political cover for Biden,” after his Justice Department took the same position opposing the pro-ERA litigation as Trump’s DOJ had taken, she said.

After Murphy’s federal litigation failed at the US Court of Appeals for the First Circuit, she helped coordinate a trio of lawsuits against the state attorneys general in Michigan, New York, and Rhode Island that all are awaiting decisions on the AGs’ motions to dismiss. The lawsuits ask courts to order the AGs to take steps to ensure their states’ laws and regulations comply with the Equal Rights Amendment, while also asking each court to affirm the ERA has been ratified.

“It’s the judicial branch who gets to decide what the Constitution means,” Murphy said.

Sending ‘Overdue Message’

Nonetheless, Senate Democrats—including Judiciary Chairman Dick Durbin (D-Ill.)—say Congress can and should advance the ERA.

“It is long past time to explicitly prohibit discrimination based on sex in our Constitution. It would send an important and overdue message to women and girls that they are equal under the law,” Durbin said in a statement last month when the resolutions were introduced. “Let’s come together on a bipartisan basis, repeal this deadline, and finally make the Equal Rights Amendment the law of the land by passing this joint resolution.”

The amendment process spelled out in the Constitution gives all power to Congress and the state legislatures, not to the judiciary or any executive agency, five law professors wrote in the Columbia ERA Project comment letter.

“Article V of the Constitution sets forth the procedures for amending the Constitution and specifically anticipates no role for courts or the Executive Branch in this process,” the professors wrote. “Authority to propose and ratify amendments lies fully in the political process, in Congress, state legislatures, and/or constitutional conventions.”

As for the vote count, Democrats passed a resolution designed to erase the ERA ratification deadline through the US House in March 2021, but Republicans have since taken the majority in that chamber and largely opposed the ERA vote last time.

In the Senate, Democrats likely would need 60 votes to overcome the filibuster but have only a handful of Republicans to join the 51 senators who caucus with the Democrats.

Douglas Johnson, who heads the National Right to Life’s anti-ERA project, also predicted the proposals in Congress won’t determine the outcome of the long-running ERA disputes.

“It’s just a political show,” he said. “The real action, of course, is in the D.C. Circuit, which could come down any time.”