The Equal Rights Amendment: Close to Adoption?

The Equal Rights Amendment: Close to Adoption?

Legal Sidebari

The Equal Rights Amendment: Close to
Adoption?
Updated November 13, 2019
The recent election of Democratic majorities in both chambers of the Virginia legislature has prompted
new discussion of the state ratifying the Equal Rights Amendment (ERA) to the U.S. Constitution when it
convenes in January. In 2018, efforts to ratify the amendment were narrowly defeated in the state House
and Senate. First presented to the states in 1972, the ERA provides that “[e]quality of rights under the law
shall not be denied or abridged by the United States or any State on account of sex.” 37 states have now
ratified the ERA, and some supporters of the amendment maintain that ratification by just one additional
state could result in its adoption. After ratification by one more state, the ERA will have been ratified by
three-fourths of the states, as required by Article V of the Constitution. Whether the ERA can be so
adopted, however, is not entirely certain. Questions concerning the expiration of Congress’s original
ratification deadline without approval by three-fourths of the states, and the rescission of ratifications by
five states between 1973 and 1978, would likely have to be addressed before the ERA would be formally
adopted.
Background. The power to amend the Constitution is established in Article V. Article V empowers
Congress to propose an amendment when two-thirds of both chambers deem it necessary, or, on the
application of two-thirds of the state legislatures, to call a convention for proposing an amendment. A
proposed amendment becomes part of the Constitution when it is ratified by the legislatures of three-
fourths of the states or by conventions in three-fourths of the states. Following ratification by three-
fourths of the states, the Archivist of the United States is to identify the ratifying states and certify that the
amendment has become part of the Constitution.
While Article V provides for the proposal and ratification of constitutional amendments, it is silent with
regard to other procedural matters, such as the time period for ratifying such amendments. H. J. Res. 208,
which first proposed the ERA, was passed by the House and Senate in 1972 during the 92nd Congress. In
its proposing clause, H. J. Res. 208 provided that, for the ERA to be adopted, three-fourths of the states
would have to ratify the amendment within “seven years from the date of its submission by the
Congress.” In accordance with this provision, the ratification deadline became March 22, 1979, seven
years after the Senate approved H. J. Res. 208.
By the fall of 1977, 35 states had ratified the ERA. In addition, as discussed further below, between 1973
and 1978, five states passed legislation to rescind their ratifications of the ERA. H. J. Res. 638 was
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introduced in October 1977 to extend the ERA’s ratification deadline until June 30, 1982. Representative
Elizabeth Holtzman, the joint resolution’s sponsor, indicated that the extension would provide an
“insurance policy to assure that the deadline will not arbitrarily end all debate on the ERA.” H. J. Res.
638 was passed by the House and Senate in 1978, but no additional states ratified the ERA before the
June 30, 1982 deadline. In 2017, Nevada became the 36th state to ratify the ERA. Illinois became the
37th state to ratify the amendment in 2018.
Legislation to revive consideration of the ERA has been introduced since the 1982 deadline. These
measures have generally assumed two approaches. One approach involves restarting the ratification
process with a new joint resolution. For example, H. J. Res. 33, introduced in the 115th Congress,
proposed a new constitutional amendment “relative to equal rights for men and women.” If the joint
resolution had been passed by the House and Senate, the amendment would have been presented to the
states for ratification.
A second approach contemplates the continued vitality of the 35 state ratifications and the adoption of the
ERA once three additional states ratify the amendment. H. J. Res. 79 and S. J. Res. 6 assume this “three-
state strategy” approach in the 116th Congress. The measures state: “[N]otwithstanding any time limit
contained in House Joint Resolution 208, 92nd Congress, as agreed to in the Senate on March 22, 1972,
the article of amendment proposed to the States in that joint resolution shall be valid to all intents and
purposes as part of the Constitution whenever ratified by the legislatures of three-fourths of the several
States.” In light of Illinois’ ratification of the ERA, proponents of the three-state strategy approach
believe that the ERA will be adopted upon ratification by one of the following 13 states: Alabama;
Arizona; Arkansas; Florida; Georgia; Louisiana; Mississippi; Missouri; North Carolina; Oklahoma; South
Carolina; Utah; or Virginia.
Some commentators have questioned the three-state strategy approach. Even if H. J. Res. 79 or S. J. Res.
6 were passed by the House and Senate and a 38th state ratifies the ERA, the amendment would likely
face challenges based on the expiration of Congress’s original ratification deadline and the rescission of
ratifications by five states between 1973 and 1978. If those rescissions are deemed effective, it would
seem that approval by three-fourths of the states will not have been achieved.
Expiration of Ratification Deadline. If a 38th state ratifies the ERA, it is likely that the amendment
would face a court challenge, and in the course of that challenge, a court would probably review the 35
state ratifications obtained before the ERA’s original deadline. Opponents of the ERA may argue that
these ratifications became invalid once the original ratification deadline passed. In Dillon v. Gloss, a
1921 case involving the ratification of the Eighteenth Amendment, the U.S. Supreme Court maintained
that ratification of a constitutional amendment should occur within a reasonable time after the amendment
is proposed. The Court explained that “proposal and ratification are not treated as unrelated acts, but as
succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated
in time.” If an additional state were to ratify the ERA in 2020, for example, 48 years would separate the
amendment’s first and 38th ratifications.
What constitutes a reasonable time period for ratification could vary depending on the conditions that
prompt consideration of a constitutional amendment. In Coleman v. Miller, a 1939 case involving a
proposed constitutional amendment that would have empowered Congress to restrict child labor, the
Court maintained that “the question of a reasonable time in many cases would involve . . . an appraisal of
a great variety of relevant conditions, political, social and economic, which can hardly be said to be
within the appropriate range of evidence receivable in a court of justice[.]” The Court in Coleman
indicated that Congress, and not the courts, should decide when an amendment has “lost its vitality”
because of a lapse of time. Since Coleman, the Court has not considered a similar case involving the
ratification of constitutional amendments.

