Women’s History Month: Make History By Ratifying The Equal Rights Amendment

When the 117th U. S. Congress convened, on January 21, 2021 bills with bipartisan support were introduced to remove the time limit placed upon the Equal Rights Amendment in 1972. In the U.S. Senate, Senators Lisa Murkowski (R-AK) and Ben Cardin (D-MD) introduced S.J. Res 1, and in the House of Representatives, Rep. Jackie Speier (D-CA) and Rep. Tom Reed (R-NY) introduced H.J. Res 17, which had 195 co-sponsors on the day it was introduced, demonstrating wide support for the bill.

On March 1, the first Day of Women’s History Month, Congresswoman Carolyn B. Maloney (D-NY) was joined by lead cosponsor Congressman Tom Reed (R-NY) in announcing the introduction of H.J. Res. 28, reintroducing the Equal Rights Amendment (ERA). Maloney, Reed Introduce Equal Rights Amendment (excerpt):

“It is long past time to cement gender equality in our nation’s most important text, the Constitution, once and for all. With the ERA, we secure equality under the law for women and all marginalized genders. While the last four years have shown us that we may not be able to control who is on the Supreme Court, in the White House, or in charge of Congress and local government, we can control the document they interpret and the legal parameters under which they operate,” said Congresswoman Maloney.

“For far too long, our nation has been unable to enshrine the God-given rights of equality for women in our Constitution. It is only fair that Congress do its part to clearly affirm the legal rights of all women and ensure no one is subject to discrimination or mistreatment because of their gender,” said Congressman Reed. “We remain committed to the principles and spirit of the Seneca Falls Convention and will continue to support the fight for the Equal Rights Amendment.”

[R]ep. Speier, Co-Chair of the Democratic Women’s Caucus, said “Whether it’s my bill to simply strike the arbitrary deadline for 38 states to ratify the amendment — a goal that we reached last year thanks to the great state of Virginia — or Congresswoman Maloney’s push to reset the clock and start anew, I am confident that with the Biden-Harris Administration not just on our side, but fighting for the same goal, we will affirm women’s equality in our Constitution and under the eyes of the law.”

On January 22, 2021, Congresswoman Maloney wrote to President Joe Biden and Vice President Kamala Harris requesting that they act to immediately rescind a Trump Administration legal memo [Opinion of the Office of Legal Counsel which is advisory only, and does not have the force of law] preventing the completion of the process to make the Equal Rights Amendment (ERA) the 28th Amendment to the U.S. Constitution.

The Biden administration has not yet acted on this request, causing some activists to fly off the handle, in my opinion. Wendy Murphy, adjunct professor of sexual violence law at New England Law|Boston, Time for Biden to act on ERA. She does make this salient point:

Barr’s memo said the ERA could not be added to the Constitution because a ratification deadline had expired years earlier. Scholars disagree about whether Barr is correct, and many argue the ERA’s deadline is unconstitutional because Congress placed the time limit in the amendment’s preamble, rather than in the text of the amendment itself, which means the states never had a chance to vote on it because they can only ratify amendments, not preambles. This makes the deadline invalid, scholars say, because it tips the balance of powers between the national and state governments heavily in favor of the national government, and Article V of the Constitution mandates that there be equal distribution of power when it comes to amending the Constitution.

Put another way, if Congress can dictate how long the states have to ratify a proposed amendment, then Congress has total control over the amendatory process, which violates Article V.

The courts will have to decide whether the deadline is valid, but in the meantime, the archivist is mandated to add the ERA to our Constitution now because he is not allowed to second-guess the courts. Nor is he required to obey the attorney general. He is mandated by law to publish amendments once three-fourths of the states ratify, period.

Note: Arizona never ratified the Equal Rights Amendment.

Deborah Turner at the League of Women Voters writes, Make Women’s History: Add the ERA to the Constitution:

It has been 101 years since the 19th Amendment granted women the right to vote.

It has been 98 years since the Equal Rights Amendment was first introduced in Congress.

It has been 49 years since the ERA was passed by Congress.

And it has been one year since the ERA was ratified by the required 38 states.

The journey to enshrine equal rights among the sexes in the US Constitution has been a long one. But this year the ERA is closer than ever to taking its rightful place in the supreme law of our nation.

