Was The Equal Rights Amendment Ratified?

Virginia Attorney General Mark Herring offered a curious quote upon his state’s ratification of the Equal Rights Amendment, a mere 48 years after Congress enacted it and sent it into the wild for the states to do as they will.

For nearly 150 years, the Constitution did not acknowledge the existence of women. Now, 231 years since our country was founded and on the centennial anniversary of the nineteenth amendment, the American people have shown that they are as committed as ever to true equality by adopting the Equal Rights Amendment.

If the American people are committed to “true equality,” then the ERA wouldn’t be needed any more than a constitutional amendment is needed to give us a right to breathe air. But for a guy giving elapsed years, Herring missed the one that matters here, and Congress included in its preamble to the 28th Amendment that it had to be ratified within seven years, subsequently extended for an additional three years before the initial deadline elapsed.

The ERA wasn’t ratified within the time frame required by Congress. Herring’s state didn’t ratify until now. Maybe Virginia wasn’t as committed as he says it was?

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.

In 1972, as women fought to break out of the yoke of their gender roles and treatment, there was little not to like about the ERA. Equal rights for women? What could possibly be controversial about that? There was the usual fearmongering, that this would break down all the societal norms that held families together, kept children fed, left men fighting with women for jobs since men were the breadwinners and women were employment dilettantes, dabbling for fun until they decided to return to the kitchen, barefoot and pregnant. Who was hotter, Phyllis Schlafly or Anita Bryant?

If the argument strikes you as ridiculous today, that’s part of the ERA issue. The battle for Equal Rights for women in the 1970s isn’t the same battle as today. The states that ratified the amendment back when did so in light of societal norms of the day. They also did so in light of the meaning of the ERA at the time.

“On account of sex” meant male/female in the old school binary way, must like Titles VII and IX of the Civil Rights Act. The states that ratified it within Congress’ deadline did with that understanding of its meaning. Even Herring seems to believe that this amendment acknowledges the “existence of women,” as if they didn’t exist before. But who are women today? What about the rest of the gender spectrum? What do the words mean? What would this amendment do?

But since it took Virginia almost half a century to ratify the ERA, does it matter?

The Office of Legal Counsel of the U.S. Department of Justice has issued an opinion concluding that because the requisite number of states did not ratify the Equal Rights Amendment before Congress’s previously imposed deadline, it cannot be adopted now without starting the amendment process over. The ruling binds executive branch agencies including the National Archives, which per AP “said it would abide by that opinion ‘unless otherwise directed by a final court order.’”

While the OLC opinion binds the executive branch, it’s not law, and the courts still get to decide for realsies. Given that the time for ratification provided by Congress in its enabling legislation expired in 1982, and nobody kept this a big secret from the states, the issue of gross belatedness comes as no surprise to anyone, so the fact that a suit would be required to determine whether the final three state’s ratification means more than virtue signaling is no big shocker.

Walter Olson lays out the basics:

Proponents say the time limit written into the original ERA shouldn’t count because it appeared in the measure’s preamble rather than its main text, and argue that some combination of Congress and the courts are free if they like to count as valid all extensions (whether assented to by a supermajority or by a bare majority), revival measures, and ratification votes taking place at later times, while not counting as valid five states’ rescissions of earlier approval.

Few proponents want to mention the five states that ratified, then rescinded their ratification, of the ERA. Can they do that? Well, they did, before the expiration of the deadlines and before, obviously, the ERA was ratified. They were:

  • Nebraska: March 15, 1973.
  • Tennessee: April 23, 1974.
  • Idaho: February 8, 1977.
  • Kentucky: March 20, 1978.
  • South Dakota: March 5, 1979.

If their rescission was effective, that would make Virginia the 33rd state to ratify. That would be a problem. What’s the precedent for constitutional amendments?

The case of the 27th Amendment, which was proposed with no time limit and did not reach the requisite number of states until more than two centuries later, suggests that contemporaneous “meeting of the minds” is not so intrinsic a feature of the amendment process as many legal scholars once assumed; on the other hand, a 1921 Supreme Court case, Dillon v. Gloss, appears to confirm that Congress did not act unconstitutionally when it chose to prescribe a time limit for the Eighteenth Amendment, as it has done for many amendments in modern times.

Then again, in Dillon, the seven-year deadline was written into, and made a part of, the amendment itself, which is a bizarre way to craft a constitutional amendment since the language becomes surplusage upon ratification.

But the one thing that’s not getting much play at the moment, beyond the empty platitudinous crap offered by Mark Herring, is what would the ERA actually do today? What would change? What could be affected? How would it impact women? How would it impact anyone else for whom “on account of sex” has become their rallying cry?

Even worse, what if it turned out that equality as fought for, and understood, by Second Wave Feminists in 1972, turned out not to be a benefit to Third Wave Feminists, but a detriment, as they no longer seek equality but “equity,” which is a nice way of saying special treatment that relieves them of the burdens society and the law imposes on men “on account of sex”?

19 thoughts on “Was The Equal Rights Amendment Ratified?

  1. Steve

    I think your last paragraph is cogent. I remember thinking in the ’70’s that it was fine if women became ‘equal’ to men, because being a man wasn’t as much fun as we made it seem. Mainstream feminism has gradually accomplished its goals and more, without acquiring formal, corresponding responsibilities. In my experience, true equality is often an unpleasant surprise for women.

  2. AMH

    I’ve wondered whether current the proponents of the ERA have considered how it would relate to the rules most colleges want to follow in Title IX investigations.

