Not Your Grandmother’s ERA: Why Current Equal Rights Amendment Strategies Will Fail

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Not Your Grandmother’s ERA: Why Current Equal Rights Amendment Strategies Will Fail

October 26, 2021 About an hour read Download Report
jippingt
Senior Legal Fellow, Center for Legal and Judicial Studies
Thomas is a senior legal fellow for the Edwin Meese III Center for Legal and Judicial Studies.

Summary

When the Equal Rights Amendment (ERA) was born a century ago, supporters claimed that men and women would never be treated equally without it. Legislatures, however, have eliminated discriminations—and even the late Justice Ruth Bader Ginsburg saw “no practical difference” between the ERA and how the Supreme Court has interpreted the Fourteenth Amendment. Each of three current ERA strategies will fail. First, the ERA that Congress proposed in 1972 cannot be ratified because its deadline expired. Second, proposing the original ERA again will fail because its risks far outweigh any potential benefits. Third, a radical new ERA, with a different concept of rights, has been introduced to promote an agenda that includes unrestricted abortion and LGBT+ policies.

Key Takeaways

The original ERA’s objective of legal equality between men and women has been achieved by both legislatures and courts without the ERA itself.

The 1972 ERA proposed by Congress failed because the risk of its use for a different agenda far outweighed any remaining potential benefit.

None of the current strategies to promote the ERA will succeed because the 1972 ERA can no longer be ratified—and because the new ERA is even more radical.

On March 22, 1972, after five decades of controversy, dozens of hearings, and more than 1,000 resolutions,REF the U.S. Senate followed the House of Representatives by approving the Equal Rights Amendment (ERA) and sending it to the states for possible ratification. It read: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. The Congress shall have power to enforce this article by appropriate legislation.”

The 1972 ERA had a seven-year ratification deadline, a feature of many resolutions proposing constitutional amendments including eight that are today part of the Constitution. Resolutions to introduce the ERA began to include a ratification deadline in the 1940s—and supporters said that a seven-year deadline was “customary” and would be “perfectly all right.”REF The National Woman’s Party (NWP), which originally drafted and had long promoted the ERA, said that supporters would have no objection to “a reasonable time limitation in which the amendment should be ratified.”REF

This position by ERA supporters had not changed by January 1971 when Representative Martha Griffiths (D–MI) introduced House Joint Resolution 208,REF which Congress would pass to formally propose the ERA. The National Federation of Business and Professional Women’s Clubs, for example, acknowledged that a ratification deadline would “prevent indefinite procrastination,”REF and the Women’s Equity Action League agreed with Griffiths that a deadline was a “minor nonsubstantive” addition.REF While Griffiths said that seven years was “ample,” she predicted that the states would ratify the ERA “in record time.”REF

She was wrong. While 30 state legislatures passed resolutions ratifying the 1972 ERA within a year, only five more did so by the deadline—and five of those ratifying states rescinded their approval.REF Even with 39 months added by a congressional resolution, the ratification tally stayed at 35 states and five rescissions—short of the 38 needed for ratification. The Congressional Research Service has repeatedly acknowledged that as a result, “the ERA formally died on June 30, 1982.”REF

Supporters of the ERA have responded to this failure with three strategies.

  1. They have tried to resuscitate the 1972 ERA—as if it were still pending before the states—with the goal of completing its ratification process.
  2. They have introduced new resolutions with the goal of once again proposing the original ERA.
  3. They have introduced resolutions with the goal of proposing a new ERA that would use a new method of enforcement to implement a novel concept of “equality.”

This Legal Memorandum evaluates these strategies and explains why they will fail.

Strategy No. 1: Resuscitate the 1972 Equal Rights Amendment

In 1921, two years before the first ERA resolution was introduced in Congress, the Supreme Court of the United States upheld Congress’s authority, “keeping within reasonable limits, to fix a definite period for the ratification”REF of a proposed constitutional amendment. Fifty years later, after the Senate failed to approve an ERA resolution that lacked a deadline, Representative Griffiths agreed to add one in order to “gain united support for the amendment.”REF Both houses of Congress then overwhelmingly approved the 1972 ERA.REF

The validity of the 1972 ERA’s ratification deadline was unquestioned, including by ERA supporters. In April 1977, while the measure was still pending before the states, the U.S. Commission on Civil Rights published a report titled Sex Bias in the U.S. Code, co-authored by then-Professor Ruth Bader Ginsburg.REF The report explained that ratification of the ERA by the requisite number of states “must occur within 7 years” of its March 1972REF proposal by Congress and that it would become part of the Constitution only if ratification “is completed by 1979.”REF

The last state to ratify the 1972 ERA was Indiana in January 1977. Later that year, fearing that the number of ratifying states would fall short, Representative Elizabeth Holtzman (D–NY) introduced a resolution to extend the ratification deadline until June 30, 1982. While Congress had previously set a ratification deadline when proposing a constitutional amendment, it had never attempted to extend one. After extensive Senate and House hearings,REF both chambers passed the resolution, but by far less than the Constitution’s two-thirds threshold for proposing an amendment.

Although controversial, this effort revealed ERA supporters’ recognition that, like the original deadline, the extended deadline of June 30, 1982, was binding. The President’s Advisory Committee for Women’s 1980 report, for example, observed that three more states “must ratify the ERA by that date if it is to become an amendment to the Constitution.”REF Five days before the extended deadline, The Washington Post reported that the National Organization for Women “concede[d] defeat” and “officially ended its…battle to win ratification of the Equal Rights Amendment.”REF

That position changed for an unlikely reason. In May 1992, more than 200 years after it was proposed, the so-called Madison Amendment became part of the Constitution when the three-fourths ratification threshold was finally reached.REF Some ERA supporters suggested that if two centuries was not too long for the Madison Amendment, two decades should not be too long for the 1972 ERA. Insisting that the 35 ratifications—but not the five rescissions—remained valid, they launched the “three-state strategy”REF to finish the ratification process. Representative Robert Andrews (D–NJ) took the first step in 1994 by introducing a resolution that would require the House to “take any legislative action necessary to verify the ratification of the Equal Rights Amendment” when “legislatures of an additional three States” ratify it.REF

Three scholars outlined the legal foundation for the three-state strategy in a 1997 article, making two deeply flawed arguments.

