38 States Ratified ERA, Now What (2020)?

The ERA billboards that were posted around North Carolina last year are still true – 4.2 million women live in North Carolina. Zero have equal rights.


Counting girls as well as women, the statement becomes “5.2 million women and girls live in NC. Zero have equal rights.”

Thanks to women in Virginia, 38 of 38 states needed have ratified the Equal Rights Amendment (ERA) as of January 2020, and there have been developments on a few fronts. Here is a review and an update on what is happening now. For more about why we need ERA, see Simple Justice, Long Overdue.

The ERA was approved by the U.S. House of Representatives on October 12, 1971 and by the U.S. Senate on March 22, 1972, when the ERA was submitted to the state legislatures for ratification, as provided for in Article V of the U.S. Constitution. When the ERA deadline was reached in 1977, and then the new deadline was reached in 1982, 35 of 38 states had ratified ERA. States that hadn’t ratified it were mostly in the Southeast and the Southwest.

States that hadn’t ratified ERA through 2017 when Nevada finally ratified it. Photo Credit: http://www.equalrightsamendment.org

Nevada ratified it in 2017, Illinois ratified it in 2018, and Virginia ratified it in 2020.

Who supports ERA 

 “Three of four people support Equal Rights Amendment, according to “Equal Rights Amendment Poll Congress,” 2/24/20, The Guardian. 

According to the same article, “Nearly the same amount of Americans, 72%, incorrectly believe the constitution now guarantees men and women equal rights under the law.”

The ERA faces opposition from conservatives who see it as endangering their stances on abortion and transgender rights, and the Trump administration is trying to put its foot on scale of justice.

Here is another way to look at the many people in favor of ERA. “The new poll from the Associated Press-NORC Center for Public Affairs Research found a significant partisan gap in views of the ERA but majorities in support. Nearly nine in 10 Democrats, compared with about six in 10 Republicans, say they were in favor.”

Issues now

There are 3 main issues at this time. To have an amendment become valid law, an archivist must accept and file it. At that point, a 2 year period begins allowing for states to update their laws to get in line with the amendment. The 2 year period coming from the text of the amendment itself (Article 3). The archivist is being sued because he hasn’t done this. The second issue is the three state strategy vs. start over strategy officially valid, as we believe it to be. The third issue is can states rescind their support for an amendment once they have ratified it? If so, how would that work? Also, which lawsuits are related to ERA?

ERA-NC Alliance provided a 3 page summary of current “ERA Litigation and Congressional Legislation.V3” which you can read here.

Three State Strategy – Getting to 38 states

Congress passed the ERA in 1972 (passed Senate on 3/22/72) and the way it works for constitutional amendments is the next step is for 3/4 of the states (38 of 50 states) being required to ratify it. The first deadline was 1977, and that was later extended to 1982. The deadline isn’t part of the amendment itself. And as of January, 2020, 38 states have ratified ERA.

Many ERA advocates believe the 3 state strategy (getting 3 more states to ratify ERA vs. starting over on a new ERA bill) should work because of a constitutional amendment that was ratified in 1992, more than 203 years after its 1789 passage by Congress. That was the 27th Amendment. 

In full, the 27th Amendment stipulates that, “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” In other words, members of the United States Congress are not allowed to raise or lower their salaries mid-term. That might seem a like a common sense regulation, but it took over 2 centuries to get it to be part of the constitution. The issue it would fix had become very relevant again. Read more about it at “The Strange Saga of the 27th Amendment,”  8/13/18, History.com.

The Trump administration is trying to declare that ERA is a dead issue because the deadline expired, but precedent with the 27th amendment says otherwise.  Certainly the need for an Equal Rights Amendment is extremely relevant, as shown in the recent ratification of ERA in 3 states, billboards on ERA, books and documentaries on ERA, organizations on ERA (like NC’s own ERA-NC Alliance, created in 2014, preceded by NC4ERA and RatifyERANC).

What about States That Rescinded the ERA

Another issue  is that four states rescinded the ERA after ratifying, and a fifth state thought to rescind but let it go since the second deadline expired. There is some lack of clear precedent on rescissions. In the case of ERA, NOW had filed a lawsuit to clarify this.

“[I]n 1982, arguments over the legality of the extended ratification deadline and the ability of states to rescind their ratifications made it to the Supreme Court. In a one paragraph statement in National Organization of Women v. Idaho, the Court dismissed the case as moot because the ERA’s deadline had just expired.” according to the Constitution Center Blog in “Can a dormant proposed constitutional amendment come back to life?” 5/31/18.

Both the issues of time limit and rescission are discussed with Cornell Law under Ratification at https://www.law.cornell.edu/constitution-conan/article-5/ratification.

Current Bills and lawsuits on era

Changing the deadline is a key part of one route that some ERA proponents believe would lead to the amendment becoming a part of the Constitution. However, there isn’t legal consensus that Congress can remove the deadline in this way. Congress has a current bill in process to retroactively remove the deadline on ratifying ERA. On 2/13/20, the US House voted to remove the deadline on ratifying the Equal Rights Amendment. The 232-183 vote fell largely along party lines with five Republicans supporting the measure and zero Democrats opposing it. Next step is US Senate. Senate Majority Leader Mitch McConnell, R-Ky., has said that he’s “personally not a supporter” of the amendment. Not a surprise.

On December 16, 2019, the states of Alabama, Louisiana and South Dakota sued to prevent further ratifying of the Equal Rights Amendment (trying to stop Virginia). Alabama Attorney General Steve Marshall stated, “The people had seven years to consider the ERA, and they rejected it. To sneak it into the Constitution through this illegal process would undermine the very basis for our constitutional order.” (wikipedia on era)

On January 6, 2020, the Department of Justice Office of Legal Counsel official Steven Engel issued an opinion in response to the lawsuit by Alabama, Louisiana, and South Dakota, stating that “We conclude that Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the States.” The OLC argued in part that Congress had the authority to impose a deadline for the ERA and that it did not have the authority to retroactively extend the deadline once it had expired. (wiki on era)

After Virginia ratified ERA, the attorney generals of the states that ratified ERA filed their own lawsuit to get the ratification recognized and get the bill going. 
“On January 30, 2020, the attorneys general of Virginia, Illinois and Nevada filed a lawsuit to require the Archivist of the United States to “carry out his statutory duty of recognizing the complete and final adoption” of the ERA as the Twenty-eighth Amendment to the Constitution.

NC’s Sordid History on Women in the Constitution

NC blew the vote on the 19th amendment – to give women the right to vote. Had the opportunity to pass it in 1920. Didn’t do it until 1971!

On Aug. 17, 1920, the North Carolina legislature defeated the measure by two votes. The next day, the Tennessee legislature passed it, and the amendment became law. The North Carolina General Assembly didn’t get around to formal ratification until 1971.

Ratification of the Equal Rights Amendment is in sight, and this time, North Carolina should be part of history and not left behind. NC NOW, ERA-NC Alliance, NC4ERA and others have made sure two NC Ratify ERA bills have been introduced in the North Carolina General Assembly every chance since 2015. The text of the ERA is as follows:

  • Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
  • Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
  • Section 3: This amendment shall take effect two years after the date of ratification.

Conclusion

We shall see how this plays out.

In floor speeches for the bill to remove the deadline on 2/13/20, “Democrats framed the amendment as being about fairness and inclusion. Some also made an economic argument.”

“It’s not just about women; it’s about America,” said House Speaker Nancy Pelosi, D-Calif. “The ERA will strengthen America, unleashing the full power of women in our economy and upholding the value of equality in our democracy.”

NOW agrees.

Shortlink: https://wp.me/p22b2e-2xW

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