Despite Abigail Adams’s famous advice to her husband John Adams to “remember the ladies,” he and the rest of the founders left any mention of women out of the founding documents. As a result, the U.S. Constitution does not mention women at all.

The ERA was first drafted in 1921 by Alice Paul, suffrage leader and head of the National Women’s Party. Paul didn’t believe that the 19th Amendment alone would provide equal treatment for women – and it did not. History has shown that the 19th amendment didn’t even guarantee voting rights for all women, leaving many women of color and those with limited financial status as targets of suppression and discrimination.

Paul and other suffragists feared the 19th Amendment alone would not be enough to ensure women were treated fairly, and so the ERA was conceptualized to guarantee inclusion and strengthen protections under the law.

By the time Congress passed the ERA in 1972, it had received support from leaders of both parties, multiple organizations, and persons of all walks of life. Eisenhower, Kennedy, and Nixon supported the ERA. Political powerhouses including Coretta Scott King, Alice Paul, and Shirley Chisholm lobbied to make women’s rights a major policy issue  in Congress. The grassroots movement for equal rights that some have labeled the second wave of feminism ignited the country, and, in a direct parallel to founder Carrie Chapman Catt’s “winning plan” for the 19th Amendment, the League of Women Voters took on a nationwide campaign to see the ERA ratified.

The opposition—primarily stoked by misinformation and fear of change—was fierce, however, and it wasn’t until one year ago that Virginia became the 38th and final state needed to ratify the amendment. Now it is time for Congress or the courts to eliminate the ambiguity of the arbitrary and legally questionable deadline imposed on the ERA at its passage.

EQUAL RIGHTS, ONCE AND FOR ALL

So why do we need the ERA?

It is important to recognize that inequality hurts everyone. The Equal Rights Amendment is not only for women, but for all Americans, regardless of gender identity or sex. It is a promise that our government will not pass laws or take any official action that discriminates against its people on the basis of sex. As long as this equality is not enshrined in our Constitution, there is the risk that laws can be passed to diminish the idea of equality in America.

We need the ERA because we need equal pay, fair healthcare coverage that addresses maternal mortality and coverage for caregivers, protection against gender testing laws, prevention of discrimination against LGBTQ+ persons, protections for men in occupations and roles traditionally held by women, and protection against rollbacks in women’s rights.

We need the ERA because, just as many women of color faced added barriers for voting until the Voting Rights Act, today women of color are more likely to be under-paid and discriminated against than white women. The ERA would make the Constitution prohibit discrimination on the basis of race AND sex.

But more than that, we need the ERA because our nation must close the book once and for all on the idea that equality of rights is a debatable issue.

Because a constitution is not only a set of legal protections: it is a proclamation of a nation’s values. It is time we enshrined our values in the Constitution.

The House passage of the Equality Act last week was a major step in the fight for equal human rights in this country, but a law is not the same as a constitutional amendment and is always vulnerable to reversal.

There is a critical reason our Constitution’s framers made the amendment process a difficult threshold to overcome:  the Constitution and its amendments are supreme and absolute. An amendment to the Constitution is superior to any law that is passed. It becomes a part of the bedrock of our democracy.

The ERA fulfills the promise that the Constitution originally proclaimed. It has stood up to rigorous social and legal scrutiny. It is the result of almost a century’s worth of work, decades of women who have done the heavy lifting.

This Women’s History Month, let’s make history by establishing gender equality in our Constitution, once and for all.

Radical Republican reactionaries are already responding negatively. North Dakota considers rescinding Equal Rights Amendment ratification.

Five states have previously sought to rescind ratification, Nebraska (1973), Tennessee (1974), Idaho (1977), Kentucky (1978); because thirty-eight states failed to ratify the amendment by March 31, 1979 the South Dakota Legislature rescinded its ratification of the ERA.

Article 5 speaks solely to ratification, it contains no provision as to rejection or rescission.

