What Comes Next for the Equal Rights Amendment?

Congress established Women’s Equality Day in 1972 to celebrate the day the 19th Amendment was finalized in 1920, granting women the constitutional right to vote.¹ Observance of the day was also meant to call attention to the ongoing struggle for gender equality. ² Central to this struggle is ratification of the Equal Rights Amendment (ERA).

Shortly after the 19th Amendment was ratified, first-wave feminist leaders turned their attention to the next big project: the ERA.³ First proposed in 1923, the ERA is a constitutional amendment that, if formally recognized as the 28th Amendment, would make sex-based equality explicit in the U.S. Constitution for the first time.⁴ It would prohibit discrimination “on account of sex,” including discrimination against people of all genders. By giving Congress the power to enforce, by appropriate legislation, the amendment’s provisions, the ERA would empower the legislative branch to strengthen legal protections against sex discrimination in areas including gender-based violence, education, the workplace, and access to reproductive health care.⁵ In the event of “legislative default,” as the late Justice Ruth Bader Ginsburg wrote, the ERA would provide courts with “an unassailable basis for applying the bedrock principle: All men and women are guaranteed by the Constitution equal justice under law.”⁶

The ERA has not yet been formally recognized as a part of the U.S. Constitution. In its absence, the U.S. Supreme Court has interpreted the equal protection clause of the 14th Amendment—that no state shall “deny to any person within its jurisdiction the equal protection of the laws”—to prohibit sex-based discrimination to a certain extent.⁸ This approach of securing protection against sex discrimination through the 14th Amendment was first established in the 1971 landmark ruling Reed v. Reed, followed by other cases, such as Frontiero v. Richardson in 1973 and United States v. Virginia in 1996—one of Justice Ginsburg’s most important decisions while sitting on the Supreme Court.⁹ However, sex discrimination has never attained the highest level of judicial review, or scrutiny, under the 14th Amendment that Justice Ginsburg attempted to achieve, and the current interpretation could be overturned, depending on who sits on the Supreme Court.¹⁰ The late Justice Antonin Scalia, for example, explicitly stated in a 2011 interview that he thought the Constitution did not prohibit sex-based discrimination.¹¹

Adopting the ERA would solidify constitutional sex equality protections and reinforce that they cannot be weakened by the whims of judicial attitudes.¹² As a new addition to the Constitution, the ERA’s adoption would create space for an entirely new category of judicial review for sex discrimination cases, unencumbered by previous levels of scrutiny schema.¹³ It would also provide a constitutional foundation for Congress to pass new and more robust laws that protect women and girls.¹⁴ Finally, adoption of the ERA would send a clear message at home and abroad that the United States is committed to the inherent equality of all people as an American value, which is imperative amid increasing state attacks on reproductive rights and the persistent gender wage gap, among other issues.¹⁵

With Virginia becoming the 38th and final state needed to ratify the ERA in 2020,¹⁶ the amendment has met all requirements of Article 5 to become an amendment and is now at a critical juncture in its history. However, legal challenges and partisan opposition have stalled the ERA’s adoption, so the fight continues to get it settled into the Constitution once and for all.

Congress introduced the ERA, written by suffragists Alice Paul and Crystal Eastman, in 1923 and passed it in 1972 with widespread bipartisan support, including 78 percent of House Republicans and 84 percent of Senate Republicans.¹⁷ As laid out in Article 5 of the Constitution, to amend the Constitution, at least two-thirds of both the U.S. House of Representatives and the U.S. Senate must pass a resolution that contains the text of the proposed amendment.¹⁸ Then, at least three-fourths of the states must ratify the amendment. The Constitution does not set any time restraints on the process. For example, states ratified the 27th Amendment, which concerns congressional salaries, in 1992¹⁹—202 years, seven months, and 10 days after James Madison initially proposed it.

