Equal Rights Amendment may be near ratification, but must overcome old deadline

Published: Dec. 18, 2019 at 6:00 PM EST
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The Equal Rights Amendment may be close to ratification following Democratic wins in Virginia’s House and Senate and proposed House and Senate resolutions to remove the ratification deadline.

The ERA would guarantee equal constitutional rights to a person regardless of sex.

If ratified in Virginia, the ERA would reach the required 38 states needed to be added as a constitutional amendment. A vote in Virginia’s legislature could come as early as January.

However, the ERA faces a possible challenge in Congress, where the deadline to ratify expired in 1982 and has not been extended or removed despite multiple attempts to do so.

In November, Sen. Ben Cardin, D-Maryland, and Sen. Lisa Murkowski, R-Alaska, sponsored a resolution to again try to eliminate the deadline for ratification.

“As we approach the centennial anniversary in 2020 of adding women’s suffrage to the Constitution, Congress must now step up to do its job by formally removing the ERA ratification deadline,” Cardin said in a statement.

“Everyone should be treated equally under the law, but the U.S. Constitution does not currently guarantee women the same rights and protections as men,” Murkowski said in a statement.

“I’m proud that Alaska was among the early adopters, having both ratified the Equal Rights Amendment and amended the state’s constitution to prohibit discrimination in 1972,” she said. “But for that to happen at a national level, we need one more state to ratify. There’s absolutely no reason to put a time-limit on the ability for that to happen.”

First introduced in Congress in 1923, the ERA passed the House in 1970 and the Senate in 1972. In the following years, 35 states ratified the amendment, with Indiana being the last in 1977.

The original deadline for ratification was March 22, 1979, but that was given an extension through June 1982 in an attempt to gain the last three required states. But no state adopted the amendment during that time.

Interest in the amendment then waned. However, support for the ERA was revived following a wave of activism in the second half of this decade.

In 2017, Nevada became the 36th state to ratify the amendment, followed by Illinois in 2018.

“Women were intentionally left out of the Constitution when it was written,” said Jessica Neuwirth, founder and co-president of the ERA Coalition and Fund for Women's Equality. “The Equal Rights Amendment is long overdue.”

With Virginia standing as the potential 38th state to ratify the ERA, Congress must either pass an extension or remove the ratification deadline for the amendment to become part of the Constitution.

While this is not the first time Virginia has attempted to ratify the amendment, this is one of the first times in years that the potential for ratification seems highly plausible.

In 2018, Virginia tried to adopt the amendment, but the state’s then-Republican-controlled legislature rejected it, despite 81% of Virginia voters supporting the ERA, according to a 2018 Christopher Newport University poll.

Cardin’s current work on the issue is not his first attempt at removing the deadline. In 2017, Cardin and Rep. Jackie Speier, D-California, introduced similar resolutions in the House and Senate with little success.

If Cardin and Murkowski fail to win congressional approval of their current resolution, the ERA would face legal questions.

The expired 1982 deadline is just one problem. So is the status of five states (Idaho, Kentucky, Nebraska, Tennessee and South Dakota) who voted to revoke their earlier ratifications. If those states' revocation actions are recognized by the Congress, then they each would have to ratify the ERA again or supporters would need to find additional states to get to 38.

Cardin has previously noted that “there is nothing in the Constitution that requires time limits, in fact, it might not be necessary for a resolution, but we want to remove the doubt.”

The House Judiciary Committee marked up and passed a companion resolution in November. The resolution will face a full House vote, where it is expected to pass and move to the Senate.

"With ongoing efforts by the federal and state governments to undermine equality under the law based on sex, it is clear that an Equal Rights Amendment is more important than ever," said judiciary Chairman Jerrold Nadler, D-N.Y., said.

The Senate resolution is currently cosponsored by 19 senators, including Cardin’s fellow Maryland senator, Democrat Chris Van Hollen.

Virginia Del. Jennifer Carroll Foy, a Democrat, is sponsoring the ERA ratification legislation in her state.

"We have the rare opportunity to bring this country one step closer to fulfilling its promise of equality for all,” Foy said in a statement. She is one of the first female graduates of the Virginia Military Institute.

If Congress extends the ERA deadline and the amendment gets ratified in Virginia, the amendment would become the 28th added to the Constitution, ending legal distinctions between men and women in regard to employment and property, among other things.

“Congress can and should amend the language to remove the deadline for ratification to ensure gender-based equality is not only supported across the U.S., but also legally recognized,” Murkowski said.