No, the Equal Rights Amendment Isn’t Part of the Constitution
Before leaving office, President Joe Biden declared that the Equal Rights Amendment (ERA) had been ratified as the Twenty-Eighth Amendment. A mere statement that the ERA has been ratified probably doesn’t matter too much unless federal courts take up the issue. Why? Because the National Archives has recently noted, “At this time, the Equal Rights Amendment (ERA) cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.”
I’ll get back to the ERA in a moment, but I want to note a couple of quick things. First, the Fourteenth Amendment states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Second, 25 states have equal rights amendments in their constitutions. These states include Florida, Indiana, Iowa, Montana, Texas, Utah, and Wyoming. Obviously, I mention these states because they are either traditionally Republican or have moved toward Republicans in recent election cycles. The relevant text of the federal ERA 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.” These states have analogous language.
On the one hand, I would argue that the ERA is redundant because equal protection under the law is guaranteed as a matter of federal citizenship, which takes primacy over state laws. In other words, a state can’t discriminate against an individual who is a member of a protected class. A good example is the Supreme Court’s decision in Brown v. Board of Education (1954), which desegregated public schools.
On the other hand, states with analogous provisions of their constitutions are diverse in terms of their politics, ranging from deep blue to purple to deep red. If the opposition is based on the issue of abortion, there are a number of states, including those with provisions analogous to the ERA, that have enacted antiabortion laws in recent years that have been upheld in state courts.
Anyway, back to the issue at hand.
The ERA was passed as H.J.Res. 208 during the 92nd Congress (1971-1972) and sent to the states for ratification. However, Congress required that the requisite three-fourths of states ratify the amendment “within seven years from the date of its submission by the Congress.” The original deadline was March 22, 1979. Thirty-five states ratified the ERA between its submission to the states and the expiration date—three short of the number needed for ratification.
The inclusion of an expiration date had become something of a regular practice in constitutional amendments. For example, since the Eighteenth Amendment, the only two amendments ratified that didn’t have expiration dates were the Nineteenth Amendment and the Twenty-Seventh Amendment. Now, a big difference between the ERA and the ratified amendments that had expiration dates is that the ERA included its expiration date in the “resolving clause.” The ratified amendments included the expiration date in the actual text of the amendment.
Additionally, six states have rescinded ratification of the ERA. Five of these states passed these measures within the original seven-year timeframe. The rescission of ratification is a constitutional gray area. The Constitution doesn’t speak to rescinding the ratification of a proposed amendment, so, arguably, there’s no mechanism available to undo the ratification of a constitutional amendment once a state has done so.
In 1978, Congress passed an extension of the expiration date to January 30, 1982. Interestingly, although there’s a constitutional requirement that constitutional amendments passed with the approval of two-thirds of the House and the Senate, H.J.Res. 638 passed by simple majorities in both chambers. No additional states ratified the amendment during this time.
The most recent states to ratify the ERA were Nevada (March 2017), Illinois (May 2018), and Virginia (January 2020). Ignoring the constitutional gray area related to rescinding ratification, Virginia was the 38th state to ratify the ERA. Obviously, we’re talking about decades between the expiration date for ratification and ratification by Virginia.
Now, the Supreme Court has weighed in on the subject of expiration dates. In Dillon v. Gloss (1921), the Supreme Court held that Congress could include expiration dates for the ratification of proposed constitutional amendments. The Supreme Court held Coleman v. Miller (1939) modified Dillon by holding that proposed amendments without expiration dates were pending business before state legislatures. This would matter later because of the ratification of the Twenty-Seventh Amendment, which was sent to the states by Congress in 1789 but wouldn’t receive the three-fourths ratification from the states required for adoption until 1992.
The Office of Legal Counsel in the Department of Justice has recently issued opinions on the ERA that are vitally important to the ongoing discussion. The first opinion, issued in January 2020, indicated that the original ERA was dead; that Congress couldn’t change the expiration date on ratification.
Some may say dismissively that the opinion was during the first Trump administration. Fair enough. However, another opinion on the ERA was issued in January 2022, during the Biden administration. Notably, this opinion didn’t suggest or otherwise indicate that the ERA had been ratified, although it did point to ongoing litigation on the subject of ratification. The opinion spoke to the ability of Congress to change the expiration date or the ability of federal courts to resolve the issue. From what I can tell, no other opinions of the ERA were filed by OLC during the Biden administration.
Additionally, court cases led by states to force the validity of the ERA haven’t been successful to this point. The most recent lawsuit on the ERA—Illinois v. Ferriero (2023)—went against supporters of the ERA in the D.C. Circuit Court of Appeals.
Wanting does not make it so. Regardless of how one looks at it, the ERA hasn’t been ratified, and it’s not part of the Constitution. I’m not saying whether it should or shouldn’t be, but the political questions around the ERA must be looked at through the lens of reason to determine the answers. The answers aren’t what supporters of the ERA want.
