When I was about 6 years old, my mother (an early feminist) took me to a support rally for the Equal Rights Amendment (ERA), which was sponsored by the National Organization for Women. Even to a child, it seemed like a reasonable idea that the United States Constitution should prohibit sex discrimination.
The proposed amendment passed the U.S. House of Representatives in 1971 and the U.S. Senate in 1972. It says: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
Thirty-eight states needed to ratify the ERA and Congress set a 1979 deadline to do so, but only 35 states made that deadline. (Washington ratified the ERA in 1973, having a year earlier enacting a nearly identical 61st Amendment to the Washington State Constitution.)
After 100,000 women marched in Washington, D.C., Congress extended that deadline to 1982, but no more states ratified. And strangely enough, four states—Idaho, Kentucky, Nebraska, and Tennessee—rescinded (or at least attempted to rescind) their ratifications, and South Dakota says its ratification lapsed with the 1979 deadline.
Now as an adult, I specialize in compliance with equal employment opportunity laws, and as far as I knew the ERA died on the vine almost 40 years ago—Alyssa Milano, it seemed, was better informed, as I was surprised to learn with this Jan. 15 tweet.
Today is a huge day for women and the Equal Rights Amendment.— Alyssa Milano (@Alyssa_Milano) January 15, 2020
Please watch and share this viral doc by the great @KenBurns for some history on the ERA and why all eyes are on Virginia to be the last state needed to ratify the amendment. #ERANow pic.twitter.com/gbSZ9jeEl2
The natural question to ask is, how has the ERA stayed alive the past four decades, and in what state?
On Jan. 15, after Virginia voters elected a record number of women to state office, the Virginia Legislature ratified the ERA. Nevada had done the same in 2017 and Illinois in 2018, ostensibly making Virginia the needed 38th state. But what about the 1979 and 1982 deadlines?
Anticipating the ratification vote in Virginia, on Jan. 6, 2020, the Department of Justice issued a memorandum saying ratification of the ERA came too late.
Some have even asked whether the ERA is still needed. Justice Ruth Bader Ginsburg recently said, “I have been asked many times, ‘Haven’t you through the vehicle of the 14th Amendment gotten to about the same place you would be with the ERA?’ And my answer is: not quite.”
Here’s why: Under the Equal Protection Clause, the standard for determining whether a state can make a distinction based on gender depends on whether the government has an “exceedingly persuasive justification.” But this is something less than the strict scrutiny standard that requires a compelling state interest that is applied to distinctions made on the basis of race or national origin.
Meanwhile, the ERA battle is very much alive in court. To get a handle on the trio of lawsuits surrounding it, you first need to know a little about David Ferriero.
Ferriero, the archivist of the United States, is responsible for certifying and publishing any amendments made to the U.S. Constitution. As such, there are three lawsuits currently pending against him regarding the ERA.
The states of Alabama, Louisiana, and South Dakota sued Ferriero in federal court in Alabama to stop him from adding the ERA to the Constitution. They argue that the ERA expired in 1979, cannot now be ratified, and Ferriero is wrongfully refusing to allow the five states—Idaho, Kentucky, Nebraska, Tennessee, and South Dakota—to rescind their ratifications. The complaint also focuses on access to abortion (“if the ERA were ratified today, activists would urge courts to use the amendment to overturn legitimate regulations of abortion”) and LGBTQ rights (“several courts have recently defined ‘sex’ more broadly to include sexual orientation and gender identity”).
In another competing lawsuit, the organization Equal Means Equal sued Ferriero in federal court in Massachusetts seeking to “ensure that the Archivist performs his duties lawfully, so that the Constitution formally recognizes women’s equality of citizenship for the first time in history.” The complaint argues that because the deadline to ratify was not included within the text of the ERA itself, the extra-textual “deadline is a constitutional nullity.” It also argues that that once a state has ratified an amendment, it cannot rescind that ratification.
And in the most recent lawsuit, the states of Virginia, Illinois, and Nevada sued Ferriero in federal court in Washington, D.C., asking for a writ of mandamus to order him to certify and publish the ERA as the 28th Amendment.
The three cases against Ferriero are still pending. So what is the future of the ERA?
Justice Ginsburg, long a champion of the ERA, recently said that she thinks ERA supporters should start anew. “I would like to see a new beginning. I’d like it to start over.” (Her comments yielded headlines like, “Did Ruth Bader Ginsburg just kill the Equal Rights Amendment?”)
“The union will be more perfect when that simple statement—that men and women are persons of equal citizenship stature—is part of our fundamental instrument of government,” Ginsburg said. “So even if the argument is it’s largely symbolic, it is a very important symbol.”