Can we count on the ERA?

Doxey Kamara, Intersections Editor

Demonstrations in favor of the ERA persist almost a century after its creation. (Maggie Pasterz)

The Equal Rights Amendment, first proposed in 1923, sought to secure legal equality for everyone, regardless of sex. Despite its popularity, it was never ratified. Now, almost a century later, Virginia became the 38th state to support the ERA’s addition to the Constitution.

In the decades since its proposal, however, women have gained rights previously denied to them. Women can vote, and discrimination on the basis of sex is illegal thanks to the Civil Rights Act of 1964. What purpose does ratification serve now when its goals have seemingly been met?

While it may look purely symbolic on a surface, the ratification of this amendment serves a practical purpose. Most existing protections can be repealed via a simple majority vote. This means that rights taken for granted — for example, a woman’s right to be paid the same rate as her male peers — can disappear thanks to a single person’s vote. 

It may seem an unlikely occurrence, but the absence of the ERA means that women’s rights can be rescinded piecemeal. Because the ERA states that the “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex,” women’s rights — such as rights to fair wages and protection from discrimination — essentially become set in stone. 

By supporting the ERA’s ratification, Virginia has reignited a debate about the amendment’s validity. Despite its initial rejection by Congress in 1923, the amendment was approved by Congress in 1972. The approval came with a demand that 38 states ratify the amendment before it becomes a part of the constitution. If it did not get that support within seven years, then it would not be amended to the Constitution. 

The deadline was extended to 1982, at which point the amendment only had 35 supporting states. It did not gain any more state support until 2017 when Nevada ratified the bill. In 2018, Illinois followed suit. Following Virginia’s ratification in 2020, the ERA now has all 38 votes that it needs. Why did these states choose to support it then, so far after the deadline?

Because the deadline was not included in the amendment’s body of text. Coupled with the argument that the Constitution never gave Congress the power to dictate when a state should ratify an amendment, the ERA is now in limbo. 

The Justice Department’s Office of Legal Council claims that the amendment cannot be certified because it did not garner enough support in time. This prompted a lawsuit from the attorneys general of Virginia, which was followed by additional lawsuits from the attorneys general of Nevada and Illinois. 

The lawsuit’s attempt to disregard the deadline failed, and for a moment it seemed like the ERA was doomed. However, the House of Representatives overruled that decision by passing a resolution to remove the deadline.

While that sounds promising, optimism might be misplaced. The only barrier now is a similar resolution in the Senate, which relies on at least ten Republicans voting alongside all 50 Democrat senators. For comparison, only four Republican representatives voted in favor of the deadline’s removal in the House. In the Senate, at least 60 senators must vote in favor of the bill in order for the deadline to be nullified. 

While the ERA should definitely be amended to the Constitution, as it protects the rights of so many Americans, partisan politics may continue to hinder its progress. The fight over the Equal Rights Amendment seems far from finished and hope may best be placed elsewhere.