The Strange Case of the ERA

Constitutional amendments have a checkered history in American politics. Some are upheld as the most important and sacred pieces of our law, others are obscure, and one was even repealed. However, perhaps no case is as strange (or controversial) as one particular proposed constitutional amendment called the Equal Rights Amendment (ERA).

In this post, I'll discuss the history of the ERA, what derailed its once-promising ratification effort, and where the amendment stands today.

Let's examine the strange case of the ERA.

Background

The idea of a constitutional amendment that explicitly guaranteed equal legal rights for men and women has been kicked around in one form or another since at least the 1920s. With the passage of the Nineteenth Amendment in 1920, women won the right to vote in the United States, and immediately discussion began brewing that it didn't go far enough: An additional amendment was needed to guarantee women equal rights in all legal matters.

Over the next few decades, support for such an amendment gradually began to build. Similar amendments were introduced in every congressional session between 1921 and 1972, typically being defeated in committee each time. Various political interest groups and labor unions discussed, debated, and fought amongst each other over the issue, disagreeing about whether it would actually benefit women and/or the country as a whole and whether it was even needed. 

Rep. Martha W. Griffiths (D-MI), who introduced the ERA in 1971 and is often called "the mother of the Equal Rights Amendment".

However, the turning point came in the 1960s where, like in the 1920s, support for an equal rights amendment was fueled by the passage of another law, this time the Civil Rights Act. Finally, in October 1971, with the backing of numerous women's interest groups and labor unions, the ERA as we know it today was approved by the United States House of Representatives by a vote of 354-24 (with 51 not voting). This was soon followed by the passage of the ERA in the United States Senate in March 1972 by a vote of 84-8 (with 7 not voting). President Richard Nixon then immediately endorsed the ERA upon its passage by Congress.

With overwhelming bipartisan support in both houses of Congress and an endorsement by the President, the road to ratification for the ERA seemed clear.

Or was it?

Road to Ratification

For a constitutional amendment to be ratified, it not only needs to be approved by Congress, but also ratified by a 2/3 majority of state legislatures. Beginning with its passage by the Senate in March 1972, the ERA was placed in the hands of the states with a seven-year deadline (March 22, 1979) for 38 states to ratify it.

By the end of the month, 8 states had ratified the ERA, and by the end of April that number was up to 16. Another 4 ratified by the end of 1972, bringing the total up to 22, and another 8 ratified by the end of March 1973 for a total of 30 of the required 38 ratifications.

However, after the 30th ratification, momentum began to ebb. Despite gaining 30 ratifications in its first year, the ERA managed to acquire only 5 more ratifications over the next 4 years, bringing to total up to 35, three short of the 38 required. To add to the ERA's woes, three of the states that had originally ratified the ERA had since voted to rescind their ratification (more on that later).

By the time the ratification deadline hit in March 1979, no additional states had voted to ratify the ERA, and two more had voted to rescind their ratification (Congress attempted to extend the deadline by 3 years to June 30, 1982, but this extension was struck down by the Supreme Court in NOW v. Idaho, a decision which also upheld state rescission). At that time, the ERA, an amendment seemingly destined for ratification with broad political support, was all but dead in the water.

How did this happen? Why did states stop ratifying the ERA while others actually voted to rescind their ratification? It turns out, support for the ERA was far from unanimous.

Opposition

Though small in number, there were influential groups and individuals (even women) who opposed the ERA from the beginning.

Phyllis Schlafly, a conservative activist from Illinois who campaigned against the ERA

Conservative activists, such as Phyllis Schlafly of Illinois, argued that depending on how the ERA was interpreted, women could stand to lose legal advantages that they currently enjoyed over men, including preference in regard to alimony and child custody in divorce cases, as well as exemption from the draft. Furthermore, it was argued that with the passage of the Equal Pay Act in 1963 and the Civil Rights Act in 1964, there were no remaining practical legal advantages to be gained for women by the passage of the ERA.

The campaign against the ERA was particularly effective. By 1973, public support for the ERA in states that had yet to ratify fell below 50%, as large numbers of working-class women turned against the amendment. Additionally, by the ratification deadline in 1979, a total of five states that had ratified the ERA voted to rescind their ratification.

At the 1980 Republican National Convention, the Republican Party officially dropped support for the ERA from the party platform. Since bipartisan support is a virtual necessity for the ratification of any constitutional amendment, the RNC's decision to oppose the ERA was effectively the death knell for the ratification effort.

The ERA Today

In the years since the ERA's defeat, there has been an ongoing effort by the amendment's supporters to revive the ratification campaign. These supporters argue that 

1. Congress can retroactively remove the ratification deadline and, provided an additional three states vote to ratify the ERA, it can still become law
2. Because the Constitution specifies no mechanism for states to rescind amendment ratification, the rescissions of the 5 states that did so are null and void (contrary to the Supreme Court's ruling in NOW v. Idaho).

Map of where states stand on ERA ratification.
Pink = Ratified
Purple = Ratified after deadline
Orange = Ratified, but then rescinded
Green = Partially ratified
Blue = Not ratified

Since 1979, three additional states (Nevada, Illinois, and Virginia) have voted to ratify the ERA. Additionally, numerous bills have been introduced in Congress to remove the ratification deadline, the most recent of which passed in the House of Representatives in 2020 by a vote of 232-183 (it has yet to be introduced in the Senate).

However, even if the ratification deadline is removed, 5 states voted to rescind their ratification, which would bring the running total of state ratifications back down to 33. Debate over whether these rescissions are valid has raged for years, despite the ruling in NOW v. Idaho. Even many ERA supporters admit that if Congress is allowed to retroactively change the rules for ratification, it only makes sense for the decision of the states who changed their position on ratification be respected.

Among those who held this view was the late liberal Supreme Court justice Ruth Bader Ginsburg, who suggested that supporters of the ERA would be better off by starting the effort over from scratch rather than trying to ride on the coattails of the 1972 bill. Ginsburg said that "If you count a latecomer on the plus side, how can you disregard states that said 'We've changed our minds?'".

My Take

Personally, I question the need for the ERA. Virtually every practical legal protection women can ask for is already enshrined in law in one way or another (especially in the context of the Civil Rights Act), meaning that the ERA would be more symbolic than anything.

Furthermore, I agree with the late Justice Ginsberg that proponents would be better off starting anew. If you're going to retroactively change the rules regarding ratification, then you need to allow states to retroactively change their votes.

After all, fair is fair.