The Return of the Equal Rights Amendment

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The Return of the Equal Rights Amendment

Ellie Davis

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In April of 2018, Illinois became the thirty-seventh state to ratify what was thought to be the long-dead proposed amendment to the Constitution, The Equal Rights Amendment (ERA). First drafted in 1923 by the National Women’s party, the ERA states that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

Despite these suffragette’s best efforts, the proposed amendment was not introduced into congress until the late 1960s, following a greater cultural trend focused on civil rights and activism. This resurgence in the women’s rights movement is commonly referred to as the second wave of feminism, which brought a greater focus towards reproductive rights and acceptance of women within the workforce. 

Almost fifty years later, in 1971, the ERA won the requisite two-thirds majority vote from the U.S. House of Representatives — the same happened in the Senate the following year. From there, the amendment moved on to be ratified by the necessary thirty-eight states, after which it would officially become a part of the Constitution — a process that was optimistically given a time window of seven years. 

Hawaii was the first state to ratify the amendment in 1972. In the same year, thirty states followed, including Pennsylvania. By the end of 1977, thirty-five states had approved the ERA. With hopes that the final three states would ratify the amendment, Congress chose to extend the original deadline of 1979 by three years. Unbeknownst to the legislators, it would nearly be another forty years until another State would touch the ERA.

It was not until 2017 that Nevada became the thirty-sixth state to ratify the amendment, when the #MeToo movement of 2016 that shed light on sexual harassment revitalized the feminist movement. Most recently, in April of 2019, Illinois became the thirty-seventh state to pass the amendment, leaving just one more to go after decades of tribulation.

The abrupt halt of attention shown towards the ERA was no mistake nor coincidence; after the amendment was approved by congress, various political organizations were born with the lone goal of stopping the ERA. Phyllis Schlafly, the most famous anti-ERA advocate by far, founded the STOP ERA organization — an acronym for Stop Taking Our Privileges. Some of the arguments against the ERA, per se, were not ill-intentioned. For one, Schlafly and others were afraid that there would no longer be the same economic security for widows or women of divorce if the ERA was approved. They equally feared that there would no longer be exonerations for women from military duty, separate bathrooms for men and women, more abortion rights, and legalized same sex marriage. Most impactful was the STOP ERA organization’s ability to create an entire ethos surrounding the idea of an Equal Rights Amendment as a radical and crazy left-wing-feminist goal that has no place in America. Through playing off of the fear that surrounds change, they were able to silence the progress of the ERA for decades. 

In recent debates about the ERA, the more commonly cited argument against it is that the bill was always irrelevant and would not add anything to the Constitution because, as already stated in the 14th amendment, “all persons” have “equal protection of the laws.” After all, many of the changes that were threatened by Schlafly have happened anyway: same sex marriage, women in combat, and unisex bathrooms, to name a few. If all this progress happened anyway, the twenty-first century woman should not need the ERA.

Yet, America still is ranked as the forty-ninth country in the world when it comes to gender equality, according to the World Economic Forum. Every Constitution created since the end of World War II has their own version of the ERA, something to say that women are citizens of equal stature. While the Fourteenth Amendment has allowed for some progress, only the ERA would offer an overriding guarantee of equal protection for women. The goal of the amendment was to anchor women’s rights more strongly in the Constitution by giving judges a language through which they could discuss equality. This new language would allow the gaps to be filled in where women are below the line of equality — particularly applicable in areas of violence against women, sexaul harassment and unequal pay. Especially now, in the wake of passing many strict abortion regulations, the feeling of need for the ERA is heightening. If the ERA were in place, it would allow for far less free interpretation of the constitution than the fourteenth amendment permits. 

At this point, much of the push for the ERA is out of principle: as Justice Ginsburg articulated, “I would like to be able to take out my pocket Constitution and say that the equal citizenship stature of men and women is a fundamental tenet of our society like free speech.” On the other side of the political spectrum, Justice Scalia acknowledged that even though “[the Constitution] certainly does not require discrimination on the basis of sex, the only issue is whether it prohibits it. It doesn’t.” The path to having the ERA at last become the Twenty-Eighth Amendment to the Constitution, however, is not as straightforward as one might hope. 

The first hurdle in place is the fact that five out of the thirty-five states that initially supported the amendment chose to rescind their ratifications. Right now, if the ERA gets approval from a thirty-eighth state, it’s not entirely clear what will happen. The precedent for this situation is the Fourteenth Amendment; two states chose to rescind their approval, but congress disregarded their actions, claiming that the states had no right to do so. Citing Article Five of the Constitution, ratification is the only step of the process mentioned that involves a state: once they do so, their position cannot be changed. Because of the standard set by the 14th amendment, we can only assume that the five states that rescinded their ratifications will be disregarded.

Another issue is that  the deadline for the ERA has already expired — forty years ago. Thus, if it is approved by one more state, Congress will have to retroactively extend the deadline of the ERA, because Illinois, Nevada, and what will be the final state will have ratified the Amendment after 1982. Again, looking at precedent, there have been other amendments, such as the Twenty Seventh, that have been ratified literally centuries after they were first approved by congress, but without a deadline ever having been set. The supreme court has specified that when an amendment is proposed to the Constitution there is no requirement for a deadline, but there can be one. For ERA supporters, the hope lies in the fact that Congress has already extended the deadline once before from 1979 to 1982. If legislature did this once before, what is stopping them from extending the time frame once again — this time retroactively? 

Once the five states that chose to take back their ratifications are disregarded, and the deadline is once again extended, there is still the issue of getting a final state to ratify the amendment to reach the two thirds majority. This year, in January, Virginia became agonizingly close to approving the ERA, with it being passed in the state Senate but not the House. The two states with the greatest promise are Georgia and Arizona, where recent turnover in their state legislatures could lead to new possibilities for the ERA. But, for now, we are faced with waiting on the edge of our seats, anticipating the end of a century long struggle.