The Equal Rights Amendment in 2020: An Update

By Adam W. Marshall, Esq.

With the declaration that an equal world is an enabled world, the focus of this year’s International Women’s Day is equality. When we last examined the status of the proposed Equal Rights Amendment (ERA) to the United States Constitution in June 2019, we noted renewed interest in moving forward with the ratification process:

· After little official activity since the deadline for approval of the ERA came and went over three decades ago, two additional state legislatures approved the Amendment, Nevada in 2017 and Illinois in 2018, bringing the total number to thirty-seven.

· Resolutions were introduced in the United States House of Representatives, alternatively proposing to remove the deadline to ratify the ERA and offering a new ERA that would require the amendment process to begin again.

· The House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties received formal testimony regarding the ERA, the first time in thirty-six years that such testimony was given.

Since June 2019, there have been a few significant developments:

· On January 27, 2020, after votes in both of its legislative houses, Virginia became the thirty-eighth state to approve the ERA.

· The full House on February 13, 2020 passed a resolution removing the deadline to ratify the ERA.

Unfortunately for supporters of the ERA, these positive developments do not provide much clarity.

With Virginia’s passage, thirty-eight states have now said yes to the ERA. Although thirty-eight states represent the three-fourths necessary to ratify a constitutional amendment, five of these thirty-eight states rescinded their approvals before the June 30, 1982 deadline. It is unclear what effect if any these rescissions may have.

As noted in our last discussion of the ERA, the relatively small number of amendments to the Constitution has presented few opportunities for the Supreme Court of the United States to address issues related to constitutional amendments. Indeed, there has been no opportunity for the Court to address the effect of a state’s rescission of its approval of a proposed amendment that occurs before the National Archives officially amends the Constitution.

There are likewise few examples of individual state rescissions in the history of constitutional amendments to analyze for guidance. During the ratification process for the Fourteenth Amendment, several states did rescind their approvals. However, enough subsequent states accepted the Amendment that the requisite number of states had approved it prior to certification by the Secretary of State and acceptance by the National Archives.

Another issue that remains uncertain is the effect of a congressional revocation of the ratification deadline. The original resolution proposing the ERA required approval within seven years of the proposal, or by March 22, 1979. Before the original deadline expired, it was extended to June 30, 1982 by a resolution passed with simple majorities in both the House and the United States Senate. The recent vote by the House to remove the deadline altogether is an attempt to legitimize the post-deadline approvals by Illinois, Nevada and Virginia to get to the necessary thirty-eight states. This of course ignores the potential effect of the rescinded approvals previously discussed.

Deadlines have been included in several successful constitutional amendments. There have also been amendments ratified without deadlines. One extreme example of the latter is the Twenty-seventh Amendment regulating congressional pay that was proposed in 1789 and ratified over 200 years later in 1992.

It is unclear whether a deadline included in the original resolution proposing an amendment can subsequently be revoked, and if so, whether that revocation requires passage by the two-thirds congressional supermajority that the original proposal required or whether a simple majority may remove the deadline.

Separate from whether a deadline can be revoked is the fact that the House’s revocation resolution would also have to be passed by the Senate before it could ever become effective. This seems unlikely, since Senate Majority Leader (and legislative gatekeeper) Mitch McConnell, R-Ky, has stated that he is “personally not a supporter” of the Amendment.

Further complicating the picture is the fact that the Office of Legal Counsel (OLC) within the United States Department of Justice, at the request of the National Archives, issued an opinion on January 6, 2020 regarding the effect that a deadline revocation may have. It is the position of the OLC that, while Congress does have the authority to place a limit on the amount of time during which states may approve a constitutional amendment, it does not have the authority to revoke a deadline once that deadline has passed. As such, the OLC has advised the National Archives that the ERA proposal has “expired,” and nothing short of starting the process all over again could create a legitimate equal rights amendment.

It is noteworthy that Justice Ruth Bader Ginsberg, a pioneer in the fight for equal rights, commented on the current status of the ERA during a discussion commemorating the ratification of the Nineteenth Amendment at the Georgetown University Law Center on February 10, 2020. While expressing her great desire for the ERA to pass, she opined that it might be best to have a “new beginning.” As support for starting the amendment procedure from square one, she cited the uncertainty concerning the post-deadline approvals as well as the five states’ rescissions of their prior approvals.

Amid all this variability is one certainty: any forward movement on the current ERA will undoubtedly involve litigation on multiple fronts to address these unanswered questions. Stay tuned.