March 31, 2022

Equal Rights Amendment: Ratified or No?

Equal Rights Amendment: Ratified or No?

Eff Equality! Kevin and Jaime chatted a bit about the perception of Equality in the US seems to be out of reach and why the Equal Rights Act is still waiting for ratification in September of 2021.

So what's in the ERA? Via the Equal Rights Amendment website:

Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3: This amendment shall take effect two years after the date of ratification.

This wording has been the text of the Equal Rights Amendment since it was composed by suffragist leader and women’s rights activist Alice Paul in 1943. The original ERA, written in 1923 by Paul, feminist lawyer/activist Crystal Eastman, and several others was known as the “Lucretia Mott Amendment”: “Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction. Congress shall have power to enforce this article by appropriate legislation.”

Beginning in the 113th Congress (2014-2015), the text of the ERA ratification bill introduced in the House of Representatives has differed slightly from both the traditional wording and its Senate companion bill. It reads:

Section 1: 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.
Section 2: Congress and the several States shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3: This amendment shall take effect two years after the date of ratification.

The addition of the first sentence specifically names women in the Constitution for the first time and clarifies the intent of the amendment to make discrimination on the basis of a person's sex unconstitutional. The addition of "and the several States" in Section 2 restores wording that was drafted by Alice Paul but removed before the amendment's 1972 passage. It affirms that enforcement of the constitutional prohibition of sex discrimination is a function of both federal and state levels of government.

The act was introduced by Rep. Daniel Anthony on December 13, 1923, nephew of one Susan B. Anthony. You may have heard of her. The Amendment did not pass in 1923. Or 1933. Or 1943, though it was introduced in Congress every year until it passed in 1972. 

So if the amendment passed, why isn't it in the US Constitution? States ratification!

A handy dandy reference for those who want to see if their state (or their favorite state, for those abroad) has voted to ratify the ERA: 

 

 Map of US states that have ratified, not ratified, or rescinded ratification of the ERA (via wikipedia)

Pink: Ratified
Purple: Ratified after June 30, 1982
Orange: Ratified, then revoked
Yellow: Ratified, then revoked after June 30, 1982
Green: Not ratified (approved in 1 house of legislature)
Blue: Not ratified
Image via Wikipedia Commons
 
Having enough states approve the ERA has been an ongoing battle. In fact, March 22, 2022 commemorates 50 years since Congress passed the ERA. There was an (arguably arbitrary) deadline of June 30, 1982 for passing the ERA. In 1982, the US was three states short of ratification. Does that mean that the bill is dead? Of course not. Welcome to legislation! WHEE!

That deadline was pretty much ignored by several states and massive efforts in the 2010s came about to push for states ratifications. That deadline will come back to haunt us though, folks. 

On January 27, 2020, Virginia became the final state needed to ratify the ERA. Though gaining all the necessary requirements under Article V, the ERA still isn’t officially part of the U.S. Constitution. Why? Well because the U.S. National Archivist has not certified Virginia’s ratification and published it in the Federal Register.

Well whyever not? Weeks before Virginia ratified, a memo was released prohibiting the Archivist from certifying the ERA because the deadline had passed and the ERA was dead. Nevada, Illinois, and Virginia, brought a lawsuit against the Archivist to try and force him to certify it.

Does our story end, languishing in the courts? Of course not! That would be boring and we can't have that.

On March 17, 2021, the House passed a bill to eliminate the deadline on the ERA, though many argue that there's no need for any further approvals or votes and the Archivist should ratify as soon as possible. 

They do have a precedent to point to: the ERA isn't the first amendment wait for a full century after approval. The Madison Amendment, which limited the ability of Congress to give itself a pay raise, was ratified in May of 1992, 202 years after it was first passed in Congress. 
 
So what can you do? Get involved! You can reach out to organizations like Vote Equality! and the ERA Coalition, or even your federal representatives. Your voice makes a difference. 

For more information you can check out an article by Kate Kelly, author of "Ordinary Equality" via OprahDaily.com.