First, they argued that the ERA is “properly before the states for ratification in light of the recent ratification of the Madison Amendment.”REF A proposed constitutional amendment, however, remains pending before the states until three-fourths of the states ratify it or until a ratification deadline passes, whichever comes first. The Madison Amendment and the 1972 ERA, therefore, could not have been more different. The Madison Amendment remained pending before the states because it had no ratification deadline. The 1972 ERA, by contrast, was no longer pending before the states the moment its deadline passed with insufficient ratifications.

Second, these scholars argued that the 1972 ERA’s ratification deadline was invalid because it appeared in the resolution’s proposing clause rather than in the text of the amendment itself. Congress, they claimed, has only the power to “impose reasonable time limits within the text of an amendment,”REF rendering a deadline in the proposing clause “inconsequential.”REF The idea that the validity of a ratification deadline depends on its location within the joint resolution proposing an amendment, however, was completely unknown before the 1990s. Congress has proposed, and the states have ratified, amendments with a deadline in either location. The Eighteenth and the Twentieth through Twenty-Second Amendments, for example, have seven-year ratification deadlines in their text, while the deadlines for the Twenty-Third through Twenty-Sixth Amendments appeared in the resolution’s proposing clauses. The House’s practical reason for considering the switch was simply to avoid “unnecessary cluttering up of the Constitution,”REF and the change went practically unnoticed. “The House report [on the proposed Twenty-Third Amendment] did not note that for the first time Congress had shifted the seven-year limit from the text of the amendment to the [proposing clause]. Similarly, neither the House nor Senate debates on the [Twenty-Third through Twenty-Sixth] amendments observed the fact that the seven-year limitation had shifted.”REF

ERA supporters’ claim that a ratification deadline in a resolution’s proposing clause “is not a part of the amendment ratified by the States”REF misconstrues the action that Congress and state legislatures take when proposing and ratifying constitutional amendments. They do not vote on an amendment’s text in isolation, but on a resolution that includes that text and a proposing clause. In 25 states, the legislature adopted a ratification resolution that “quoted H.J. Res. 208 in its entirety, including the language referring to the seven year ratification period.”REF Five other states adopted resolutions that “did not quote H.J. Res. 208 in its entirety, but during the ratification process included reference to the seven year time limit for ratification.”REF

Since a ratification deadline’s location has no bearing on its validity, the only issue is whether Congress had authority to set a ratification deadline when it proposed the 1972 ERA. The only federal court to directly address the issue, in litigation brought by Idaho and Arizona, concluded that Congress had authority to set, but not to extend, the original deadline.REF The Supreme Court dismissed the case “as moot” after “consideration of the memorandum”REF by the Acting U.S. Solicitor General explaining that “the Amendment has failed of adoption.”REF In other words, the Supreme Court dismissed a case to resolve whether the ERA deadline extension had been valid when adopted because the 1972 ERA was no longer pending before the states. Even with the deadline extension, it had failed.

As a result, resolutions purporting to ratify the 1972 ERA adopted by the legislatures of Nevada (2017), Illinois (2018), and Virginia (2020)REF could not have any legal effect. States cannot ratify a proposed amendment that is not pending before them. The U.S. Department of Justice’s Office of Legal Counsel concluded in January 2020 that “Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the States.”REF Based on that advice, the Archivist of the United States declined to certify that the 1972 ERA is part of the Constitution.REF

Three lawsuits subsequently sought to resolve the ratification issue in the courts.

  • Alabama v. Ferriero. On December 16, 2019, before the Virginia legislature voted on ERA ratification, three states filed suit claiming that the Archivist’s continued “possession of the States’ ratification documents” and acceptance of such documents from Nevada and Illinois were unconstitutional.REF “The ERA,” they argued, “cannot be ratified because the congressional deadline for ratification has expired…. Both the original congressional deadline and the state rescissions are valid and enforceable.” These states ended this litigation to become intervening defendants in the subsequent lawsuit brought by Illinois, Nevada, and Virginia.
  • Equal Means Equal v. Ferriero. On January 7, 2020, two advocacy organizations and a Massachusetts resident filed suit “to ensure that the Archivist properly records Virginia’s ratification and the ERA’s ratification.”REF They argued that the 1972 ERA’s ratification deadline was “unconstitutional” because it was “untethered to the ERA” and that, therefore, the ERA “can be ratified despite the extra-textual deadline.” The U.S. District Court dismissed the lawsuit because the plaintiffs lacked standing,REF and the U.S. Court of Appeals affirmed that decision on June 29, 2021.REF
  • Virginia v. Ferriero. The three states claiming to have completed the 1972 ERA’s ratification—Illinois, Nevada, and Virginia—filed suit on January 30, 2020.REF In March 2021, U.S. District Judge Rudolph Contreras dismissed this lawsuit for two reasons. First, since ratification does not require the Archivist’s certification, his refusal to certify and publish the 1972 ERA as the Twenty-Eighth Amendment has “no legal effect” and, therefore, “does not cause Plaintiffs any concrete injury.” Second, “even if Plaintiffs had standing, Congress set deadlines for ratifying the ERA that expired long ago. Plaintiffs’ ratifications came too late to count.”REF

The strategy of resuscitating the 1972 ERA never had any chance of success because that measure is not merely dormant; it is dead. Congress has authority to impose a ratification deadline and that deadline is binding whether Congress places it in the resolution’s proposing clause or the proposed amendment’s text. The states can no longer ratify the 1972 ERA because it no longer exists.