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While Coleman might arguably suggest that Congress can extend a ratification period based on ongoing
conditions, it remains uncertain whether Congress may allow that period to continue indefinitely,
particularly when a ratification deadline was previously established. The legislative history of H. J. Res.
638, which extended the ratification deadline in 1978, suggests that an unending ratification period may
not be permissible. During consideration of H. J. Res. 638, the House Committee on the Judiciary
maintained that an extension of the ERA ratification period was permissible. However, the identification
of a new ratification deadline in H. J. Res. 638 may have influenced the committee’s position. The
committee interpreted Dillon and Coleman as implying congressional authority to extend a ratification
deadline if it is reasonable and does not bind subsequent Congresses. The committee was guided by the
conclusions of various constitutional law scholars, including Justice Ruth Bader Ginsburg, then a
professor of law at Columbia University. Justice Ginsburg maintained that Dillon and Coleman
“bracketed the issue”; that is, Dillon held that Congress could establish a ratification deadline at the time
an amendment is proposed, and Coleman confirmed that Congress could defer the question of a
reasonable time period for ratification. According to Justice Ginsburg, an extension of the deadline was a
“middle course” that ensured that a proposed amendment would not remain in state legislatures
indefinitely, and evidenced a congressional determination that the amendment was still vibrant and
reflective of public interests.
Unlike H. J. Res. 638, H. J. Res. 79 and S. J. Res. 6 in the current Congress would eliminate rather than
extend the ERA’s ratification deadline. Approval of either measure would allow the ERA to remain in
state legislatures indefinitely until a 38th state ratifies the amendment. While it could be argued that the
joint resolutions reflect Congress’s determination that there is continued public interest in an ERA, an
unending ratification period would seem to undermine the notion that an amendment should not remain in
state legislatures indefinitely.
Nevertheless, proponents of the ERA may cite the adoption of the Twenty-Seventh Amendment to support
their position that an amendment can still be viable even if centuries pass before ratification by three-
fourths of the states occurs. The Twenty-Seventh Amendment, which addresses congressional pay, was
first presented to the states in 1789. The amendment was not adopted until 1992, following ratification by
Michigan, the 38th state to ratify the amendment. Unlike the ERA, however, Congress did not establish a
ratification deadline for the Twenty-Seventh Amendment. In addition, the Twenty-Seventh Amendment
was adopted without the need to consider the effect of state rescissions of prior ratifications.
Notably, in 1982, a federal district court in Idaho concluded that Congress’s extension of the ratification
period was improper because Congress could not change the ratification deadline once it was established
in 1972. In State of Idaho v. Freeman, the court contended that the deadline was part of the amendment
itself and could not be changed once the ERA was sent to the states: “Once the proposal has been
formulated and sent to the states, the time period could not be changed any more than the entity
designated to ratify could be changed from the state legislature to a state convention or vice versa.” On
appeal to the Supreme Court, the district court’s judgment was vacated and the district court was
instructed to dismiss the case as moot because the ERA’s extension deadline had passed. Nevertheless,
Freeman provides at least one example of how a court might consider a removal of the ERA’s deadline.
Rescission of Ratifications. If a 38th state ratifies the ERA, opponents of the amendment may contend
that the five state rescissions should be recognized. Idaho, Kentucky, Nebraska, South Dakota, and
Tennessee rescinded their ratifications of the ERA between 1973 and 1978. In addition to evaluating the
validity of the ERA extension, as discussed above, the federal district court in Freeman also considered
the effect of Idaho’s 1977 rescission of its original ratification of the ERA. Reviewing Article V, the court
emphasized that an amendment cannot become part of the Constitution until a state has determined that
there is consensus among its people and three-fourths of the states ratify the amendment. Accordingly,
the court maintained that a subsequent rescission should be recognized because it promotes “the
democratic ideal by giving a truer picture of the people’s will[.]” The court concluded that a failure to

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recognize Idaho’s rescission would allow the ERA to become part of the Constitution when the state’s
people were not unified in their consent. Ultimately, the court contended that a rescission of a prior
ratification “is clearly a proper exercise of a state’s power . . . especially when that act would give a truer
picture of local sentiment regarding the proposed amendment.” As indicated, Freeman was vacated and
the decision was dismissed as moot following the end of the ERA’s extension period. Nevertheless, the
case illustrates how one court evaluated a state recession of the amendment.

Author Information

Jon O. Shimabukuro

Legislative Attorney

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