The Equal Rights Amendment in 2019

By Adam W. Marshall, Esq.

As part of its 2030 Agenda for Sustainable Development, the United Nations has pledged to meet seventeen different Sustainable Development Goals. Goal Five calls for the achievement of gender equality and empowerment of all women and girls.

While the United States affords various gender equality protections, it cannot count itself among the 143 out of 195 countries the United Nations recognized as of 2014 that have guaranteed gender equality in their constitutions. There was an effort in the U.S. in the 1970’s to change this via constitutional amendment. The path of the resulting Equal Rights Amendment (ERA), declaring that “[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex,” is one that continues to be laid.

As brilliant as the United States Constitution is as a governing document, it does not address gender equality. It was not until the Nineteenth Amendment was ratified in 1920, over 130 years after the Constitution became effective, that women were even granted the right to vote. There have been other laws that, while not so exclusively directed to the issue of gender equality, have been used to address the issue.

The Constitution’s Fourteenth Amendment, which guarantees equal protection of laws to all persons, has been cited by the Supreme Court as authority for declaring some gender discrimination illegal.

Statutory and regulatory attempts to level the gender playing field have included the Equal Pay Act of 1963 (designed to eliminate the pay gap between men and women); the Civil Rights Act of 1964 (outlawing discrimination on the basis of, among other factors, sex); Title IX of the Education Amendments of 1972 (outlawing discrimination on the basis of sex in educational institutions that accept federal funds); and Executive Order 11375 (signed by President Johnson in 1967, banning discrimination on the basis of sex in hiring in both direct federal employment and employment by government contractors).

Despite these efforts, many would argue that gender equality has not been achieved, as is evidenced by, among other things, the fact that women continue to earn approximately $.80 for each $1.00 men earn.

To understand the quest to adopt the ERA, a brief overview of the amendment process may be helpful. The first step in amending the Constitution is for either: 1) a two-thirds supermajority of each house of Congress to approve a proposed amendment; or 2) a constitutional convention that has been called for by two-thirds of state legislatures to propose an amendment. The second step is for three-fourths of the states to approve the proposed amendment. Once the three-fourths of the states (which since 1959 has been thirty-eight states) have approved the amendment, the amendment is considered ratified and included in the Constitution.

A version of the ERA was first introduced in the United States Congress in 1921. There never existed the requisite two-thirds approval by the House of Representatives and the Senate until 1972 (ultimately over 80% of the members of each body voted in favor). It then went to the states for debate. The preamble of the proposed amendment set a deadline of March 22, 1979, for securing approval by the necessary thirty-eight states.

As the March 22, 1979 deadline approached, only thirty-five states had approved the amendment (and four of those states revoked their approvals before the deadline). Congress then, by a simple majority, passed a resolution extending the approval deadline to June 30, 1982. During the extension, not only did no additional states approve the ERA, but a fifth state rescinded its approval. To further complicate matters, two states took up the proposed amendment and approved it after the June 30, 1982 deadline extension (Nevada in 2017 and Illinois in 2018). In the end, thirty-seven states have voted to approve the ERA, but five of those have revoked their approvals.

There are many questions regarding the procedure associated with attempted ratification of the ERA. The amendment process is governed by Article V of the Constitution. Article V is brief, leaving many of the procedural details open to interpretation. Also, the Constitution has been successfully amended only twenty-seven times in the 230 years since its ratification, so there have been fewer opportunities for interpretive guidance from the courts on this subject than others.

Without clear precedential guidance, it remains to be seen whether Congress can extend a deadline for approval of a constitutional amendment, and if it can, whether it can do so by a simple majority rather than a two-thirds supermajority; whether a state can revoke its approval of a proposed amendment; whether a state’s approval after a deadline is effective; and whether the fact that the original deadline appears in the preamble to the amendment rather than in the text of the amendment renders the deadline itself inoperative.

Although little movement towards adoption of the ERA has occurred since the 1970s, there is reason to believe that it is gaining new momentum. In addition to the two recent state approvals, the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties held a hearing on April 30, 2019, to receive testimony about the ERA, the first such hearing in thirty-six years.

Among those testifying at that hearing were Rep. Carolyn Maloney (D-NY) and Rep. Jackie Speier (D-CA). Rep. Speier testified about the joint resolution she has introduced in the current session of Congress to eliminate the deadline to ratify the ERA (H.J. Res. 38); Rep. Maloney testified about her joint resolution proposing a new ERA (a resolution she has introduced during each session of Congress since 1992), effectively restarting the amendment process (H.J. Res. 35). Interestingly, the amendment included with H.J. Res. 35 keeps the wording of the original ERA but adds the following sentence: “Women shall have equal rights in the United States and every place subject to its jurisdiction.”

With this new activity, it will be important to monitor the following issues:

• It is unclear whether and when either joint resolution may be put up for a vote. There has been a resolution introduced in the Senate mirroring Rep. Speier’s proposal to eliminate the deadline for ratification of the original ERA, but it does not appear that any hearings have been scheduled in the Senate to discuss the proposal. Regardless of what may happen in Congress, nothing would prevent a state from independently approving the current ERA, bringing the number of states that approve the ERA to the necessary thirty-eight. That five have revoked approval and that the 36th, 37th and 38th states’ approvals will have come after the deadline would likely fuel challenges to ultimate ratification that would end in the Supreme Court.
• Opponents to the passage of the ERA have claimed that ratification would result in the eradication of restrictions on abortion. When this link was suggested by Rep. Mike Johnson (R-LA) during the recent hearing, Rep. Maloney stated, “The Equal Rights Amendment has absolutely nothing to do with abortion.” While the ERA has nothing to do with abortion in its explicit language, groups such as the National Organization for Women have opined that, “an ERA — properly interpreted — could negate the hundreds of laws that have been passed restricting access to abortion care and contraception” by casting abortion restrictions as a denial of a type of medical care to women only, which would presumably be contrary to the ERA. Regardless of whether this is accurate, it is sure to engage passions on each side, especially considering efforts by states this year to pass abortion bans designed to ultimately overturn Roe v. Wade.
• Also raised during the recent hearing is whether the ERA would apply to transgender individuals. When the ERA was first proposed by Congress, it unlikely that either proponents or opponents even contemplated whether protections against discrimination “on the basis of sex” would cover transgender individuals. The consensus of witnesses when asked was that the ERA indeed includes protection of transgender people. This would likely serve as an additional significant point of debate moving forward.

Although there have been some interesting recent developments, the fate of the ERA remains uncertain. Neither completion of the ratification process that began in 1972 nor approval of a new version of the ERA is guaranteed. And while passage of an ERA would not automatically and immediately cure all gender inequities, it would at least bring the United States closer to meeting UN Sustainable Development Goal Five.