Strategy No. 2: Reintroduce the Original Equal Rights Amendment

A newly elected Congress convenes on January 3 following each biannual federal election and has two annual sessions.REF The current 117th Congress, for example, began on January 3, 2021, and will last until January 3, 2023. Legislative business, such as an introduced bill or resolution, dies or expires when each Congress finally adjourns.REF This is why ERA supporters introduced “fresh-start”REF resolutions to propose the ERA in every Congress until one passed in 1972, and continued doing so after the 1972 ERA failed. Trying once again to propose and ratify the original ERA will fail for the same reasons.

This Legal Memorandum distinguishes between the “original” ERA and the “new” ERA. The original ERA appeared in two versions, the first introduced from the 68th Congress (1923–1924) to the 77th Congress (1941–1942). It read: “Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.”REF The HouseREF and SenateREF each held multiple hearings on this version.

The 1972 ERA was an example of the second version of the original ERA, which was introduced from the 78th Congress (1943–1944) to the 112th Congress (2011–2012) in the House and to the present in the Senate. It read: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” This wording resembled the Nineteenth Amendment, ratified in 1920, which states: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or any State on account of sex.” This version of the original ERA also included provisions, added to address “resistance”REF expressed in earlier hearings, such as a ratification deadline and enforcement authority given to both Congress and the states “within their respective jurisdictions.”

These two versions can both be called the “original” ERA because, while different in form, supporters and opponents viewed them as the same in substance. In fact, the House Judiciary Committee did not bother holding a hearing when the first resolutions with the revised text were introduced in 1945.REF

The American Nurses Association summarized opposition to the original ERA in a 1956 House hearing: Its “risks” are “much greater than [its] promise.”REF The ERA once promised to achieve legal equality between men and women, but legislatures and courts have done so without the ERA. Its risks remained, including the likelihood that it would be repurposed for a very different—and much more controversial—agenda. This is why the 1972 ERA failed and why failure is even more likely should Congress propose the original ERA again.

“Allowing for Differences.” ERA supporters and opponents agreed on the general goal of eliminating “discriminations,” or laws, rules, and regulations that applied only to women or applied differently to men. ERA supporters, led by the NWP, insisted that every legal distinction between men and women was an unlawful discrimination.REF They argued that a constitutional amendment was the only way to achieve “identical legal status”REF between men and women by permanently eliminating all federal and state discriminations.REF

In contrast, the National League of Women Voters (NLWV) argued that “distinctions based on sex are not necessarily discriminations”REF and, therefore, treating men and women “identically is not necessarily to treat them equally.”REF The “root of our problem,” they said, is “allowing for differences.”REF The Director of the U.S. Department of Labor’s Women’s Bureau agreed. The goal, she said, should be “achieving an equality which takes into account the differences between men and women.”REF ERA opponents rejected the “blanket method”REF of a constitutional amendment in favor of a legislative approach, which they often called “specific bills for specific ills,”REF that could distinguish legitimate distinctions from unlawful discriminations.

The ERA’s Promise Has Been Realized. ERA supporters offered a promise that, they maintained, only the ERA could fulfill. Without this explicit constitutional command, they claimed, legislatures would never eliminate discriminations and courts would never interpret the Constitution to require equality between men and women. Both parts of this promise, however, were being realized long before Congress proposed the 1972 ERA.

  • Legislative Action. Documenting legislative progress on eliminating discriminations began with the first Senate ERA hearing in 1929. Representing more than a dozen organizations opposing the ERA, the NLWV submitted a list of 175 state laws, passed in 38 states during the previous decade, to remove discriminations.REF Three years later, the NWP itself acknowledged “great progress” among state legislatures in eliminating discriminations.REF Its own analysis listed 20 categories of legislative action across the country to eliminate discrimination against womenREF and conceded that the “whole trend of legislation is toward equality.”REF At a January 1945 hearing, the NWP submitted a report further documenting “the progress already made in equalizing laws which formerly applied to one sex only”REF and again acknowledged that “the trend toward the complete equalization of the laws is unmistakable.”REF

    This legislative trend continued while the 1972 ERA was pending before the states. In March 1979, as the original ratification period drew to a close, the U.S. Commission on Civil Rights issued a report documenting this progress in areas such as holding public office, serving on juries or as guardians and estate executors, domestic relations, education, practicing a professional career, equal pay for equal work, maternity leave, retirement, and the criminal law.REF

  • Judicial Decisions. The second part of the ERA’s promise was also being realized without it. Representative Griffiths herself admitted that applying the Fourteenth Amendment’s guarantee of equal protection to sex-based classifications would “interpret away the entire effect of the [ERA].”REF If that happened, she said, there would “not really be any difference” between the existing Constitution and the ERA.REF The House Judiciary Committee report on the 1972 ERA agreed that this would render the ERA “unnecessary.”REF The only argument ERA supporters could make was that, as Griffiths predicted, this “is never going to happen.”REF

    Representative Griffiths was wrong. The 1965 Citizens Advisory Council on the Status of Women noted that federal courts had begun applying the Fourteenth Amendment to sex-based classifications.REF The Supreme Court rapidly moved its equal protection jurisprudence in that direction before Congress proposed the 1972 ERA,REF while it was pending before the states,REF and since its failure.REF

    In a 1997 interview, Justice Ginsburg said that “[t]here is no practical difference between what has evolved and the ERA.”REF Liberal scholars and prominent ERA supporters agree.Professor David Strauss, for example, wrote in 2001 that “it is difficult to identify any respect in which constitutional law is different from what it would have been if the ERA had been adopted.”REF One year later,Professor Michael Dorf concluded that while the ERA has not become part of the Constitution’s text, we have a “de facto ERA in the Court’s equal protection jurisprudence.”REF Jessica Neuwirth, co-president of the ERA Coalition, similarly concedes that the “principle of sex equality is one that has largely been established as a fundamental right.”REF

Legislatures and courts were fulfilling the ERA’s promise without the ERA.

