No Road Back for the ERA
There are few things from 1972 that you could just pick up and dust off for use today. Clothes would be out of fashion if they even fit, cars would need plenty of maintenance and care to be driven, and disco music had not even made its way onto the music charts.
The Equal Rights Amendment (ERA) passed Congress in that year! It proposed a solution to a problem that existed prior to 1972 and was being resolved with good legislation at the federal and state levels.
For an amendment to pass, the United States Constitution requires the approval of two-thirds of both the House of Representatives and the Senate, followed by ratification in three-fourths of the states. It is not supposed to be an easy process, and only 27 amendments have been added since the Constitution’s adoption.
The ERA included a seven-year deadline for ratification. By the time it arrived in 1979, 31 states had ratified the ERA. Four others had ratified it but rescinded their ratifications by the deadline. By no measure had the required 38 states ratified the ERA.
Congress then passed an extension to 1982, although the extension only passed by a simple majority rather than the two-thirds vote required for constitutional amendments, rendering the extension legally very suspect. A federal district court in Idaho found the extension invalid in 1981.
In any event, no more states ratified the ERA by the 1982 deadline. The Supreme Court that year declared a lawsuit about the extension moot because the amendment had failed. The House of Representatives in 1983 tried to pass a new Equal Rights Amendment, another concession that the ratification process begun in 1972 was dead, but that new ERA did not attain the required two-thirds vote.
You don’t have to go back almost four decades to find Supreme Court justices who think the ERA is dead. Liberal Justice Ruth Bader Ginsburg, an ERA supporter, said on February 10, 2020, “I’d like it to start over,” noting the controversy with states adopting it late and others rescinding it before ratification.
Nevertheless, supporters of the ERA are plowing ahead. Virginia’s new Democrat majority in the General Assembly spent valuable legislative time on ratification, and the Democrat majority in the U.S. House of Representatives passed a resolution by simple majority to remove the deadline.
ERA proponents cite the 27th Amendment, which prohibited congressional pay raises from taking effect before an election of representatives had intervened. This amendment was proposed as part of the original Bill of Rights in 1789 and only ratified in 1992, but unlike the ERA, it never had a deadline.
Other amendments, such as the Eighteenth Amendment imposing Prohibition, did include a deadline but were ratified in time.
In light of these facts, the recent activity regarding the ERA is little more than a sideshow.
But what of Justice Ginsburg’s suggestion that supporters of the amendment start over?
The country is in a different place than it was in 1972, when the ERA passed Congress. It is certainly in a different place than it was in 1943, when the text was first introduced, or 1923, when the original ERA was proposed.
I am sympathetic to those who advocated the amendment prior to 1972. In the 1960s, my mother sought a loan for our house on Broad Street in Salem. The house I grew up in was at risk of being lost. At the time, she was ineligible because she was a divorced woman. A divorced man earning the same would have had no problem. That was wrong. Fortunately, a sympathetic loan officer checked the box that she was widowed, thus making her eligible.
By the 1970s, when she applied for a loan for a house on Main Street, that legal barrier had been eliminated by good legislation without the need for a constitutional amendment.
In just a few years, the situation had changed and my mother was treated more fairly. ERA supporters overlook our ability to make progress, whether by specific legal changes, cultural shifts, or other means apart from the drastic step of amending the Constitution.
Any injustices that exist today should be remedied by legislation. The ERA is a blunt instrument. Its very broadness could lead to applications that are far from promoting “equality.” For instance, some states that have included ERAs in their constitutions have been forced to support abortion. Courts could very well force the same outcome at the federal level.
Legally, the ERA has been long dead, and it should not be resurrected.
If you have questions, concerns, or comments, feel free to contact my office. You can call my Abingdon office at 276-525-1405, my Christiansburg office at 540-381-5671, or my Washington office at 202-225-3861. To reach my office via email, please visit www.morgangriffith.house.gov.