Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, January 22, 2019

How the Equal Rights Amendment is Still in Play

Garret Epps, The Equal Rights Amendment Strikes Again, The Atlantic

If you’re confused about the ERA’s status, that’s only natural. Until recently, the Equal Rights Amendment itself—the heart of it says, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex”—seemed like a dead letter. When Congress proposed the amendment in 1972, the resolution said it would become effective if approved by three-quarters of state legislatures “within seven years.”


At the time, ratification seemed a foregone conclusion; both parties had supported the ERA for nearly 20 years. But the nascent religious right mobilized to block it. Ratification stalled at 35 states—three short of the three-fourths majority required. In 1978, Congress passed a new resolution extending the deadline to June 30, 1982—but no new states ratified.


Since then, women’s advocates have repeatedly tried to get Congress to adopt a new ERA resolution and begin ratification anew—to no avail.


But advocates also formulated a new path to ratification, which they dubbed the “three-state strategy.” It is this: (1) Win ratification in three of the 15 states that have not yet ratified the amendment—thus bringing the total number of ratifications to 38, and then (2) Win passage of a congressional resolution retroactively extending the deadline.


Step one is nearly complete; the Nevada legislature approved the amendment in 2017, and Illinois did so in 2018. If Virginia approves it this time, the three-state strategists will ask Congress to pass a statute proclaiming that the measure has been approved by 38 states.


Then the real fight will start.


The “new” strategy is actually 25 years old. It has its roots in 1992, after the adoption of the Twenty-Seventh Amendment.


Quick! What is the Twenty-Seventh Amendment? Don’t worry, nobody remembers: “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.” It means that one Congress can’t vote itself a pay raise; it can only raise (or lower) the pay of the next Congress, thus requiring the members to face voters at the polls before pocketing extra cash.


Although this congressional-pay amendment entered the Constitution in 1992, it had actually been proposed by Congress two centuries earlier, in 1789....


All of this has led the ERA’s supporters to wonder: If the congressional-pay amendment could come back from the dead after two centuries, why not the ERA after a mere decade and a half? Since the ERA limit has already been changed once by Congress, why can’t another Congress change it again, retroactively?


The main theoretical work behind the three-state strategy is a student note by three University of Richmond students published in 1997. That’s a bit thin, but so was Watson’s term paper, and that led to the Twenty-Seventh Amendment. In fact, the process of constitutional adoption and amendment has since 1787 been marked by desperate improvisations and sudden power plays.

Constitutional, Gender, Legal History | Permalink


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