However, the version of the ERA that Congress passed included, in its preamble, an arbitrary seven-year time limit for ratification.²⁰ While time limits have become common in proposed amendments since Prohibition, the ERA’s time limit was importantly not included in the text of the version that all states voted to ratify.²¹ This distinction is one element of today’s legal and political challenges to the ERA. While there are scholars who disagree, many pro-equality advocates claim that time limits on the ratification process are inherently unconstitutional, as they are not included in Article 5, and thus, the founders chose not to limit the length of the ratification period.²²

One year following the ERA’s passage in Congress, 30 states had ratified it.²³ However, momentum slowed as the anti-ERA movement ramped up in the latter part of the decade. After nationwide mobilization of hundreds of thousands of voters, Congress voted by simple majority to extend the original seven-year deadline by three years in 1978.²⁴ However, the three-year limit did not allow sufficient time to oust key anti-ERA state senators because Senate terms in most states were at least four years. So, in 1982, the ERA fell three states short of ratification. Failure to reach the necessary 38 states in the 1970s was due to an anti-ERA campaign that dealt a significant blow to the amendment’s bipartisan nature.²⁵

Conservative political activist and attorney Phyllis Schlafly spearheaded the movement, which framed the ERA as a threat to the traditional role of women as homemakers.²⁶ Schlafly made many bad-faith arguments against the ERA, including that it would dismantle financial support for women as legal dependents of their husbands and would lead to gender-neutral bathrooms, same-sex marriage, and women in military combat.²⁷ The anti-ERA movement was a key part of the so-called long Southern strategy that relied on the pillars of: 1) racism, 2) anti-feminism, and 3) Christian nationalism. This strategy had lasting impacts on the U.S. political system that affect the nation to this day.²⁸

The influence of anti-ERA organizers mounted in state legislatures, despite dedicated ratification efforts from the National Organization for Women and other women’s rights organizations.²⁹ Many Republican-majority states reversed support of the amendment,³⁰ with some states even trying to rescind their initial ratification.³¹ Notwithstanding the ERA’s arbitrary time limit in the proposing clause, Nevada and Illinois ratified the amendment in 2017 and 2018, respectively, with Virginia becoming the 38th state in January 2020—meaning that the ERA had finally met the threshold for adoption as laid out in Article 5 of the Constitution.

Once an amendment is properly ratified, the archivist of the United States has a statutory duty to certify and publish it in the Federal Register.³² For example, when the final state necessary ratified the 27th Amendment, the U.S. archivist at the time, Don Wilson, certified it, and the next day, it was published in the Federal Register.³³ Two days later, Congress passed a resolution affirming it as the 27th Amendment,³⁴ though that was unnecessary and purely ceremonial. Archivist Wilson said:

I got a lot of pressure from members of Congress and my response was always that I feel pretty strongly this is a ministerial function, a function given to the Archivist to certify and publish once three-quarters of the states ratified. It is a bureaucratic issue, not a political one. And if I don’t certify and there are 38 states that have ratified, then I’m interpreting the Constitution beyond the ministerial function given to me by Congress, and I didn’t feel it was appropriate for me to do that. If I didn’t publish the 27th [Amendment], then I would be playing a role not delegated to me.³⁵

When Virginia ratified the ERA in 2020, instead of prompt publication, a litany of legal battles ensued. Opponents of the amendment’s adoption argue that the amendment is null because the seven-year time limit Congress set in its preamble expired in the 1970s.³⁶ Proponents of the ERA, on the other hand, argue that the ERA should be adopted because deadlines on the amending process are inherently unconstitutional and the seven-year time limit was not included in the version of the amendment that the states passed during ratification.³⁷ For example, the American Bar Association passed a resolution on August 6 of this year stating:

RESOLVED, That the American Bar Association supports the principle that any time limit for ratification of an amendment to the United States Constitution (“Constitution”) is not consistent with Article V of the Constitution; FURTHER RESOLVED, That the American Bar Association supports the principle that Article V does not permit a state to rescind its ratification of an amendment to the Constitution.³⁸