The ERA’s Risks Are Greater Than Ever. ERA opponents not only argued that it was unnecessary to achieve legal equality between men and women, but also that using a constitutional amendment—as opposed to legislation—for this purpose carried inherent risks. The ERA’s indeterminate and confusing language, they warned, could be used in many unforeseen ways and, in the process, likely undermine the Constitution’s distribution of powers between the federal and state governments.

Legal experts and scholars repeatedly affirmed this conclusion. In the Senate’s first ERA hearing in 1929, for example, Leon Green, Dean of the Northwestern University School of Law, submitted a letter stating his “full agreement with the League of Women Voters in its opposition to the proposed equal-rights amendment…. No one could possibly determine what the amendment means.”REF In 1945, Professor Paul Freund submitted an analysis, endorsed by deans and professors at more than 20 major law schools,REF concluding that the ERA “would transform every provision of law concerning women into a constitutional issue to be ultimately resolved by the Supreme Court of the United States…. The range of such litigation is too great to be readily foreseen.”REF

Dozens of congressional hearings and decades of examination and debate never achieved consensus—even among ERA supporters—about its meaning and application. Professor Thomas I. Emerson, despite “wholeheartedly” supporting the ERA, testified in a 1971 House hearing that there was no agreement on “the basic principles of law which the amendment expresses” or “the main ways in which it will affect existing laws and practices.”REF There had yet to be, Emerson said, “a clear theory of the amendment and its application.”REF Several developments since the mid-1940s magnified the problem posed by the ERA’s indeterminate text.

International Norms. The ERA was drawn off course as supporters began to associate it with international equality norms expressed in the form of human rights agreements. By participating in these agreements, including declarations and treaties, nations not only joined statements, but also made commitments to promote certain objectives. Advocates immediately argued that keeping these commitments required proposing and ratifying the ERA.

  • United Nations Charter (1945). Article II of the United Nations Charter states that its purposes include “promot[ing]…fundamental freedoms without distinction as to race, sex, language or religion.”REF Less than two months after the Senate voted 89–2 to ratify the charter, the Judiciary Committee received a letter from former Attorney General Homer Cummings that the ERA “is entirely in harmony with the provisions of the Charter of the United Nations.”REF In a March 1948 House hearing,REF the United Nations Citizenship League even insisted that ratifying the ERA would be necessary for the United States to “carry out its pledges made in the Charter.”REF
  • Universal Declaration of Human Rights (1948). The U.N. Commission on the Status of Women helped craft the Universal Declaration of Human Rights, adopted as Resolution 217 by the U.N. General Assembly on December 10, 1948. Its preamble refers to the U.N. Charter’s recognition of “the equal rights of men and women,” and Article 2 affirms that everyone is entitled to “all the rights and freedoms set forth in this Declaration, without distinctions of any kind,” including sex.REF
  • Declaration on the Elimination of Discrimination Against Women (1967). The U.N. General Assembly unanimously adopted this declaration as Resolution 2263 on November 7, 1967.REF It states that nations shall take “all appropriate measures” to implement “the principle of equality of men and women,” including embodying the principle “in the constitution or otherwise guaranteed by law.”REF The declaration asserts that the “principle of equality of rights of men and women demands implementation in all States in accordance with the principles of the Charter of the United Nations and of the Universal Declaration of Human Rights.”REF

Women’s Conferences. ERA advocates also used international and domestic conferences to associate the ERA with a new agenda. The World Conference of the International Women’s Year, for example, took place in Mexico City from June 16 to July 2, 1975, and its declaration reminded nations of the many “specific commitments”REF that accompanied subscribing to the U.N. Charter. These included the necessity that men and women “have equal rights and responsibilities in the family.”REF The conference’s World Plan of ActionREF asserted that domestic laws should be revised “in the light of…internationally accepted standards”REF and brought “into conformity with the relevant international instruments.”REF

The National Women’s Conference, which took place in November 1977,REF was the boldest step to date in redirecting the ERA. Its Declaration of American Women asserted that equality remained thwarted by “laws, social customs and prejudices [that] continue to keep a majority of women in an inferior position without full control of our lives and bodies.”REF The conference’s National Plan of ActionREF called for ratification of the ERA and endorsed not only “reproductive freedom”REF in general, but also taxpayer funding of “all methods of family planning.”REF The plan also called for legislation to eliminate “discrimination on the basis of sexual and affectational preference including, but not limited to, employment, housing, public accommodations, credit, public facilities, government funding, and the military.”REF

Presidential Commissions. President Jimmy Carter created the National Advisory Committee for Women in April 1978 while the ERA was pending before the states. Its purpose was to advise him regarding “initiatives needed to promote full equality for American women…including recommendations of the 1977 National Women’s Conference.”REF At its first meeting on January 12, 1979, co-chairs Representative Bella Abzug (D–NY) and Carmen Delgado Votaw said that the ERA was the “foundation on which all our proposals rest.”REF These proposals included lifting the Carter Administration’s ban on Medicaid payments for abortion and resisting “the continued erosion of the Constitutional right to reproductive freedom and the developing attack within Congress on family planning programs as a whole.”REF

Post-Failure Hearings. Contrary to ERA supporters’ predictions, legislatures and courts were steadily fulfilling the ERA’s promise of legal equality between men and women without it. Detached from that purpose, and with no consensus about its meaning or application, the ERA became associated with a wide-ranging, and increasingly controversial, agenda with domestic and even international dimensions. With its risks so far exceeding its promise, no state ratified the 1972 ERA after January 1977. Following its failure, extensive Senate and House hearings during the 98th Congress (1983–1984) not only highlighted why it failed, but also exposed how the campaign to repurpose the ERA had not yet reached its limits.

