HDTW?: Revival of the Equal Rights Amendment
Introducing “HDTW” (How Does That Work?)
One of the most common experiences for Capitol Hill interns (and staff) is hearing about a topic — maybe in passing conversation, from a call or constituent letter— and thinking, “wait, how exactly does that work?”. Congress is confusing! And it is absolutely impossible for anyone, much less an intern there only for a short time, to understand how everything works. That’s where our new “HDTW” tab comes in. We will periodically dig in on procedures, topics, and explanations to demystify what’s happening in the U.S. Congress.
Up first in HDTW: what’s going on with the Equal Rights Amendment?
Some background on the ERA
Back in March, the House voted to eliminate the ratification deadline for the Equal Rights Amendment (ERA), which guarantees equality for men and women through the prohibition of discrimination based on sex.
First introduced in 1923, the Amendment was proposed by Alice Paul, head of the National Women’s Party. Paul proposed the Amendment to ensure constitutional gender equality beyond women’s voting rights delineated in the 19th Amendment. The ERA gained traction in the 1970s due to a resurgence in the women’s movement and passed both the House and Senate with bipartisan support in 1972.
You will remember from your American Government classes that a Constitutional amendment must be “ratified” by two-thirds of state legislatures. Following the 1972 passage in the House and Senate, thirty of the necessary 38 states ratified the ERA within a year. However, a successful opposition movement led by Phyllis Schlafly drastically slowed ratification momentum. By the 1977 ratification deadline, only 35 states had signed on. Congress extended the deadline to 1982, but no additional states ratified the Amendment in that time. The ERA remained untouched for nearly four decades.
Doesn’t this already exist?
80% of Americans believe that men and women are guaranteed equal rights under the Constitution. However, this isn’t the case. The 14th Amendment provides some safeguards by ensuring equal protection under the law, but these protections are subject to interpretation. Some Supreme Court justices view the 14th Amendment as a protective measure against gender discrimination, while others, such as late Justice Antonin Scalia, don’t believe that the 14th Amendment prohibits gender discrimination in every circumstance. In addition to the limited protections provided by the 14th Amendment, some laws at the state and federal levels address gender discrimination, but do not apply to all.
According to a 2020 poll from Pew Research Center, 78% of Americans favor the addition of the ERA to the U.S. Constitution.
So, what’s happened since the 1980’s?
After almost 40 years with no action, Nevada ratified the ERA in 2017. Shortly after, Illinois followed suit. In January 2020, Virginia became the 38th state to ratify the Amendment. But does it count since the ratification deadline has expired? Unclear.
Though the deadline was initially extended, there has never been an attempt to waive a ratification deadline after its expiration. In January, the House succeeded in passing a resolution to remove the ratification deadline. Last week, the House Oversight Committee held a hearing to examine the ERA and its path moving forward.
Even if a bill to remove the ratification deadline were to pass both chambers of Congress, other legal challenges would likely arise. Many states have withdrawn their initial ratification, and some opponents argue that all ERA efforts are illegitimate following its expiration deadline in 1982.
As last week’s hearing demonstrates, the effort to enact the ERA is not over but neither are the questions about the road ahead. How does that work? We’ll have to keep watching!
Shruti Nayak is a Research Intern at the POPVOX Foundation and editor of the weekly Intern Update newsletter. SUBSCRIBE