The history of the 14th Amendment weighs heavily against the rescission of an amendment once ratified by a state. Ratification (excerpt):

The Fourteenth Amendment was ratified by the legislatures of Ohio and New Jersey, both of which subsequently passed rescinding resolutions. Contemporaneously, the legislatures of Georgia, North Carolina, and South Carolina rejected ratification resolutions. Pursuant to the Act of March 2, 1867, the governments of those states were reconstituted and the new legislatures ratified. Thus, there were presented both the question of the validity of a withdrawal and the question of the validity of a ratification following rejection. Congress requested the Secretary of State to report on the number of states ratifying the proposal, and the Secretary’s response specifically noted the actions of the Ohio and New Jersey legislatures. The Secretary then issued a proclamation reciting that 29 states, including the two that had rescinded and the three which had ratified after first rejecting, had ratified, which was one more than the necessary three-fourths. He noted the attempted withdrawal of Ohio and New Jersey and observed that it was doubtful whether such attempts were effectual in withdrawing consent. He therefore certified the amendment to be in force if the rescissions by Ohio and New Jersey were invalid. The next day Congress adopted a resolution listing all 29 states, including Ohio and New Jersey, as having ratified and concluded that the ratification process was completed. The Secretary of State then proclaimed the Amendment as part of the Constitution.

In Coleman v. Miller,307 U.S. 433, 488–50 (1939), the congressional action was interpreted as going directly to the merits of withdrawal after ratification and of ratification after rejection. “Thus, the political departments of the Government dealt with the effect of previous rejection and of attempted withdrawal and determined that both were ineffectual in the presence of an actual ratification.”

Although rescission was hotly debated with respect to the Equal Rights Amendment, the failure of ratification meant that nothing definitive emerged from the debate. The questions that must be resolved are whether the matter is justiciable, that is, whether under the political question doctrine resolution of the issue is committed exclusively to Congress, and whether there is judicial review of what Congress’s power is in respect to deciding the matter of rescission. The Fourteenth Amendment precedent and Coleman v. Miller combine to suggest that resolution is a political question committed to Congress, but the issue is not settled.

* * *

Article V may be read to contain a governing constitutional principle, however. Thus, it can be argued that, as written, the provision contains only language respecting ratification and that, inexorably, once a state acts favorably on a resolution of ratification it has exhausted its jurisdiction over the subject and cannot rescind, nor can Congress even authorize a state to rescind. This conclusion is premised on Madison’s argument that a state may not ratify conditionally, that it must adopt “in toto and for ever.”

Democrats have the votes in Congress to pass the bipartisan H.J. Res. 17 and S.J. Res 1 to remove the deadline for ratification of the Equal Rights Amendment. The Biden administration can rescind the advisory Opinion of the Office of Legal Counsel and direct the Archivist to publish the Equal Rights Amendment. This can all be completed before the end of this month. Let’s get this done, finally.

Contact your senators and member of Congress in support of these bills, and contact the White House.




1 thought on “Women’s History Month: Make History By Ratifying The Equal Rights Amendment”

  1. Judge Rudolph Contreras of the federal district court in Washington, D.C. (appointed by President Obama) ruled late Friday that recent state votes to ratify the proposed Equal Rights Amendment came too late to make it part of the Constitution. “Federal judge says states acted too late to ratify Equal Rights Amendment”, https://www.nbcnews.com/politics/politics-news/federal-judge-says-states-acted-too-late-ratify-equal-rights-n1259783?cid=sm_npd_nn_tw_np

    Along with Illinois and Nevada, Virginia argued that the Constitution does not give Congress any power to set a time limit on the ratification process. They also argued that the deadline had no force of law, since it was placed only in the amendment’s proposing clause, not in the actual text that the states voted on.

    But Judge Rudolph Contreras of the federal district court in Washington, D.C., said the vote “came after both the original and extended deadlines that Congress attached to the ERA.” A ratification deadline in the introduction “is just as effective as one in the text of a proposed amendment.”

    The states now have the option of appealing the ruling. The case is likely headed to the U.S. Supreme Court.

    Virginia’s attorney general, Mark Herring, said he was considering his options, including filing an appeal.

    “The women of this country have waited over two centuries to be afforded equal protections under this country’s founding document, and with today’s decision they will now be forced to wait even longer. That’s just wrong,” he said.

    Judge Contreras did not rule on a separate issue involving five states that originally voted to ratify the amendment but then voted to rescind their approval.

    Judge Contreras said his ruling expressed no opinion on the merits of the ERA as a matter of policy. “It merely enforces a procedural time limit that Congress set when proposing the amendment.”

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