Thought the ERA Amendment was Dead? Here’s How it might be Ratified

It’s welcome news for many that Sen. Kirsten Gillibrand of New York and Rep. Cori Bush of Missouri have introduced a joint resolution to Congress. It declares the Equal Rights Amendment, long thought dead, has been ratified and is now the 28^th Amendment to the U. S. Constitution.

Their resolution states that the national archivist, who is responsible for certification and publication of constitutional amendments, must certify the amendment immediately. As Rep. Bush said in a New York Times quote, “We can’t let paperwork keep us out of the U. S. Constitution.”

Their resolution marks the Democrats’ second attempt this year to advance the Equal Rights Amendment. In April, Senate Republicans blocked a similar attempt. The April resolution sought to remove an expired deadline for states to ratify the amendment. Only two GOP senators, Lisa Murkowski of Alaska and Susan Collins of Maine, voted for the April resolution.

Gillibrand and Bush adopted a slightly different tactic: ignoring altogether the issue of the expired deadline (a seven-year deadline passed along with the amendment in 1972 and extended three years in the 1980s). The latest strategy discounts the missed deadlines and instead claims the ERA is already the law of the land.

Gillibrand argues the deadline only appeared in a preamble and is not part of the text of the ERA. She believes the ERA fully complies with Article V of the U. S. Constitution which merely specifies approval of two-thirds of Congress and ratification by three-fourths of the states.  Those hurdles have been met: The House approved by a vote of 354-24 in 1971; the Senate by 84-8 in 1972. Then in January, 2020, Virginia finally became the 38^th state to ratify the Amendment.

While Article V is quite clear about requirements, constitutional amendments have taken various routes to ratification. A recent example is the 27^th Amendment, which states Congress cannot raise or lower salaries until the next election. That amendment, introduced along with the first 10 amendments, sat around for more than 200 years before ratification and passage.

The ERA could experience a similar return from the dead. The drive for approval originally began a hundred years ago while the 19^th Amendment (voting rights for women) was passing. After its introduction, the ERA languished until 1971 when Rep. Martha Griffith (D-Minn.) convinced her crusty male colleagues to pull the amendment from the House Judiciary Committee.

During feminism’s Fourth Wave in the ’70s, timing had seemed right. Even Republican politicians hastened to support women’s lib and the amendment’s main section, just 24 words: “Equal rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

But then the opposition sprang into action led by Illinois’ Phyllis Schlafly. She claimed the amendment would lead to all manner of horrors: coed restrooms, women being drafted, same-sex marriage, and mothers denied child custody. Schlafly’s fearmongering worked; ratification of the amendment stalled just three states short of the needed 38.

The ERA was left gathering dust for decades before a revived feminism, partly spurred by the me-too movement, reawakened the nation and led to ratification by three more states: Nevada, Illinois, and Virginia.

Early last year President Biden called on Congress to act, recognizing that the ERA has been properly ratified and (with the required two-year lapse) is now part of the U. S. Constitution. Technical reason for the hold-up is that the archivist of the United States David Ferriero has declined to act despite federal law requiring him to do so.  He cites a 2020 (Trump era) memo from the Justice Department’s Office of Legal Counsel, which contends the amendment is no longer valid because of its failure to meet the imposed deadline. The OLC memo further notes that five states have since tried to back out by rescinding their ratification.

Yet in the wake of the Dobbs decision, Democrats are more zealous than ever about pushing for the ERA. The key section of the amendment – those 24 words establishing equal rights — is packed with possibilities. Rep. Bush spelled out the ERA’s potential: “to protect access to abortion care nationwide, defeat bans on gender-affirming health care, shore up marriage equality, eliminate the gender wage gap, help end the violence against women and girls and so much more.”

Sen. Gillibrand conceded she didn’t think most Republicans would support the amendment, “largely because the pro-life movement has co-opted this argument.” It’s her hope to compel President Biden to take more vigorous action on behalf of women, pressure the archivist, and work to change filibuster rules.

However, there sadly is little chance this latest effort will draw close to the 60 votes necessary for the resolution’s passage in the Senate — this despite the fact that the United States has long been an outlier among democracies that recognize women’s equal rights. Some 168 countries and 28 states already do so. According to a 2020 Pew Research Center poll, most Americans (almost 80 percent) support adding the ERA to the Constitution.

The recent push to recognize the ERA makes timely sense as well as good politics. Even without Senate support, the resolution will shine a spotlight on Republican opposition to social measures that have broad voter approval. Meanwhile, it is infuriating to find that more than two decades into the 21st Century, the U. S. Constitution does not formally recognize full equality of more than half of this nation’s population.