The nation’s largest legal organization, the American Bar Association, moved this week to use its influence to try to put into the U.S. Constitution a strong guarantee of equal rights for women.

In a vote at the annual meeting in Chicago of the ABA’s policymaking arm, the House of Delegates, the lawyers’ group approved a nationwide campaign to make the Equal Rights Amendment the Constitution’s 28th Amendment.  That would be done without any need for further action by Congress or by the states, but by a simple declaration by a federal government official, the National Archivist – the keeper of the federal government’s records.

If successful, this approach could bypass the courts; lawsuits have not worked very well so far.  The courthouse door has not been closed entirely, remaining ajar.

The Bar Association’s new plan is based upon three legal propositions:

• That 38 states, the necessary minimum number, have already ratified the ERA.
• That no state will be allowed to withdraw its earlier ratifying vote – as six states have attempted to do.
• And, that the Constitution does not allow Congress to put any time limit on when a proposed amendment must be ratified in order to complete the process specified by the Constitution’s Article V.

America has been considering such an amendment since it was first introduced in Congress 101 years ago, and the idea has been pronounced dead repeatedly, only to have revival efforts come up again and again.  The Bar Association has been behind the ERA proposal for years, but the action this week marked the first time that it had endorsed the swiftest and easiest way to make it a constitutional reality.

Some constitutional analysts have suggested that the ERA could be successful only if the amendment and ratification process were to begin all over again, in Congress.  But with Congress now deeply divided by partisan rivalry, getting two-thirds approval in both houses of Congress seems well out of reach, even if 38 states would now be willing to ratify it.

The idea of giving women a solid constitutional guarantee of equality has been widely popular across the nation; one widely quoted poll showed that ERA had the support of 74 percent of those polled.  Its recent popularity appears to have been enhanced by the rise of the “Me Too” movement, an energetic effort to treat women equally in broad sectors of American life.

Here is what the amendment would say if it became part of the Constitution:

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

That would be stronger than any existing federal or state law that seeks to assure legal equality for women.  And, while the Supreme Court has extended to both sexes the guarantee of legal equality under the existing 14th Amendment, the Court has provided less protection against discrimination based on sex than it has for race, ethnic identity or nation of origin.  ERA would end that disparity, and presumably would also provide full equality for individuals’ sexual orientation or gender identity.

Although the legal questions surrounding the fate of ERA are among the most serious that have ever confronted the nation, the debate has been especially intense over the past 42 years – that is, since June 1982, with the expiration of a time limit that Congress had imposed on ratification of that amendment.  Congress had revived the pro-ERA effort beginning in 1971 after the issue had lain dormant for generations.

When that time to ratify ran out in 1982, ERA had been approved by 35 states – three short of the minimum number needed. The effort then remained mostly stalled until early 2017, when worldwide “Women’s Marches” occurred, leading soon to the “Me Too” movement and its robust campaign for women’s equality.

Almost certainly as a result of that movement, three other states soon voted to ratify ERA: Nevada in 2017, Illinois in 2018 and Virginia in 2020.  Those states were acting on their perception that Congress did not have constitutional power to impose any deadline on states’ ratification.

One reason that the states felt that way was that the 27th Amendment, a limitation on pay raises for members of Congress, had been ratified in 1992 – an astonishing 103 years after it had been sent to the States by Congress as part of the original Bill of Rights in 1789.  The argument surrounding the ratification of the 27th Amendment is a central part of the Bar Association’s position in favor of states’ power to act on amendments without a time limit.

If ratification by the three states in 2017, 2018 and 2020 were to be counted, of course, ERA would have 38 states’ approval.  The only action that would be needed, after that, to make ERA the 28th Amendment would be its formal proclamation by the National Archivist.  A federal law imposes that duty on the Archivist, and the Bar Association argues that the Archivist has no discretion to refuse.  That claim, too, remains an open question.

This historic controversy is further complicated by the fact that six states that earlier had voted to ratify ERA changed their minds and voted to withdraw their approval.  The Bar Association has joined other pro-ERA groups in contending that, once a state has ratified a proposed amendment, that is final and cannot be revoked.  Under that view, the only power the Constitution gives to the states is to opt to ratify, or not – period.  That, too, is an unresolved question.

Among the other issues that are regularly debated about the fate of ERA, there is even debate about whether the Supreme Court has answered the constitutional questions.  The Court issued decisions on the ratification process in 1921 and 1939, dealing with the power of Congress to put a time limit on states’ ratification, but both decisions are opaque enough to leave their actual meaning unclear.  The Court in 1982 bypassed a chance to rule on the power of states to withdraw their ratification of an amendment, leaving that unsettled.

There have been two recent attempts to draw the federal courts back into the controversy, aiming again to get conclusive answers to the lingering constitutional claims over ERA.  Each of those, however, ended without complete answers, suggesting anew that the courts are not a promising route for ERA’s proponents.

A national women’s rights group, Equal Means Equal, joined by a pro-ERA student organization named The Yellow Roses, tried to appeal to the Supreme Court four years ago after lower courts had rejected for procedural reasons their lawsuit.  That case sought to force the National Archivist to declare ERA to be ratified.  After the Justices chose to simply bypass that appeal, the case ended when a federal appeals court ruled that neither of those groups could show that they would experience any injury if the Archivist didn’t act.

A second and even more recent lawsuit seemed more promising: it was filed by the three states that had ratified ERA after the expiration of the deadline set by Congress: Illinois, Nevada and Virginia.  (Along the way, Virginia dropped out, but the other two persisted.)

Those states believed they had a stronger claim that they had been injured by the Archivist’s failure to promulgate ERA, since that failure frustrated their use of the power to ratify that the Constitution gives to states.  A federal trial judge made two alternative rulings: first, that the Archivist’s refusal to act did no harm to the states because the Archivist had such a minimal role in the ratification process that the states had no legal claim to make, and, second, that the time limit set by Congress  did bar any further approval by any state.

Illinois and Nevada then took the case to a federal appeals court.  That court opted to judge the case based upon whether the two states had offered “clear and indisputable” proof that they were entitled to a court order directing the Archivist to act.  In the end, that court found the states had not made their case, so ordered the case dismissed.  It was not a definitive ruling on the core constitutional questions.  The two states then gave up, and opted not to try to take the case to the Supreme Court.

There is no reason, at this point, to assume that the supporters of ERA as the 28th Amendment will give up their efforts.  Every year, proponents of ERA attempt to get some action started in Congress, but those efforts have proven as futile as filing a lawsuit has.

Given that futility, it was no surprise that the Bar Association this week did not focus on a return to the courts.  Instead, it called for a nationwide campaign of lobbying and public education to make the legal arguments that the Archivist must act now to implement ERA.

The ABA resolution suggested that governments at all levels and all bar associations join in that campaign, to push the President, Vice President and the Archivist to “publish, without delay, the ERA as the 28th Amendment.”

As the most recent lawsuit to achieve that goal unfolded, the Trump Administration and then the Biden Administration opposed that simplest of approaches.  Conceivably, the outcome of this year’s presidential election may determine whether it makes sense, in the near term at least, for ERA’s legions of advocates to keep trying.