The Senate Judiciary Subcommittee on the Constitution held 11 hearings on Senate Joint Resolution 10, introduced by Senator Paul Tsongas (D–MA) with language identical to the failed 1972 ERA. The first hearing made clear why it failed. Noting that “the proposed amendment died on June 30, 1982,”REF Senator Dennis DeConcini (D–AZ) focused on the ERA’s promise, observing that “the United States has long been moving toward equality of rights without the ERA.”REF Subcommittee chairman Orrin Hatch (R–UT) focused on the ERA’s risks,REF stating that no one “has the slightest idea of what it really means.”REF

One thing, however, was clear. The 1972 ERA and the Tsongas resolution then before the Senate applied only to government action: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Representative Griffiths had repeatedly emphasized that it “would restrict only government action, and would not apply to purely private action.”REF That distinction was critical because an increasing share of remaining sex discrimination resulted from private, rather than government, action.

In these 1983 Senate hearings, however, ERA supporters repeatedly claimed that it would address a growing list of issues or problems unrelated to any government action. Senator Edward Kennedy (D–MA), for example, said that the ERA was necessary because “women earn only 59 cents for every dollar earned by men.”REF Hatch asked Tsongas, the ERA’s Senate sponsor, to “[t]ell me what the equal rights amendment will do about that,”REF but Tsongas could provide no explanation.

The most significant hearing in this series occurred on January 24, 1984, examining the ERA’s impact on abortion rights. As noted above, ERA supporters had been explicitly connecting it to abortion rights for at least a decade. In 1975, the National Women’s Conference directly linked the ERA with “reproductive freedom” and, four years later, the National Advisory Committee for Women said that the ERA would require taxpayer funding of abortion. This public record belies the attempt by ERA supporters in these post-failure hearings to downplay or even deny that connection altogether. ERA supporters, for example, stressed that Roe v. Wade grounded the right to abortion in the “constitutional right to privacy”REF rather than equal protection. While an accurate observation by itself, its implication that the Court would never change its foundational constitutional theory, or could not use equal protection to advance abortion rights in other ways, was obviously false.

In fact, feminist scholars had been arguing for years that equal protection would be more useful than privacy as a constitutional foundation for abortion rights. In the 1984 William T. Joyner Lecture on Constitutional Law at the University of North Carolina School of Law, for example, then-Judge Ruth Bader Ginsburg argued that “the Court’s Roe position is weakened, I believe, by the opinion’s concentration on a medically approved autonomy idea, to the exclusion of a constitutionally based sex-equality perspective.”REF She repeated this critique in the 1993 James Madison Lecture on Constitutional Law at New York University School of Law: “The Roe decision might have been less of a storm center had it…homed in more precisely on the women’s equality dimension of the issue.”REF

The ERA could have a profound impact on abortion rights whether Roe remained the constitutional foundation for the right to abortion or was abandoned at some point in the future. Courts could, for example, require that if the government subsidized the cost of medical procedures, they must include abortion. Professor John Noonan explained in this hearing how such an application could, in turn, “mandate the Federal and State funding of abortion”REF as ERA supporters were already advocating. Noonan also believed that the ERA would “threaten the tax exemption of most of the religious schools and colleges of the United States” that oppose abortion and “discourage abortion among their students on religious grounds.”REF

The hearing record also includes a letter from Professor Lynn Wardle outlining three separate lines of reasoning by which the ERA could be interpreted to “set in concrete the judicially-created doctrine of abortion-on-demand and could result in mandatory public funding for nontherapeutic abortions.”REF He reminded the subcommittee that, in Roe, the Supreme Court created the right to abortion “even without an amendment written and promoted by the advocates of greater abortion rights.”REF The ERA would be such an amendment.

Disparate Impact Discrimination. These hearings revealed another new objective for the ERA. For six decades, since the ERA’s first introduction in 1923, supporters and opponents shared a common understanding of the kind, if not the extent, of discrimination they targeted. These were statutes, regulations, or policies that, in the words of the ERA, discriminated “on account of sex”; that is, they actually treated men and women differently.

Emerson and his co-authors held the same view in a 1971 Yale Law Journal article that soon became widely considered the definitive explanation of the ERA.REF This article described legal structures designed to “create a separate legal status for women”REF and argued that the solution was to eliminate “any differentiation in legal treatment on the basis of sex.”REF The problem they highlighted was “separate” or “different treatment,” or “a dual system of rights and responsibilities.”REF The solution they advocated was “changes in the legal structure…to achieve a unified system of equality.”REF The “basic principle of the Equal Rights Amendment,” therefore, is that “the treatment of any person by the law may not be based upon the circumstance that such person is of one sex or the other.”REF

In other words, whether a law is discriminatory depends on the content of the law itself rather than speculation about its implementation or effect in different contexts or at different times. Emerson and his colleagues explained that the law may “make different rules for some people than for others on the basis of the activity they are engaged in or the function they perform.”REF Doing so would be permissible “even if there were no women who presently were qualified.”REF The issue is whether the law “use[s] sex as a basis for differential treatment.”REF

But when Emerson testified in 1983, after the 1972 ERA’s failure, he changed course and argued that, although its language had not changed, the ERA would prohibit not only intentional discrimination but also so-called “disparate impact” discrimination. The Supreme Court defined this new category to include government practices “that are fair in form, but discriminatory in operation.”REF While the 1972 ERA had been pending before the states, the Court held that Title VII of the Civil Rights Act, but not the Fourteenth Amendment, covered disparate impact discrimination.REF The equal protection clause still requires evidence of a “‘purpose to discriminate.’”REF The Fourteenth Amendment “guarantees equal laws, not equal results.”REF Ironically, while the Supreme Court went further than ERA supporters predicted in applying the Fourteenth Amendment to intentional sex-based discrimination, ERA supporters responded that it would go further than the Supreme Court ever had by also prohibiting disparate impact discrimination. Doing so would create the constitutional anomaly of providing more robust protection against discrimination based on sex than on race.

Even after 10 years of debate before the states, the original ERA failed because its purpose was being achieved without it and its supporters made clear their intention to repurpose and reinterpret it to promote a very different agenda. Any attempt to again propose the original ERA will suffer the same fate.

Strategy No. 3: Propose the New Equal Rights Amendment

The 1972 ERA died two deaths.

