What is the ERA?

The ERA is a proposed constitutional amendment which would add the following constitutional guarantee: “equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex.”

The first proposal ever created that called for gender equality harks back to the 1920s. The above text is from the version created in 1972, which was approved by Congress.

How does it become law?

Under Article 5, any constitutional amendment has to be approved by Congress by a supermajority of 2/3 of both chambers as well as be ratified by the legislatures of at least 3/4 of all states. Today this means 38 states.

– Compiled by: Alma Stankovic, J.D.

The original law approved by Congress included a deadline of 7 years to get the required state ratifications. Between 1972 and 1977, 35 states did ratify the amendment, which was just three states short of the requirement. Congress extended the deadline to 1982, but there was significant controversy and opposition, so no additional state ratified the ERA. Then 5 of the states that did ratify the amendment (Idaho, Kentucky, Nebraska, South Dakota, Tennessee) passed resolutions rescinding their approval, further complicating the matter.

What would the ERA do?

Currently there is no specific constitutional guarantee that provides for gender equality. This leaves the door open to discrimination based on gender without possibility for redress in the courts. This is especially true on the federal level, where state rules — e.g. state constitutional amendments or regular law have provisions that prohibit gender discrimination — do not apply.

Moreover, discrimination based on gender is not treated with the same stringent rules as, for example, discrimination based on race, alienage or national origin. These matters are rooted in the 14th Amendment’s Equal Protection clause. To be allowed to have a law that distinguishes and/or discriminates between people of different races, the government must show a “compelling interest”, that the law is “narrowly tailored”, and that it is the least restrictive means to achieve the government’s interest.

Gender discrimination has been recognized as falling within the ambit of the 14th Amendment; however, it is evaluated on the intermediate scrutiny level, a lower level of review. Here, the government can discriminate if it can show that the law furthers an “important interest" and that the law is “substantially related” to that interest.

An equal rights amendment, especially as written above, could potentially elevate the level of review of gender discrimination to strict scrutiny. Any laws that on their face distinguish between genders would have to withstand much higher scrutiny to be allowed to stand. This could be especially beneficial for women in terms of rights related to reproductive healthcare and abortions.

The ERA would also be of significant symbolic value. Women are completely left out of the Constitution - not surprisingly given the time period when it was written. An amendment that ensures gender equality would potentially signify the changing times and the positive message that gender equality is a desirable issue in our society.

Finally, the ERA could have an impact on the rights and treatment of the LGBTQI community. Currently, sexual orientation also falls only under the intermediate scrutiny review. The ERA could potentially be used to apply strict scrutiny review. This change could be especially beneficial to transgendered persons, as it is possible that issues related to matters such as bathroom usage, gender reassignment, etc. could be more effectively fought.

Any drawbacks?

One issue is that regardless of the level of scrutiny, the ERA may not be effective in combating facially neutral laws (i.e. a law that doesn’t mention a classification distinction) as proving them discriminatory requires proof of not just discriminatory impact but also discriminatory intent by the legislature. Many cases involving indirect racial discrimination fail on account of the intent requirement.

Another fear is that the ERA would eliminate laws that currently help women by positively discriminating, i.e. putting them in a position that helps them have an equal or even better standing. Indeed, the objections in the 70’s came in part from working women who worried that the ERA would eliminate workplace protections for women. Other potential areas that could be impacted according to ERA critics are family law (especially child support and alimony payments), and matters such as women-only shelters for women fleeing domestic violence being challenged as discriminatory under this amendment.

What’s needed for the ERA to finally be implemented?

There are currently two paths being considered to get the ERA passed, as it is currently unclear to what extent the original 1972 approval by Congress still has validity. Some argue that since Congress had established a deadline (and even extended it), the ratifications lapsed after once the amendment was not ratified by the required amount of states. However, proponents argue that a subsequent Congress could lift the seven year deadline retroactively.

This argument bases its logic on two Supreme Court decisions (Dillon v. Gloss and Coleman v. Miller), in which the Court essentially said that Congress controls the ratification process and cites the fact that the 27th Amendment of the Constitution was finally ratified more than 200 years after it was approved. Proponents of this viewpoint argue that this shows that Congress can modify deadlines, and as a result resolutions have been introduced regularly in Congress to eliminate the deadlines set in 1972 and to allow the ratification process to continue indefinitely.

Since this would be a continuation of the original process, the idea was is that only 3 more states’ ratifications are needed for the ERA to become an amendment, which is why this is called the ‘three-state approach’. By end of 2018, two additional states had ratified the amendment, Nevada and Illinois, leaving only one more state needed should this process be deemed to work.

The other is the so-called ‘fresh start’ approach. Under this approach, proponents accept that the deadline has passed, but are willing to start anew. To this end, new resolutions of the ERA have been proposed in Congress since before the extended deadline lapsed in 1982. Under this approach, however, getting the amendment officially added to the Constitution would require that the ratification process by states start anew, meaning that 38 states would need to ratify one of these new proposals.

One complication, as noted above, is the problem of the 5 states which rescinded their ratification. There is no constitutional authority regarding recession of ratification of a proposed constitutional amendment. There is some precedent in the way that the 14th Amendment was included, as well as in the aforementioned case Coleman v. Miller, that recision is not possible since Congress controls the ratification process.

Compiled by: Alma Stankovic, J.D. January 1, 2019

Sources and Useful Info

- S. Loiaconi, The Equal Rights Amendment: What you need to know, WJLA,

Washington DC, June 2nd, 2018 (available at: https://wjla.com/news/nationworld/

the-equal-rights-amendment-what-you-need-to-know)

- T.H. Neale, The Proposed Equal Rights Amendment: Contemporary Ratification

Issues, Congressional Research Services, July 18, 2018 (available at: https://

fas.org/sgp/crs/misc/R42979.pdf)

- ERA Website, Alice Paul Institute, https://www.equalrightsamendment.org