House Committee Advances Bill to Allow Ratification of the Equal Rights Amendment

The Equal Rights Amendment (ERA) took a small step toward becoming the 28th Amendment to the U.S. Constitution on Wednesday, as the House Judiciary Committee Democrats advanced a bill that would eliminate a controversial ratification deadline that elapsed over three decades ago.

Introduced by Judiciary Committee Chairman Jerry Nadler (D-NY), the bill (H.J.Res. 79), was passed on a party-line vote of 21-11 with Democrats in favor and Republicans opposed. House Democratic leaders haven’t indicated a timeline for a floor vote on the bill, although it could occur in the next few weeks. Given that it has the support of 218 cosponsors, including 216 Democrats and two Republicans, it would likely pass when it reaches the floor.

Why did this bill come up?

When Congress passed the ERA in 1972, it gave states a seven-year time limit to ratify the amendment. Six years into that timeline, Congress extended it by a further three years to 1982. But when the 1982 deadline arrived, the ERA had only been ratified by 35 states ― three states short of the three-fourths required to ratify an amendment.

Once the 1982 deadline elapsed, five states (Idaho, Kentucky, Nebraska, South Dakota, and Tennessee) rescinded their ratification. The ERA’s supporters in Congress reintroduced the amendment because they believed that they would have to start from scratch with a new ratification process, which quickly stalled. 

Other supporters, however, believe that to be unnecessary for a few reasons:

• Ratification time limits are a self-imposed constraint from Congress, rather than a constitutional requirement, as time limits on proposed amendments weren’t used prior to the 18th Amendment. Additionally, the ratification of the 27th Amendment in 1992 happened nearly 203 years after Congress first approved the amendment and referred it to the states.
• Efforts by states to rescind their ratification of an amendment have been rejected by courts. When several states tried to rescind the ratification of the 14th and 15th Amendments, courts upheld the initial ratifications as counting toward the Constitution’s requirement that three-fourths of the states ratify an amendment.

In 2018, the state of Illinois became the 37th state to ratify the ERA. The November 2019 elections in Virginia saw Democrats gain control of the state legislature for the upcoming 2020 session, and the incoming leaders have said they’ll take up the ERA’s ratification early next year after it failed by a single vote when it was under Republican control. If the ratification succeeds as expected, the ERA could be added to the U.S. Constitution even without the enactment of H.J.Res. 79 assuming it survives any legal challenges that arise.

What would the Equal Rights Amendment do?

The ERA is fairly straightforward and would include three provisions:

• Equality of rights couldn’t be abridged or denied by the U.S. or any state on account of sex.
• Congress would have the power to enforce the ERA by enacting appropriate legislation.
• The ERA would take effect two years after ratification.

Critics of the ERA warn that it may come with unintended consequences, such as prohibiting sex-segregated bathrooms or requiring that women participate in a future military draft if one is held.

— Eric Revell with contributions from Lorelei Yang 

(Photo Credit: Don Dughi via Wikimedia / Public Domain)