With the ongoing debate over putting a women’s equality guarantee into the U.S. Constitution now being renewed in all three branches of the national government, advocates now face months of uncertainty on what this year will bring. Even so, they are seeking to stir up new interest in an issue that, for almost 99 years, has risen and fallen in visibility.
In July of next year, it will be a century since Alice Paul, a leader of the National Woman’s Party, first proposed an Equal Rights Amendment. That first version read: “Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.”
Now, the latest tactic in that long campaign is getting its start in the U.S. House of Representatives, in the simplest and no doubt the boldest step yet tried: simply declare, by an act of Congress, that the Equal Rights Amendment is already in force as the Constitution’s Twenty-eighth Amendment.
When did that happen? According to House Resolution 891, it occurred just three weeks ago, on January 27. That date, the proposed measure declares, marked two years after ERA had been ratified by the 38th state, reaching the constitutional minimum. (The text of the modern ERA has long specified that, once formally ratified by the necessary three-fourths of the states, it would take effect two years later.)
This House measure dates the final ratification as having come on January 27, 2020, when Virginia’s legislature voted to do so. (The ERA that won approval there reads this way: “Equality of rights shall not be denied or abridged by the United States or by any state on account of sex.”)
If both houses of Congress were to approve Resolution 891, would that satisfy the requirements of the Constitution’s Article V, which spells out the procedure for amending the basic document? That question surely would be raised, in a new court fight by opponents of ERA, should Congress approve that measure.
But there is already a fight going on in federal court, and one of the basic questions in that case is: who decides on whether an amendment has been ratified, Congress or the courts?
That court case turns on the basic question of whether ERA is dead because earlier deadlines set by Congress for ratification have long since lapsed. Now pending in the U.S. Court of Appeals in Washington, D.C., that case is on schedule for the Biden Administration to take a position by filing its legal brief on March 4.
As recently as last month, a Justice Department official noted in a formal legal opinion that the new Administration was taking part in that case, defending the view that the passage of the ratification deadlines means that the ERA cannot now be ratified. (That was the view the Trump Administration took in the case when it still held the government power.)
But will the Department continue on that side of the case, in the wake of a statement by President Biden last month? He said “it is long past time” that ERA be put into the Constitution, and he explicitly endorsed the House Resolution recognizing that ratification has already occurred.
The Justice Department can act independently of the White House, but there would be a glaring inconsistency with the President’s view if the Department holds to a defense of the idea that ratification is a dead issue.
But there is another question hanging over the case in the Court of Appeals. It is whether the state of Virginia, one of three states that filed that lawsuit to promote the idea that 38 states had now successfully ratified it, will continue to press that view. Virginia has a new Republican governor and new Republican state attorney general, and both have been taking deeply conservative views in the early weeks of their administration.
Virginia filed that lawsuit along with Nevada and Illinois – two other states where the legislatures voted to ratify ERA after the deadlines had passed. So far, those three states are still aligned in the case, but that does not necessarily prevent them from changing their mind.
Were Virginia to abandon that side of the case, would its legislature have to vote to wipe out its ratification vote – that is, rescind it? But that’s another question pending in the Court of Appeals: can a state that once ratifies a constitutional amendment change its mind, and back off its ratification? (Five states that earlier had ratified ERA have attempted to do that, but their authority to do so is not clear.)
Last March, a federal trial judge in Washington ruled that the three states did not have a legal right to sue, because they could not show that they would suffer any legal harm now that ratification deadlines have passed. The judge, though, did not take a position in that ruling on whether a state can rescind its ratification, nor did he rule on whether Congress could act anew to revive the ERA.
With the Court of Appeals case now likely to stretch out for several more months this year, the uncertain fate of ERA will linger. A sizeable group of constitutional law teachers have sought to put pressure on the Justice Department to get on the side of ERA’s ratification, but that effort fell short when the Department issued its new opinion last month. That opinion did say, though, that Congress clearly does have the authority to take “further action regarding ratification of the ERA.”
Somewhat modestly, that formal opinion commented that the Department’s legal view “will not be the last word on the constitutional status of the ERA.”
Meanwhile, a vote has not yet been scheduled in the House of Representatives on Resolution 891. It is mostly supported by Democratic lawmakers, but does have a few Republican sponsors. Whether it would have any chance of passage in the closely divided Senate is an open question.