The Equal Rights Amendment: What’s Next

The following was written by Jay Berman (we are not related by DNA but by friendship) who served as Director of Legislative Affairs for Senator Birch Bayh, the lead Senate sponsor of the ERA amendment at the time of its passage.

The Democratic victory in capturing majorities in both Houses of the Virginia Legislature have led some to confidently predict that the ERA will be quickly ratified and thus the requisite 38th state will put the Amendment over the top and into the Constitution. Bills have already been pre-filed in both Houses and, yes, it will be ratified but will the Archivist of the United States certify it as the 28th Amendment. Not likely.

Far too many issues have arisen since Congress sent the Equal Rights Amendment to the states for ratification in 1972. Ratification of ERA in Virginia, then, is really the long overdue new beginning of the struggle to enshrine the Amendment into the Constitution, not the end result and certainly not a guaranteed outcome at all.

Let’s back up and see how we got to this pivotal point, nearly 50 years after Congress first passed it thanks to the efforts of Congresswoman Martha Griffiths of Michigan and Senator Birch Bayh of Indiana and with a statement of support from President Richard Nixon (even though the President has no role to play in the process).

What was originally intended to be the 27th Amendment passed Congress in 1972 with overwhelming majorities in both Houses and was sent to the states for ratification with confidence that it would be approved quickly. It was then, as it is now, according to every opinion poll overwhelmingly popular. More than 80% supported it and more than 80% not only still support it but believe it is already part of the Constitution.

The Amendment had an introductory clause stipulating that the period for ratification was 7 years, a typical term for the more recent Amendments but not a constitutional requirement. Some of those Amendments included the ratification period in the body of the Amendment, the Equal Rights Amendment did not. More about that later.

In the first few years after passage, state ratification moved along at a brisk pace—until Phyllis Schlafly assumed the role of fly in the ointment. She masterminded a brilliant campaign to stop ratification and, as she liked to say, keep women in the kitchen. That contrasted with the slogan made popular by the National Organization of Women that a woman’s place was in the House and the Senate.

As ratification slowed, and the deadline loomed, Congress took the unusual step of extending the original deadline from 1979 to 1982. Unfortunately, the process had actually come to a halt in 1978, with 35 states having ratified—three short and not a single state ratified in the three-year extension. Phyllis Schlafly had won—or so it seemed.

The ERA remained in limbo from 1982 until 2017 when Nevada, thanks to the heroic efforts of State Senator Pat Spearman, ratified as part of an effort devised by supporters of ERA known as the “three state strategy.” Simply put, add three more states to the existing 35 and have Congress repeal the time limit. In 2018, Illinois followed suit and so we entered 2019 with a one state strategy.

In 2019, the comatose ERA looked primed to get to 38 as Virginia, North Carolina, Florida and a number of other states sought to become the necessary final vote. Pretty dramatic but not nearly as dramatic as all the states other than Virginia having failed, we were down to one. By one vote, Republicans in Virginia kept it from getting out of committee and onto the floor.

So here we are today and how fitting that Virginia is back in the batter’s box and looks ready to ratify. It is even more ironic that it was an incident in Virginia many years ago that led Senator Bayh to champion both the Equal Rights Amendment and Title IX. It centered around the fact that Marvella Bayh had been rejected by the University of Virginia on the basis of sex.

We are here awaiting that momentous vote in Virginia, which will surely be a rallying cry for a long delayed Equal Rights Amendment, but where is here?

That vote will trigger an emotion filled debate as to whether the ERA has met the ratification test.

In the years after Congressional passage, actually from 1977 when Indiana became the 35th state to ratify and 2017 when Nevada ratified, 5 states took actions to rescind or nullify their earlier ratifications.

Rescinded, really? Can a state rescind? The Constitution makes no provision for rescission, so are we at 37 or at 32. Many proponents of ERA argue that in the absence of any specific constitutional language, rescission is not legally binding, and they further point to the constitutional debates, which seem to indicate that the Framers thought a state ratification was immutable. And, historically, when states have attempted to rescind their ratifications of the 14th Amendment, the effort came to naught. It simply was not recognized.

To complete the three-state strategy, ERA supporters are championing a congressional effort to remove any time limits on ratification. In the House, Representative Jackie Speier of California has sponsored a bill that just recently passed the Judiciary Committee and could be on the House floor for a vote next week. It has 223 cosponsors, making passage very likely. A similar effort in the Senate, led by Senator Ben Cardin of Maryland and Senator Lisa Murkowski of Alaska, is pending in the Senate Judiciary Committee. That effort is more problematic. Hello Lindsay Graham and Mitch McConnell.

What is also at issue is whether Congress has the ability to repeal the deadline and have that repeal apply retroactively. If Virginia ratifies before Congress has voted to remove the existing 1982 deadline, is that a valid ratification. The same is true of Nevada and Illinois.

And, by the way, is a time limit that was not in the body of the ERA that Congress sent to the states for ratification a valid requirement. The states ratified the Amendment itself, not the preamble that included the time limit. Why was the time limit in the preamble, not the actual text? I wish I could remember.

As you can see, the three-state strategy is a lot more complicated than having Virginia ratify. However, nothing happens unless and until Virginia does. Then the questions not only get asked, they will be answered.

Or, alternatively, why not just start de novo, a new constitutional amendment, with an extended deadline or no deadline at all. Yes, that requires a two-thirds vote in the House and Senate and three fourths of the state legislatures. What are the prospects for that? You guessed it, both very time consuming and very problematic politically.

Where does that leave us, those of us who believe strongly that ERA should be part of the US Constitution—in all likelihood, at the steps of the Supreme Court.

Two final observations. While it is indeed disheartening that ERA has been stalled all these years, it is so appropriate that this should be playing out in 2020, exactly a century after the passage of the 19th Amendment. Secondly, what a great and deserving gift it would be for The Notorious RBG to see it happen in her lifetime. Like her, I would like to say to my granddaughters, there is an Equal Rights Amendment in the United States Constitution—at long last.