  • Its procedural death occurred when its ratification deadline passed with fewer ratifying states than the Constitution requires. At that point, the 1972 ERA ceased to exist—foreclosing the strategy of completing its ratification process.
  • Its substantive death occurred over time as its promise vanished and its risks multiplied, foreclosing the strategy of again attempting to propose and ratify the original ERA.

The third strategy in response to the 1972 ERA’s failure is to seek support for a “new ERA” based on an entirely different concept of women’s rights—and implemented by a novel enforcement method. Representative Carolyn Maloney (D–NY) has introduced the new ERA in each of the last five Congresses. The most recent, House Joint Resolution 28, introduced in February 2021, reads:

Women shall have equal rights in the United States and every place subject to its jurisdiction. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. Congress and the several States shall have the power to enforce, by appropriate legislation, the provisions of this article. This amendment shall take effect two years after the date of ratification.

A New Concept of Rights. Since Alice Paul first drafted it, and for the next 90 years, the original ERA embodied the familiar concept of legal equality between men and women. The first version began: “Men and women shall have equal rights….” The second version states: “Equality of rights under the law shall not be denied or abridged…on account of sex.” Supporters and opponents understood that, while somewhat different in form, these two versions were the same in substance.

Terms such as “equal” and “equality” denote comparison or relation, referring to similarity of status, treatment, or condition between or among multiple parties. The Cambridge Dictionary defines “equality” as “the right of different groups of people to have a similar social position and receive the same treatment.”REF Professor Nicholas Capaldi writes that “equality is, by definition, an adjectival relation between entities.”REF More than a century ago, the Supreme Court held that the constitutional idea of equal protection means that “all persons similarly circumstanced should be treated alike.”REF Whether someone is equal or is being treated equally can be determined only in relation to some referent.

The opening sentence of the new ERA introduces a different concept: “Women shall have equal rights in the United States and every place subject to its jurisdiction.” While it still uses the word “equal,” this language cannot mean equal rights between men and women. That traditional concept is represented by the new ERA’s second sentence. Traditional principles for interpreting written texts, such as the Constitution and statutes, counsel that one provision should not be given a meaning that simply duplicates another.REF ERA advocates confirm this new concept. Feminist scholar Catharine MacKinnon, for example, writes that Representative Maloney’s “new proposal heightens the possibility of guaranteeing rights to all women even when the discrimination against them isn’t exclusively based on sex.”REF At a 2018 symposium hosted by the Brennan Center for Justice, Jessica Neuwirth explained that the new ERA’s opening line is “an affirmative statement of rights that broadens the amendment to more readily cover substantive equality, as well as legal equality.”REF Rather than promoting “equality,” therefore, this new language would be a source of open-ended authority for courts to create virtually any sort of substantive “rights” for women alone.

Professor Julie Suk also affirms that the new ERA changes its concept of rights.REF While the 1972 ERA “prohibited discrimination on grounds of sex by government,”REF she proposes the goal of securing “a right to egalitarian institutions rather than a right against discrimination.”REF As noted above, ERA advocates began associating it with international equality norms in the 1940s. Suk goes further, using “global constitutionalism” to fashion an agenda for “substantive equality.”REF

This agenda includes addressing “pay inequity,”REF violence against women,REF and “women’s underrepresentation in positions of decision-making power”REF in areas such as politics, business, and Hollywood. Suk writes that the “new text of the ERA, introduced in 2013, appears to be a closer fit to the ERA movement’s political agenda”REF and “provides a better legal apparatus for the policy goals of reducing post-industrial gender inequality.”REF

The new ERA, therefore, would add a concept of women’s rights—that is, undefined substantive or positive rights exclusive to women—to the ERA’s traditional concept of equal rights between men and women. Rather than build upon the ERA of the past, however, this innovation actually contradicts it. Previous generations of ERA advocates repeatedly rejected the idea that it would provide substantive rights that belonged only to women. In the 1931 hearing on Senate Joint Resolution 52, for example, the NWP vice chairman denied that they were “asking for any special rights. We are not asking for anything but the same opportunity [as men] to be human beings in this land of ours.”REF

A New Enforcement Method. ERA opponents had long warned that it would undermine federalism by transforming state legislative matters into federal legislative and judicial ones. In the first House ERA hearing in 1925, for example, the NLWV argued that the ERA would exceed “the wildest dreams of the most advanced advocates of the extension of Federal power.”REF Similarly, in a 1932 hearing, the group said that the ERA’s “broad grant of power to Congress is not in accord with our Federal principle under which the States have the right to…pass the laws they think appropriate.”REF

Attempting to address this concern, the second version of the original ERA empowered both Congress and the states to enforce the ERA “within their respective jurisdictions.” Opponents were not satisfied, insisting that the second version of the original ERA would undermine federalism as much as the first.REF In a February 1947 editorial titled “The Road to Equality,” The Washington Post opined that even with this revised enforcement language, the ERA would be “peculiarly obnoxious to state governments” because it would be “such a destructive invasion of their legislative domain.”REF And in the first hearing after the 1972 ERA’s failure, Senator Hatch said that the American people are entitled to know the ERA’s “impact on the balance of constitutional authority between Congress and the States, the legislative and the judicial.”REF

The new ERA would introduce not only a new concept of rights, but also a method of enforcing it unknown to either existing constitutional amendments or previous ERA proposals. The new ERA would give enforcement authority to both Congress and the states—but without the caveat of “within their respective jurisdiction.” Seven of the eight current constitutional amendments with enforcement language give authority to Congress alone. The Eighteenth Amendment, which introduced Prohibition, gave “concurrent” enforcement authority to “Congress and the several States” but was repealed by the Twenty-First Amendment, which ended Prohibition. Does dropping “in their respective jurisdictions” mean that the states and Congress would have identical authority to enforce the new ERA? In other words, could Congress enforce the new ERA against the states regarding matters within state jurisdiction—and vice versa?

