100 Years is Too Long to Wait: ERA is the 28th Amendment of the Constitution.

The U.S. is one of the few developed countries absent a guarantee of women’s equality in its Constitution. As of 2011, 35 countries had an equality provision for women in their constitution; 49 had a non-discrimination provision in their constitution for women, and 29 countries had both. While the U.S. has signed the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) it remains one of only six countries that have not ratified CEDAW (Iran, Palau, Somalia, Sudan, Tonga).  While CEDAW outlines all of the various facets of discrimination against women, mandates that the government must ensure non-discrimination in each one, and requires positive action as well as negative prohibitions, the ERA only has one simple clause. Based on the case law model in the U.S., the actual application of the law would be fleshed out over many years by legal decisions.  

American women have been working for their equality from the founding of the U.S. in 1776 when Abigail Adams wrote a letter to her husband John Adams urging him to please “remember the ladies” in the “new code of laws” because, “Remember all Men would be tyrants if they could.” Her request went unheeded.

The beginning of the American women’s suffrage movement to get the vote nationally is dated to 1848. It took 72 years before the 19^th amendment to the Constitution was passed. While vitally important, even in 1920, the women knew that voting wasn’t enough. Women, more than 51% of the population, had to have constitutional equality for the promise of “we the people” and “with liberty and justice for all” to be realized.  

Alice Paul, a lawyer and leader in the suffrage movement, wrote the first Equal Rights Amendment (ERA) in 1923, later changed to what we have today:  “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.”  The two years grace period gives states enough time to modify their own laws that might conflict with the new national amendment.  

In the short U.S. Constitution, the framers knew it would need to be amended from time to time. To amend the Constitution, both houses of Congress must first pass the amendment by a two-thirds vote. The first ERA was introduced into Congress on December 13, 1923 – 100 years ago today. Congress did not pass it until 1972. Congress put a seven-year timeline on the amendment that was later extended to ten.   

After Congress passes the amendment by two-thirds, according to Article V of the Constitution an amendment goes to the states that collectively must pass it by three-fourths. Hawaii passed it within 30 minutes and other states did so rapidly until, by the late 1970s, 35 states had ratified it – 38 states are required. When the timeline passed in 1982, no more states had ratified. Five states that had previously passed it had political power shifts and attempted to rescind their ratifications. 

Over 80% of American people thought the ERA had passed and it was out of the headlines for 35 years. In 2017, Nevada shifted power and elected a majority of women. They promptly ratified the ERA. Illinois, where the ERA was stopped in 1979, ratified in 2018 becoming the 37^th state.  By that time, most of the thirteen remaining unratified states had active ERA groups competing to become the required thirty-eighth state. Virginia won on January 20, 2020 to go down in history.   

Unfortunately, the ERA remains mired in legal limbo. In 2012 the national archivist stated that he would certify the ERA when the 38^th state ratified – as he should have since it’s a ministerial task. But by 2020, a different administration was in power. They issued a memo saying that the ratifications were not valid because of the timeline. Two lawsuits were filed by the pro-ERA side, one in Massachusetts and one in Washington, D.C. by the three attorneys general of the most recent ratifying states. The Massachusetts suit was dismissed on standing and has been appealed. The D.C. suit was dismissed based on standing with a statement in agreement with the lower court that the ERA does not need publication to become an amendment – it already became law when the 38^th state ratified it. Bills have been introduced in Congress to make it clear that the timeline is not a barrier to the implementation of the 28^th amendment.  

The Equal Rights Amendment provides a fundamental legal remedy against sex discrimination for both women and men. It guarantees that the rights affirmed by the U.S. Constitution are held equally by all citizens without regard to their sex. It requires the courts to evaluate cases based on strict scrutiny – the highest level of analysis enjoyed only by categories covered in the Constitution – race, color, national origin, and religion. It is astounding that to this day, women still fight to have equality under the law in the United States. We can never relent in the struggle for justice.