In response to the ERA’s passage in Virginia, in January 2020, the Trump administration U.S. Department of Justice’s Office of Legal Counsel (OLC) issued a memorandum to the National Archives and Records Administration on the ERA, opining that the amendment’s ratifying deadline had expired and that the amendment is “no longer pending before the states.”³⁹ The memo effectively blocked the archivist of the United States from adding the ERA to the Constitution and concluded that the only path to ratification for the ERA was to reintroduce it and begin the entire process from the start.⁴⁰

In 2022, the Biden administration’s OLC released a new memo on the ERA’s status explaining that the Trump administration-era memo was not supported by the Constitution and needed to be updated.⁴¹

Meanwhile, the ERA has also seen action in federal courts. In early 2020, state attorneys general of Virginia, Nevada, and Illinois filed a lawsuit seeking to compel the archivist to certify and publish the ERA.⁴² A federal district court judge ruled the three states lacked standing and dismissed the lawsuit, but the states appealed.⁴³ The case went to the U.S. Court of Appeals for the D.C. Circuit, which upheld the district court’s dismissal of the lawsuit, arguing that the states did not have standing to bring the case.⁴⁴ The states did not pursue an appeal of the D.C. Circuit’s opinion.⁴⁵

Twelve states have not ratified the ERA, but most of these states have introduced bills to ratify it in recent years, including in Republican-controlled legislatures.⁴⁶ (see Figure 1) Since 2017, when Nevada ratified the ERA, modern efforts to ratify have emerged in Arizona, Georgia, Florida, Louisiana, Missouri, North Carolina, South Carolina, and Utah.⁴⁷ Illinois and Virginia were the first to follow Nevada and successfully ratify, then Virginia followed suit. Five states—Nebraska, Tennessee, Idaho, Kentucky, and South Dakota—voted to rescind their ratification in the 1970s, which has raised legal questions, with many legal scholars rejecting the validity of rescinding a ratification.⁴⁸

As soon as Virginia became the final state needed to ratify the ERA in 2020, the amendment entered a critical chapter in its history. Following the most recent state ratifications, several members of Congress have put forth efforts to address the ERA’s standing and end the debate over the time limit provision in the original 1972 ERA’s preamble. In March 2021, during the 117th Congress, the House passed a bipartisan resolution, with a vote of 222-204, to remove the time limit.⁴⁹ The Senate introduced a companion resolution with 51 co-sponsors, which did not pass.⁵⁰

The 118th Congress established the first-ever Congressional Caucus for the Equal Rights Amendment, and both chambers have introduced resolutions to establish the ERA as the 28th Amendment to the Constitution.⁵¹ The ERA caucus is already the fifth-largest caucus in Congress.⁵² House joint resolution 25 and Senate joint resolution 4 are designed to remove the deadline for the ratification of the ERA.⁵³ In April, 2023, S.J.Res.4 was brought to the Senate floor for a vote and received 51 votes.⁵⁴ But, in a procedural maneuver, the Senate majority leader changed his vote in order to preserve the issue for a later date.⁵⁵ Two related joint resolutions, H.J. Res.82 and S.J.Res.39, express that the ERA has been validly ratified and is already enforceable, instructing the archivist to certify and publish it.⁵⁶ Though Article 5 of the Constitution requires no further congressional action, these resolutions could help clarify where Congress stands and help put controversies over the time limit to rest. Any vote on the ERA time limit, which was placed in the resolving clause of the 1972 ERA bill, requires only a simple majority vote.⁵⁷

Regardless of the path that finalization of the ERA ultimately takes, there is a critical need to enshrine gender equality in the U.S. Constitution and adopt the ERA as the 28th Amendment. Globally, 85 percent of constitutions explicitly guarantee equal rights or prohibit discrimination on the basis of sex and/or gender.⁵⁸ This Women’s Equality Day is a reminder that it is past time for the United States to be part of this statistic. While the ERA alone will not immediately remedy deeply rooted inequalities, it is an essential tool to build a more just and equitable society. Its passage would strengthen legal protections against discrimination and further women’s rights and gender equality in every facet of American life.