    1. delurking

      This ERA thing is and example of why we need lawyers, and hate lawyers. I read the ERA, then I read Section I of the 14th amendment, and simple logic dictates that the ERA is entirely contained within the 14th amendment. If “equal protection of the laws” cannot be denied to “any person within its jurisdiction”, then “equality of rights” cannot be denied or abridged on account of anything, which includes sex.

      But apparently that is wrong and the ERA would have an effect. And explaining why it is wrong is so long, involved, and complicated that no one will try, but let’s argue a lot about whether the ERA has been passed or not, because that is easier to understand?

      You guys are talking about things like Title IX investigations, but that is minor. Would any court really interpret the ERA to mean that state universities cannot have “men’s” and “women’s” sports anymore, but only sports, where everyone competes against everyone else? Would any court decide that Medicare must fund cervical cancer screening for men? Would any court decide the women’s breasts vs. men’s chests debate differently in the presence/absence of the ERA? Aren’t we continuously having these debates in the context of “equal protection”, and for some things shifting the rules as societal mores change? Why will adding the ERA to the Constitution actually change anything about these debates?

      1. SHG Post author

        It always impresses me that some people know what courts will do. I’ve never been able to see into the future. See Geduldig v. Aiello.

  3. Hunting Guy

    Timothy Leary.

    “Women who seek to be equal with men lack ambition.”

    Robert Heinlein.

    “Whenever women have insisted on absolute equality with men, they have invariably wound up with the dirty end of the stick. What they are and what they can do makes them superior to men, and their proper tactic is to demand special privileges, all the traffic will bear. They should never settle merely for equality. For women, “equality” is a disaster.”

    Socrates.

    “Once made equal to man, woman becomes his superior.”

    1. SHG Post author

      As an older college-aged teen, a friend once explained this to me: Women are smarter than men. They always know when they’re gonna get laid.

    1. SHG Post author

      The song works best on the fainting couch. It wouldn’t work at all if she was riding a stallion dressed like Xena.

  4. B. McLeod

    So we’re as committed as the folks who wouldn’t acknowledge the existence of women?

    I think he is praising with faint damns here.

  5. ExDenver

    It could be argued that the actual practical affect of the Amendment was to “undue” the SCt cases that uphold state laws prohibiting women from being lawyers, doctors, and voting. In other words, act as a prophylactic should the anti-sex discrimination statues that accomplished that were ever repealed by Congress.

      1. Fubar

        Bradwell will likely remain moot as long as there are at least two justices of the female persuasion on the IL Supreme Court. Currently there are three.

        Cf: Bradwell v. The State, 83 U.S. 130 (1872), at 131; which I am tempted not to quote here, just to annoy blog readers into reading the case, before ducking and running, of course:

        The statute of Illinois on the subject of admissions to the bar, enacts that no person shall be permitted to practice as an attorney or counselor at law, … without having previously obtained a license for that purpose from some two of the justices of the Supreme Court, which license shall constitute the person receiving the same an attorney and counselor at law, …

  6. Douglas Johnson

    The Equal Rights Amendment certainly has not been ratified — indeed, it has been dead since March 22, 1979, due to the 7-year deadline contained in the Proposing Clause (which is not just a “preamble,” but an operative component of what Article V requires Congress to submit to the states, specifying the mode of ratification).

    H.J. Res. 79 is a resolution that purports to retroactively nullify, by simple majority votes (and no presidential signature), the deadline in the Proposing Clause of the 1972 ERA Resolution submitted to the states by the required two-thirds votes. Supporters of the measure assert that this would validate the recent legislative actions by Nevada, Illinois, and Virginia, and make ERA part of the Constitution. It is a tower of highly dubious propositions.

    But if ratified, “What would change?” In 1983-1984, Prof. Ann Freedman, consensus congressional witness for pro-ERA groups, testified that ERA would impose absolute prohibition (not strict scrutiny) on facial sex classifications. Strict scrutiny would apply, she said, to (1) laws/policies based on unique physical characteristics, and (2) laws/polities with disparate impact, invidious, on one sex.

    The report of the U.S. House Judiciary Committee on H.J. Res. 79, issued January 2020, says approvingly, “[U]nder some theories, the ERA could provide a basis for plaintiffs to challenge laws or policies that have a disparate impact on women, or to support efforts to create gender balance in certain contexts. Additionally, the ERA’s prohibition against discrimination ‘on account of sex’ could be interpreted to prohibit discrimination on the basis of sexual orientation or gender identity.”

    1. SHG Post author

      This is the sort of argument that plays far better to the groundlings on reddit than on a blog for lawyers and judges.

      1. Douglas Johnson

        Ah. Well, my third and fourth paragraphs were purely informational, in response to the question near the end of your post, “What would the ERA actually do today?” In my groundling consciousness, I thought the recently issued views of the U.S. House Judiciary Committee on that very question might be pertinent. My third paragraph also was mostly informational, other than the last sentence. So by “This is the sort of argument” I guess you mean my first paragraph, in which I offered an opinion in answer to your headline, “Was the Equal Rights Amendment Ratified?” You referred only briefly to the January 6, 2020 opinion of the Department of Justice Office of Legal Counsel, but it is 38 pages long, and is devoted mostly to the argument that the Proposing Clause deadline in the 1972 ERA Resolution was immutable and not subject to any post-submission manipulation by the 92nd Congress or any subsequent Congress. I will not quote from it, however, nor from the letter of Prof. Michael Stokes Paulsen to the House Judiciary Committee, even though he is a noted authority on the constitutional amendment process and his letter was very crisply written, employing strong adjectives such as “legally frivolous” and “absurd,” because I am afraid it too might be deemed to be the sort of discursive argumentative material better suited to groundlings. I will not, however, be sharing that material on reddit, either. It is a zoo over there.

Comments are closed.