A Different Agenda. The original ERA was examined publicly and in dozens of congressional hearings. Supporters and opponents, scholars and commentators, as well as legislators and activists explored and actively debated its language, meaning, and application. The new ERA, however, has received no scrutiny at all. In fact, its supporters hardly acknowledge that it is a new proposal or differs from “the ERA” of the past. When Representative Maloney introduced the new ERA on March 21, 2021, for example, her press release described her as “the lead cosponsor of the Equal Rights Amendment since the 105th Congress in 1997”REF—as if it had not changed since then.

The agenda that ERA supporters envision, however, continues to expand. The National Organization for Women, for example, has published an article about why the ERA is relevant in the 21st century. “The Equal Rights Amendment,” they argue, “could make a difference” in areas such as “LGBTQIA equal rights”REF and “curbing violence against women” and would “provide the power to more effectively seek redress for women’s economic marginalization.”REF

Three House ERA-related hearings since Representative Maloney began introducing the new ERA reflect the current strategy of describing an even more radical agenda without even suggesting that the ERA has changed. On June 6, 2018, when Republicans controlled the House of Representatives, Representative Maloney and Representative Jackie Speier (D–CA), who has introduced resolutions to retroactively remove the 1972 ERA’s ratification deadline, held what they called a “shadow hearing.” While House Joint Resolution 33, with the new ERA text, was the only ERA resolution introduced during the 115th Congress, no one in this hearing even acknowledged its new language, new concept of rights, or novel enforcement method.

In this shadow hearing, Representative Jerrold Nadler (D–NY) “promised a ‘real’ hearing, should the Democrats retake control of the House.”REF They did in the 2018 election, and a subcommittee held a hearing titled “Equal Rights Amendment” on April 30, 2019, three months after Representative Maloney again introduced the new ERA. Chairman Steve Cohen (D–TN) said that the hearing’s purpose was to consider “the ERA” that had been “approved by both the House and Senate nearly half a century ago.” That ERA, however, had not been introduced in the House since 2012. Professor Kathleen Sullivan’s written testimony focused solely on the 1972 ERA and Congress’ ability to remove its ratification deadline. Again, no one said anything about the new ERA.

In these hearings, supporters described purposes for the ERA beyond anything that had ever been considered in the past. Actress Alyssa Milano, for example, testified in 2018 that the ERA was needed because of the “injustices women suffer every day in our relationships” and in “our streets,” as well as in the health care system and the workplace. She discussed sexual harassment and said that the ERA would ensure that “men who abuse women” will be held accountable by the justice system. The ERA, Milano said, “would guarantee that these women would be protected by the full force of federal law”REF and would “require states to enforce laws against gender violence.” She did not explain how the ERA, or any constitutional amendment for that matter, could address such issues.

In the 2019 hearing, Representative Cohen said that the ERA was needed because “women still are not paid equal wages for equal work” and to address problems such as “gender-based violence.” Representative Maloney’s claim that “[w]e cannot enforce equal pay for equal work unless the ERA is in the Constitution banning discrimination” was particularly baffling because the Equal Employment Opportunity Commission has long been actively enforcing the Equal Pay Act without the ERA. Representative Maloney also described the problem of female genital mutilation, Nevada State Senator Pat Spearman (D) discussed the “blaming and shaming” of female crime victims, and actress Patricia Arquette focused on untested rape kits, the “gender pay gap,” and “the only rising mortality rate in the developed world.” Arquette described poor black women in Alabama dying of cervical cancer, her own sexual assault, date rape, and what she called “layers of bias” against women. None of these ERA supporters, however, attempted to explain how the ERA could be used to address any of these problems.

Representative Maloney’s press release following her introduction of the new ERA in February 2021 also indicated the breadth of its agenda. Recall that the 1977 National Women’s Conference connected the original ERA to eliminating “discrimination on the basis of sexual and affectational preference.” Her release went even further, stating that “[w]ith the ERA, we secure equality under the law for women and all marginalized genders.”REF

The third hearing occurred on October 21, 2021, but not before the Judiciary Committee, which has jurisdiction over constitutional amendments. Instead, this hearing was held by the House Committee on Oversight and Reform, which Representative Maloney chairs in the 117th Congress. In addition to an unusual venue for this hearing, its ratio of majority to minority witnesses was a lopsided six-to-one.REF Nonetheless, this hearing followed the same pattern as the others in two important respects.

First, witnesses spoke only of “the ERA” as if the resolution currently pending before the House would propose the same amendment that Congress sent to the states in 1972. Eleanor Smeal, president of the Feminist Majority Foundation, began her statement by reading what she said was “the complete text of the ERA.”REF What she read, however, was the text of the 1972 ERA rather than the ERA that Representative Maloney, who chaired this hearing, introduced earlier this year. The ERA that Smeal referred to has not been introduced in the House of Representatives for nearly a decade.

Second, witnesses discussed issues and problems that women face that no constitutional amendment, including the ERA, could address or solve. For example:

Carol Jenkins, president of the ERA Coalition, said that the ERA “would be a Constitutional support for many issues that often affect women more than men, including intimate partner violence, sexual assault, paid leave, and equal pay…. Enacting the Equal Rights Amendment would give women, and particularly women of color, a tool to fight for what they have earned: full pay equity.”REF

Actress Alyssa Milano claimed that that the ERA is needed to address unnamed “gender-driven injustices” and that “anyone who is not a cisgender man” lacks “Constitutional protections” without the ERA.REF

Bamby Salcedo, president of the TransLatin@ Coalition, insisted that the ERA would “ensure no discrimination against all people, poor, indigenous, Black, Trans, Women ALL PEOPLES!” and will heal “intergenerational wounds generated against the most marginalized.”REF

Milano’s claim in this hearing that the 1972 ERA’s ratification deadline was “cynically imposed…as a poison pill”REF is pure fiction. As noted, ERA supporters had acknowledged since the 1940s that a ratification deadline was a “customary” feature of resolutions to propose constitutional amendments and would be “perfectly all right”REF for the ERA. Representative Griffiths, the 1972 ERA’s sponsor, argued that including the deadline would help “gain united support for the amendment,”REF and ERA supporters readily supported her decision.REF

