Proposed but unratified amendment to the U.S. Constitution designed mainly to invalidate many state and federal laws that discriminated against women. Its central tenet was that sex should not be a determining factor in establishing the legal rights of individuals. It was first introduced in Congress in 1923, shortly after women obtained the right to vote. It was finally approved by the U.S. Senate 49 years later (1972) but was subsequently ratified by only 30 of the 50 state legislatures. Critics claimed it would cause women to lose privileges and protections, such as exemption from compulsory military service and economic support by their husbands. Supporters, led by the National Organization for Women, argued that discriminatory state and federal laws left many women in a state of economic dependency.
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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.
The National Women's Party took the ERA to Congress in the 1920s, where Senator Charles Curtis and Representative Daniel R. Anthony, Jr.—both Republicans and both from Kansas—introduced it for the first time as Senate Joint Resolution No. 21 on December 10, 1923, and as House Joint Resolution No. 75 on December 13, 1923, respectively. Though the ERA was introduced in every session of Congress between 1923 and 1970, it almost never reached the floor of either the Senate or the House for a vote—instead, it was usually "bottled up" in committee. Exceptions occurred in 1946, when it was defeated in the Senate by a vote of 38 to 35, and in 1950, when it was passed by the Senate in a modified form unacceptable to its supporters. The ERA was strongly opposed by the American Federation of Labor and other labor unions as well as by Eleanor Roosevelt and most New Dealers, who contended that women needed government help and should not be forced into the workplace to compete with men.
Representative Martha W. Griffiths of Michigan, however, achieved success on Capitol Hill with her House Joint Resolution No. 208, which was adopted by the House on October 12, 1971, with a vote of 354 yeas, 24 nays and 51 not voting. Griffiths' joint resolution was then adopted by the Senate on March 22, 1972, with a vote of 84 yeas, 8 nays and 7 not voting. With that, the ERA was finally presented by the 92nd Congress to the state legislatures for ratification, as Article V of the Constitution prescribes, with a seven-year deadline for ratification by the required three-quarters of the legislatures (38 legislatures).
The national debate on the ERA has largely subsided, in part because of expanded interpretations of existing statutes and constitutional provisions which have afforded more equal legal treatment of men and women. In Congress, supporters of the ERA have re-introduced the amendment in Congress every term since 1982 without success.
On March 27, 2007, new resolutions were introduced in the U.S. House of Representatives and U.S. Senate as H.J. Res. 40 and S.J. Res. 10, respectively. They contain the traditional ERA language, but this time with no deadline attached. The congressional sponsors referred to the new resolutions by the name "Women's Equality Amendment," but this title does not appear in the resolutions, and some groups backing the proposals continue to refer to them as the gender neutral "Equal Right Amendment.
In 1978, the Congress passed a controversial bill by a simple majority (not a two-thirds supermajority), which disputedly extended the ratification deadline by 39 months. During this disputed extension, no new states ratified or rescinded. In Idaho v. Freeman (1981) a federal district court ruled the extension to be unconstitutional.
The National Organization for Women appealed the U.S. district court holdings in Idaho v. Freeman. In NOW v. Idaho, 459 U.S. 809 (1982), the U.S. Supreme Court declared the entire matter moot, on grounds that the 1972 ERA was dead with or without either the rescissions or the purported deadline extension.
As previously noted, five of the 35 states which ratified the ERA rescinded their ratifications before the original 1979 deadline.
Here are details on the five rescissions:
The U.S. District Court for Idaho held, in Idaho v. Freeman, that the rescissions — all of which occurred before the original 1979 ratification deadline — were valid. According to research by Prof. Jules B. Gerard, professor of law at Washington University, of the 35 legislatures that passed ratification resolutions, 24 explicitly referred to the 1979 deadline.
At various times, in eight of the 15 non-ratifying states, at least one chamber of the legislature approved the ERA, those eight states being:
No additional states ratified the ERA during that extra period of slightly more than three years. On June 18, 1980, a resolution in the Illinois House of Representatives resulted in a vote of 102-71 in favor. However, Illinois required a 3/5ths majority on constitutional amendments, and the measure failed by five votes. In fact, the only occurrence favorable to the ERA between the original deadline of March 22, 1979, and the revised June 30, 1982, expiration date was—as noted earlier—its approval by the Florida House of Representatives on June 21, 1982. In the final week before the deadline, that ratifying resolution was defeated in the Florida Senate by a vote of 16 yeas and 22 nays. Even if Florida had become the 36th state to ratify the ERA, the amendment would still have been two states short of the required 38 (or seven states short, if rescissions are valid).
On December 23, 1981, a United States District Court ruled that the ERA's deadline extension was unconstitutional and, further, that a state legislature may indeed rescind a prior ratification of a proposed amendment to the Federal Constitution. The case ultimately was appealed to the Supreme Court of the United States. The United States Solicitor General claimed that the required number of states (38) had not ratified even if the deadline extension and the rescissions were valid, and that "the Amendment has failed of adoption no matter what the resolution of the legal issues presented here. The Supreme Court agreed and ordered the case dismissed as moot on October 4, 1982. The Supreme Court thereby recognized that the 1972 ERA had failed to win ratification, but the Court did not issue a ruling on the merits of the either the deadline extension issue or the rescission issue in this case.
