By Holly Black
“We hold these truths to be self-evident that all men are created equal . . .” is a familiar phrase to anyone who has taken a high school civics class. It is one of the most famous phrases from the United States Declaration of Independence, and to some, the cornerstone of our democracy.[1] But what does this phrase mean for women?
Today, we treat the founding fathers’ references to “men” or “the people”[2] as references to all people in the country.[3] However, that language still does not guarantee completely equal rights for women, and sex discrimination is still constitutional in the United States.[4] Since 1923, legislators and states have been trying to overcome this issue by adding the Equal Rights Amendment (“ERA”) to the United States Constitution.[5] It seems, though, that this fight may be finally coming to a close. On January 15, 2020 Virginia became the pivotal thirty eighth state to ratify the amendment.[6]
Section One of the ERA reads “Women shall have equal rights in the United States and every place subject to its jurisdiction. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”[7] This key language would allow courts to treat sex as a suspect class, in the same way courts treat race today.[8] With this amendment, the Constitution would expressly prohibit discrimination based on sex. Therefore, government actions that discriminate based on sex would be reviewed with strict scrutiny, the most stringent level of judicial review. Since strict scrutiny is “strict in theory, fatal in fact,”[9] courts would have every reason to strike down any and all government action that discriminates based on sex.
However, as dictated by the Constitution, this could not be implemented until the amendment was ratified by three-fourths of the states.[10] Interestingly, the ERA was originally approved in 1972, with a seven-year deadline to garner the requisite three-fourths state ratification.[11] Even with a three year deadline extension,[12] the ratification effort was three states short.[13] Recently, ratification has seen a resurgence.[14] Nevada ratified the amendment in 2017, then Illinois ratified in 2018, and now Virginia has become the thirty eighth state to ratify.[15]
Since “going blue” in the 2019 state elections, Virginia now has its first unified democratic government in twenty six years––and that’s great news for the ERA.[16] Originally, the ERA was not a partisan issue and it had a wide variety of support from both red and blue states.[17] However, conservative opponents of the amendment have recently been arguing that it would remove certain restrictions and expand access to abortion and contraception.[18] Now, conservative states are hesitant to support ratification.[19] In fact, the political discussion around the ERA has become so partisan that Idaho, Kentucky, Nebraska, Tennessee, and South Dakota have even attempted to withdraw their previous ratification.[20] In December 2019, Alabama, Louisiana, and South Dakota even sued in an attempt to block the ERA.[21] Alabama’s Attorney General argued that the ERA “would not promote true equality, but rather a far-left agenda.”[22]
This new partisan divide presents new challenges for ratification. While Eileen Filler-Corn, Virginia’s new speaker of the House of Delegates (and the first woman to hold the title) remains committed to adding the ERA to the Constitution, the U.S. Justice Department’s Office of Legal Counsel declared the 1982 deadline binding and expired.[23] Not only is Assistant Attorney General Steven Engel saying the deadline has “come and gone,” but that “the amendment has necessarily failed.”[24] According to the DOJ Office of Legal Counsel, the amendment is effectively nonexistent and the number of ratifying states has gone back down to zero. According to the DOJ Office of Legal Counsel Congress must start over with the amendment process and each state must ratify the amendment once again.[25] With five states already attempting to withdraw their original ratification of the ERA, that’s a dangerous move for ratification. Additionally, the National Archives and Records Administration said it will follow DOJ’s opinion unless a court intervenes.[26]
But ERA-proponents don’t have to worry just yet. There still are three legal avenues for Virginia and other supporters of the amendment to finally add it to the Constitution. First, is that Congress can pass H.J. Res. 79 – a joint resolution proposed in November 2019 that eliminates the 1982 deadline.[27] In November 2019, the House Committee on the Judiciary ordered the joint resolution to be reported and a similar joint resolution was introduced in the senate.[28] Even if the joint resolution does pass in the House, it still does not have a large amount of republican support (only two of S.J. Res 6’s thirty eight cosponsors are republicans), so it’s unlikely to pass in the republican-controlled Senate.[29] The other option, though perhaps more unlikely, is that Congress calls its first ever constitutional convention for amending the Constitution.[30]
Finally, if all else fails, Virginia and other ratifying states have one, final option known as the “Three State Strategy.” The strategy reasons that if in 1992 the Madison Amendment (now the Congressional Pay amendment) could be ratified a full 203 years after it was introduced, surely the ERA can be ratified a few decades after its initial ratification in 1972.[31] The Supreme court held in Dillon v. Gloss that constitutional amendments should be ratified within a “sufficiently contemporaneous” time frame as ‘to reflect the will of the people in all sections at relatively the same period.”[32] A large part of this strategy is that Article V of the Constitution specifies no time limit for amendment ratification.[33] Therefore, proponents argue ratifying the ERA in 2020 is still within a “reasonable” time limit.
With
these three options in hand, Virginia remains committed to ratification and
eventually adding the amendment to the Constitution.[34]
Whether this means exercising one of their legal options or challenging the
validity of the 1982 timeline in court, one thing is clear – the
forty-eight-year fight to ratify the ERA is not over yet.
[1] The Declaration of Independence para. 2 (U.S. 1776).
[2] U.S. Const. pmbl.
