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Rep. Bella Abzug at a rally supporting the Equal Right Amendment in the 1970s. (Photo: Library of Congress).

Scarinci: ERA Amendment is Long Overdue

By Donald Scarinci, April 24 2023 1:35 pm

The Equal Rights Amendment that was first sent to the states in 1972 must become the next amendment to the United States Constitution.  It is long overdue.

The Equal Rights Amendment, which was first sent to the states for ratification in 1972, contained a seven-year ratification deadline. When the deadline expired, the ERA was three states short.

Earlier this year, Democrats in Congress introduced a resolution to remove the deadline for ratification. The 38-state threshold needed for ratification was recently met, and the resolution might clear the way for the amendment to become part of the Constitution. However, the resolution stands on shaky legal and political footing.

History of the Equal Rights Amendment

Under Article V of the Constitution, there are two mechanisms that can be used to amend the Constitution. First, a Constitutional amendment may be proposed by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate. States can also petition Congress to call a constitutional convention. However, there is a high bar for this process as well; the legislatures in two-thirds of states must agree. In either case, a successful proposal must also be ratified by three-fourths of the States (38 of 50 States), either by the state legislature or a special convention.

In the case of the ERA, which provides that the rights guaranteed by the Constitution apply equally to all persons regardless of their sex, Congress overwhelmingly approved it in 1972. The amendment was then sent to the states, with ratification in 38 states required for adoption. The ERA also included a seven-year deadline for ratification. Although Congress extended the deadline to June 30, 1982, the ERA received only 35 of the necessary 38 state ratifications. Moreover, five states rescinded their prior ratifications.

In recent years, three states have ratified the ERA — Nevada in 2017, Illinois in 2018 and Virginia in 2020. As a result, the 38 states needed for certification of the ERA to be become the 28th Amendment to the Constitution has finally been reached. The question now is what about the ratification deadline?

Renewed Effort to Add ERA to the Constitution

In January, Congresswoman Ayanna Pressley (MA-07) and Senator Ben Cardin (D-MD), along with Senator Lisa Murkowski (R-AK) and Congresswomen Madeleine Dean (PA-04), Sylvia Garcia (TX-29), Abigail Spanberger (VA-07), Cori Bush (MO 01), Sydney Kamlager-Dove (CA-37), and Senators Dick Durbin (D-IL) and Mazie Hirono (D-HI), introduced a bicameral, joint resolution to affirm the ratification of the ERA and eliminate what the lawmakers call an “arbitrary” deadline.  Supporters of the ERA maintain that Article V of the Constitution gives Congress-wide discretion over the amendment process.

“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,” Senator Dick Durbin said in a press statement.  “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.”

Despite being back in the headlines, the ERA faces an uphill battle. Supporters must convince Congress (and likely the courts) that the ERA did not need to be ratified within its original seven-year deadline. If that doesn’t work, the next step is to do what late Justice Ruth Bader Ginsburg, a lifelong proponent of the ERA, advised in 1977 — simply start over.

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