An Even Stronger Abortion Connection. In these 2018 and 2019 hearings, ERA supporters readily made claims about its application and impact that exceeded even the most ambitious advocates of the past. At the same time, they denied any connection to abortion rights even though the public record on that issue had been building for four decades. Representative Maloney, for example, flatly insisted in the 2019 hearing that “the Equal Rights Amendment has absolutely nothing to do with abortion…. It has nothing to do with abortion.”REF This claim contradicts not only a public record dating back to the 1970s, but also forceful positions by ERA advocates in statements and articles submitted for the record in that very hearing. The National Organization for Women, for example, asserted not only that “[a]n ERA—properly interpreted—could negate hundreds of laws that have been passed restricting access to abortion and contraception,”REF but also that the new ERA could “facilitate…expanding reproductive rights” even further.REF NARAL Pro-Choice America stated that “the ERA would reinforce the constitutional right to abortion…[and] require judges to strike down anti-abortion laws.”

Representative Maloney’s denial also contradicted claims of ERA supporters who have continued to assert its connection to abortion rights since she began introducing the new ERA. For example:

  • A public statement by the president of the Feminist Majority Foundation on Women’s Equality Day 2019 directly linked the ERA to the fight against abortion restrictions.REF
  • In May 2019, the American Civil Liberties Union sent a letter to the House Judiciary subcommittee explaining that “the Equal Rights Amendment could provide an additional layer of protection against restrictions on abortion…. The Equal Rights Amendment could be an additional tool against further erosion of reproductive freedom.”REF
  • The acting president of the Planned Parenthood Federation of America states flatly: “There are no equal rights for women without access to abortion, plain and simple.”REF
  • Kelli Garcia, Senior Counsel at the National Women’s Law Center, said after the 2019 House ERA hearing that the “ERA would help create a basis to challenge abortion restrictions.”REF

The ERA’s impact on abortion rights is, in fact, one of the few issues regarding its impact on which many ERA supporters and opponents actually agree. In 2007, two Republican House Judiciary Committee staff members wrote that “the reasoning underlying the Supreme Court’s decision in Harris v. McRae, which upheld the Hyde Amendment, would not be sustainable if the federal ERA were adopted.”REF In 2008, feminist scholar Sabrina Miesowitz agreed, writing that “passage of a federal Equal Rights Amendment would require a review of the Hyde Amendment and the U.S. Supreme Court cases upholding it.”REF

The ERA’s impact on abortion rights is no longer hypothetical. In its 1980 report, the President’s Advisory Committee on Women recommended that examining the application of similar ERAs in state constitutions would be an “easy way” to understand the federal ERA’s impact.REF Feminist scholars have also endorsed the idea that state ERAs are “the best guide to determining the possible effect of a federal ERA”REF and “the only realistic guides to possible interpretations of the federal ERA.”REF In a January 2020 analysis, the Center for American Progress cited court decisions interpreting and applying state ERAs, concluding that the ERA “could further buttress…existing constitutional protections” for abortion rights.REF Examples include:

  • Connecticut. The Connecticut Constitution provides: “No person shall be denied the equal protection of the law…because of…sex.”REF In Doe v. Maher,REF the Connecticut Superior Court held that the standard for judicial review of sex classifications under our ERA is “strict scrutiny,”REF the same standard that the Equal Protection Clause requires for racial classifications. Under this standard, the court said, using Medicaid funds for “medical expenses necessary to restore the male to health” but not for “therapeutic abortions that are not life-threatening”REF violates the ERA.
  • New Mexico. The New Mexico Constitution provides: “Equality of rights under law shall not be denied on account of the sex of any person.”REF In New Mexico Right to Choose/NARAL v. Johnson,REF the New Mexico Supreme Court held that allowing Medicaid funds to pay for abortions only for specific reasonsREF violated the ERA.”REF

Results like these would be even more likely under the new ERA because it contains both women’s rights language reflecting Roe v. Wade’s autonomy concept and equal rights language that abortion rights advocates have said would provide an even stronger alternative constitutional foundation.

Senator Hatch observed in the 1983 post-failure hearing that the ERA fared poorly in states where it received more thorough evaluation and scrutiny.REF This would certainly be true for the new ERA, which departs even further from the original ERA that the states found unacceptable. The new ERA would inherit all the controversy of its predecessor and create much more deriving specifically from its novel language, new concept of equality, and different enforcement method.

Conclusion

The Equal Rights Amendment was born a century ago to address legal equality between men and women. Defying the predictions of ERA supporters, both legislatures and courts steadily required equality without the ERA. In 1937, Justice George Sutherland distinguished between actually amending the Constitution’s text and effectively doing so “in the guise of interpretation”REF of that text. This is exactly what the Supreme Court did, turning the Fourteenth Amendment into a “defacto ERA” by interpretation. With its purpose accomplished, the ERA’ indeterminate and confusing language was ripe for enlistment in a very different, and more controversial, campaign.

None of the strategies responding to the 1972 ERA’s failure will succeed. The 1972 ERA cannot be resuscitated, and its ratification completed, because it has not been pending before the states since its ratification deadline passed. Trying again to propose the original ERA will fail for the reasons it did before; the past few decades have both witnessed continued progress for women and revealed how ERA advocates want to use it for many other purposes—such as strengthening abortion rights and the rights of LGBTQ+ individuals. The new ERA will fail not only for the same reasons as its predecessor, but also because even minimal scrutiny will expose its new and radical concept of rights, its enforcement method that would undermine federalism in new ways, and its availability for an agenda most Americans do not support.

Thomas Jipping is Senior Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies, of the Institute for Constitutional Government, at the Heritage Foundation.

Authors

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Thomas Jipping

Senior Legal Fellow, Center for Legal and Judicial Studies