[3] See Allison L. Held, Sheryl L. Herndon, Danielle M. Stager, The Equal Rights Amendment: Why the Era Remains Legally Viable and Properly Before the States, 3 Wm. & Mary J. Race, Gender, & Soc. Just. 112, 113–14 (1997).
[4] Id. at n.4.
[5] Danielle Kurtzleben, Virginia may Ratify the Equal Rights Amendment. What Would Come Next is Murky, NPR (Jan. 8, 2020), https://www.npr.org/2020/01/08/794418122/virginia-may-ratify-the-equal-rights-amendment-what-would-come-next-is-murky.
[6] Bill Chappell, Virginia Ratifies Equal Rights Amendment, Decades After the Deadline, NPR (Jan. 15, 2020, 3:36 PM), https://www.npr.org/2020/01/15/796754345/virginia-ratifies-the-equal-rights-amendment-decades-after-deadline.
[7] Roberta W. Francis, The Equal Rights Amendment: Frequently Asked Questions, ERA (Feb. 5, 2019) https://www.alicepaul.org/wp-content/uploads/2019/05/ERA-FAQs-updated-2_19.pdf.
[8] Id.
[9] In 1980, Chief Justice Burger characterized strict constitutional scrutiny as “scrutiny that is strict in theory, but fatal in fact.” See Fullilove v. Klutznick, 448 U.S. 448, 519 (1980).
[10] Federal Register, Constitutional Amendment Process, Nat’l Archives (Aug. 15, 2016), https://www.archives.gov/federal-register/constitution.
[11] Chappell, supra note 6.
[12] The deadline was extended to June 30, 1982.
[13] See Chappell, supra note 6; Ratification Info State by State, ERA https://www.equalrightsamendment.org/era-ratification-map (showing the original ratifying sates as: Alaska, California, Colorado, Connecticut, Delaware, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Vermont, Washington, West Virginia, Wisconsin, and Wyoming).
[14] Although these states ratified after the 1982 deadline passed, Congress has the power to determine the timeliness of the ERA after the final state’s ratification. This determination can be made independently of any deadlines that had been set before the final state ratified. See Held, et al., supra note 3, at 115; Francis, supra note 7, at 3.
[15] Id.; Chappell, supra note 5.
[16] Martin Austermuhle, Daniella Cheslow, Barbara Sprunt, Hannah Schuster, Blue Wave Turns Virginia State Government Fully Democratic for the First Time in 26 Years, WAMU (Nov. 5, 2019), https://wamu.org/story/19/11/05/blue-wave-turns-virginia-state-government-fully-democratic-for-first-time-in-26-years/.
[17] The ERA was first incorporated into the Republican platform in 1940, followed by the Democratic platform in 1944. Later, in 1972 it passed both the House and the Senate with a required two-thirds majority. See Sheryl Gay Stolberg, Congressional Democrats to Revive Equal Rights Amendment Push, N.Y. Times (Nov. 7, 2019) https://www.nytimes.com/2019/11/07/us/politics/congress-era-equal-rights-amendment.html.
[18] Francis, supra note 7, at 6–7.
[19] Kurtzleben, supra note 5; Veronica Stracqualursi, 3 Conservative-Leaning States Sue to Block the ERA from Ratification, CNN (Dec. 19, 2019) https://www.cnn.com/2019/12/19/politics/alabama-lawsuit-equal-rights-amendment/index.html.
[20] Francis, supra note 7.
[21] All Things Considered, NPR (Dec. 19, 2019) https://www.npr.org/2019/12/19/789949333/alabama-louisiana-and-south-dakota-sue-to-block-equal-rights-amendment.
[22] Stracqualursi, supra note 19.
[23] Id.
[24] Id.
[25] Id. (“Advocates of the ERA must begin the process anew if they wish it to be added to the Constitution, he advised, either by calling a constitutional convention or with the House and Senate each passing the proposal by two-thirds majorities and 38 state legislatures approving it.”).
[26] Mary Tyler March, Virginia Lawmakers Passed the Equal Rights Amendment. Here’s What Comes Next, NPR (Jan. 15, 2020), https://www.npr.org/local/305/2020/01/15/796757334/virginia-lawmakers-passed-the-equal-rights-amendment-here-s-what-comes-next.
[27] Stracqualursi, supra note 19; H.R.J. Res. 79, 116th Cong. (2019).
[28] All Actions – H.J.Res. 79 – 116th Congress (2019-2020),Congress.Gov, https://www.congress.gov/bill/116th-congress/house-joint-resolution/79/all-actions; S.J. Res. 6, 116th Cong. (2019).
[29] Jess Bravin, Clashes over ERA Breaking Out Once More, Wall Street J. (Jan. 8, 2020, 5:52 PM), https://www.wsj.com/articles/clashes-over-era-breaking-out-once-more-11578523932.
[30] Two Modes of Ratification, ERA, https://www.equalrightsamendment.org/pathstoratification; see generally U.S. Const. art. V (“on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments . . . when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three fourths thereof”).
[31] Held et al., supra note 3, at 117.
[32] Id. at 119; see Dillon v. Gloss, 256 U.S. 368, 374–75 (1921).
[33] See generally U.S. Const. art. V.
[34] Kurtzleben, supra note 5 (quoting Virginia Attorney General, Mark Herring, saying “When Virginia becomes the 38th state to ratify the ERA, I am going to do everything in my power to make sure that the will of Virginians is carried out and the ERA is added to our Constitution, as it should be.”).