The three-state strategy was publicly unveiled at a press conference held in Washington, D.C., in December, 1993. According to an Associated Press report, "a coalition of women's groups," operating under the name "ERA Summit," planned "to ask Congress to nullify 1982 deadline for ratification. Early the following year, Congressman Robert E. Andrews (D-NJ) introduced a resolution in the House of Representatives to require that "when the legislatures of an additional three states ratify the Equal Rights Amendment, the House of Representatives shall take any legislative action necessary to verify the ratification of the Equal Rights Amendment as a part of the Constitution. No action was taken on the resolution, which has also been introduced in subsequent Congresses.
An article published in the William and Mary Journal of Women and the Law in 1997 explains a legal rationale for the "three-state strategy." It argues that:
The article further reasons that because the Constitution gives the Congress the power to propose amendments to the Constitution—and including changing aspects of the ratification process itself— that if and when three additional states ratify the ERA, the Congress has the power to deem the ERA properly ratified and duly added to the Constitution.
Opponents of the three-state strategy point out that the 1789 resolution proposing what is known today as the Twenty seventh Amendment ("Madison Amendment"), dealing with congressional pay raises, did not contain a deadline for ratification.
In 1996, the Library of Congress' Congressional Research Service issued a report that said, "There is no precedent for Congress promulgating an amendment based on state ratifications adopted after a ratification deadline has expired. However, proponents of this course cite as possible precedent the ratification activity of the states regarding the 27th Amendment... proponents of the ERA might wish to adopt a strategy of urging its ratification by state legislatures because their actions might prompt this or a future Congress to proclaim the amendment had been ratified." CRS stressed that it "takes no position on any of the issues.
Several state legislatures have considered the three-state strategy, but none have passed a resolution:
Especially since the early 1980s, the potential impact of the ERA on abortion-related laws has become a major factor in the ERA debate. On November 15, 1983, the majority (Democratic) leadership of the U.S. House of Representatives attempted to again pass the ERA (to begin the entire ratification process over again), under a procedure that did not allow consideration of any amendments. The ERA fell short of the required two-thirds vote (278-147) when 14 co-sponsors voted against it, many of them insisting on the need for an "abortion-neutral" amendment proposed by Congressman Jim Sensenbrenner, which read, "Nothing in this Article [the ERA] shall be construed to grant, secure, or deny any right relating to abortion or the funding thereof." Neither House of the Congress has voted on any ERA since that day.
The ERA-abortion issue was further fueled by the use of ERAs in state constitutions in lawsuits attacking pro-life/anti-abortion policies in some states. ERA-based efforts to invalidate restrictions on tax-funded abortions succeeded in Connecticut and, especially, in New Mexico. On November 25, 1998, the New Mexico Supreme Court ruled 5-0 that the state ERA — very similar to the proposed federal ERA — prohibited the state from restricting abortion differently from "medically necessary procedures" sought by men, and the court ordered the state to pay for abortions under the state's Medicaid program.
In its ruling, the court adopted the construction of the ERA urged in the case by the National Abortion and Reproductive Rights Action League, Planned Parenthood, the ACLU, the Center for Reproductive Law and Policy, and the NOW Legal Defense and Education Fund. The doctrine that the ERA language invalidates limitations on tax-funded abortion was also supported in briefs filed by the state Women's Bar Association, Public Health Association, and League of Women Voters. This ruling is now often cited by pro-life/anti-abortion groups in debates over ERAs in Congress and various legislatures.
Other critics have argued that the courts could rule that the ERA would mandate the recognition of same-sex marriage. They point to various court decisions, including a Hawaii State Supreme Court decision in 1993, a Baltimore, Maryland circuit court decision in January 2006, the Massachusetts Supreme Judicial Court ruling for same-sex marriage in 2003, and to a decision by the Supreme Court of California in May 2008, all of which used state bans on sex discrimination as partial justification for the rulings.
Critics also maintain that the ERA would prohibit single-sex schools, sports teams or even restrooms—they point to a decision by a court in the State of Washington which ordered a fraternal civic organization to admit women, based upon the ERA within its state constitution. Finally, some opponents of the ERA contend that the amendment simply is not necessary, that other provisions of the Constitution— as interpreted by various rulings by the U.S. Supreme Court and lower federal courts— provide sufficient support for equal rights for both genders and that the amendment would imply that women had never been equal under the law before the amendment's passage.
Supporters also point out that the likely legal interpretation of the ERA would be to review government, but not private, sponsored sex distinctions under strict scrutiny (the level of legal scrutiny currently afforded to racial discrimination). While strict scrutiny is a very high level of legal scrutiny, it does not preclude all governmental acts regarding a suspect class.