134 nations contain constitutional provisions guaranteeing gender equality under the law. 80 percent of Americans incorrectly believe the U.S. Constitution already does. It does not.
Nevada may have just resuscitated the major political issue, which had remained largely dormant for decades. On March 22nd, 2017, in a currently symbolic move, Nevada voted to ratify the Equal Rights Amendment (ERA), a U.S. constitutional amendment proposal that passed Congress in the 1970s.
However, the ERA fell three states short of the necessary 38 state ratifications by the 1982 deadline. With three of those missing states poised to ratify the amendment this year or next, legislation introduced in Congress would eliminate that 1982 deadline — potentially paving way for the amendment’s passage.
The context and what the bill does
The amendment, which states “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex,” passed Congress overwhelmingly: 354–24 in the House and 84–8 in the Senate.
But with three-quarters of the states needed to pass it, or 38 states total, it maxed out at 35 states by the bill’s deadline of 1982. The last state to ratify was Indiana in January 1977, more than four full decades ago. However, Congress can extend or eliminate the deadline retroactively and bring passage of the ERA back to the table.
S.J. Res. 5 and H.J. Res. 53 have been introduced in the Senate by Sen. Ben Cardin (D-MD) and Rep. Jackie Speier (D-CA14) to eliminate the deadline for ratification. If the bill passes, then as long as 38 states ratify the amendment at any point, it would become part of the Constitution.
And with two states left to go, this isn’t a theoretical question. Advocates point to Illinois and Virginia as two states potentially likely to ratify the Equal Rights Amendment this year or next.
Who supports it
Supporters argue the legislation and constitutional amendment are necessary to ensure that women, who make up slightly more than half of the U.S. population at 50.4 percent, have equal rights to men, which advocates consider a basic issue of fairness.
Supporters also note that the 27th Amendment took more than two centuries between its 1789 congressional passage and receiving the necessary number of state ratifications in 1992. If that amendment didn’t contain a deadline and eventually found the necessary support later on, supporters ask, why shouldn’t the Equal Rights Amendment?
“I think many Americans would be shocked to find out that the U.S. Constitution still lacks a provision ensuring gender equality. Think about that: in 2017, women lack the same constitutional protections as men. This is clearly wrong and needs permanent correction,” Cardin said in a press release. “America was built on the promise of equal rights. Our history is defined by groups struggling to achieve full equality under the law. It’s long past time for us to recognize the equality of women in our fundamental governing documents.”
None of the biggest pollsters — such as Pew Research or Gallup — appear to have asked about the Equal Rights Amendment in the past few years, although that may change soon given the issue’s newfound timeliness. Cornell University’s Roper Center for Public Opinion Research has graphed the increasing support for the amendment over time.
Who opposes it
Opponents worry that the bill would upset traditional gender roles, fortify the Roe v. Wade Supreme Court ruling, and could provoke unintended consequences such as incidentally prohibiting differentiated bathrooms by sex.
Conservative columnist Ramesh Ponnuru wrote in Bloomberg View: “If the military draft ever returned, the amendment would mean that women had to be subject to it. Supporters of the right to abortion that the Supreme Court had pretended to find in the Constitution would use the ERA to strengthen their case, too.” (Women are exempt from the draft, despite a measure requiring them to register almost passing last year.)
What about President Trump? Trump does not appear to have ever commented publicly on the amendment, nor do presidents have a formal role in the constitutional amendment process which requires approval only of Congress and state legislatures. However, as leader of the Republican Party, Trump certainly would have an informal role in helping or hindering its passage based on his support or opposition.
Is extending the deadline constitutional?
Some are concerned about whether Congress would even be allowed to extend the deadline. A Supreme Court decision called Coleman v. Millerfound that when a deadline has been fixed to an amendment proposal, a subsequent Congress has the right to determine whether the amendment is “no longer responsive to the conception which inspired it.” Some conservatives believe the ERA is no longer societally necessary as it was in the 1970s — if it was even necessary back then.
Another constitutionally questionable issue is the five conservative states that rescinded their ratification, taking it back: Idaho, Kentucky, Nebraska, South Dakota, and Tennessee. The Constitution does not reference whether a state is allowed to take back a ratification after it has previously approved an amendment. If those reversals are upheld as valid, then the number of states to have ratified (counting the recent Nevada) would drop from 36 to 31 — a perhaps insurmountable hurdle in the quest for 38.
Odds of passage
The bills have attracted 148 House cosponsors and 28 Senate cosponsors, none of them Republicans. The legislation awaits a vote in the Senate and House Judiciary Committees.
The versions introduced in the previous Congress, neither of which received a vote, attracted 30 Senate cosponsors and 164 House cosponsors. Both chambers included one Republican cosponsor: former Sen. Mark Kirk (R-IL) and Rep. Cynthia Lummis (R-WYO), who were, respectively, defeated in his November re-election bid and declined to seek another term. It’s unclear whether there is a single sympathetic Republican in the current Congress at this time.
This time, could congressional Republicans be forced to act despite their opposition? Maybe, just maybe, the answer is yes. The party that loudly proclaims “states’ rights” and “the Constitution” from the rooftop at almost any opportunity could face a massive public backlash if they block a constitutional change approved by the vast majority of states. And the party’s pulled Affordable Care Act replacement last week indicates that they are susceptible to public pressure.