August 26 marked the 98th anniversary of the ratification of the 19th Amendment to the U.S. Constitution which granted women the right to vote. Against that backdrop, and with the rise of the #MeToo sexual harassment and assault movement and heightened scrutiny of pay inequity, the proposed Equal Rights Amendment to the Constitution appears to be enjoying a resurgence.

The recent ratification of the Equal Rights Amendment by two additional states—Nevada on March 22, 2017, and Illinois on May 30, 2018—has revived the women’s equality movement, and has emboldened activists to take up the proposed amendment which has lain dormant for nearly four decades.

More commonly known as the “ERA,” the Equal Rights Amendment has a long, storied history in United States political discourse. A predecessor version was first introduced in Congress in 1921, and it has becomes a rallying cry of the women’s rights movement dating back to its drafting by Burlington County, New Jersey, natives Alice Paul and Crystal Eastman.

The ERA was originally presented by Alice Paul in 1923 as the “Lucretia Mott Amendment” in the celebration of the 75th anniversary of the 1848 Seneca Falls Convention and the Declaration of Sentiments addressing equal rights for women.

The ERA seeks to create a federal right to equality, as follows:

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.

Article V of the U.S. Constitution prescribes how an amendment can become a part of the nation’s governing document. There are two ways, one of which is a Constitutional Convention, a process that has not been used since its initial drafting. All 27 successful Amendments have been ratified by the other method, an arduous process requiring super-majority assent in both Houses of Congress followed by three-quarters of the several states’ legislatures.

The ERA almost reached the critical peak for Constitutional ratification in 1977 under the latter process. After achieving bicameral approval in the U.S. House of Representatives on Oct. 12, 1971, and the Senate on March 22, 1972, the ERA fell short of the necessary 38 states required for ratification with only 35 states passing it prior to the expiration of a March 22, 1979, deadline imposed in Congress’ approval under H.J. Res. 208.

Congress approved Joint Resolution H.J. Res. 638 in 1978, seeking to extend the ERA’s ratification sunset to June 30, 1982, but no other state adopted the ERA prior to that revised deadline expiring, so the proposed amendment lapsed.

As of that original deadline the ERA had been ratified by the following states:

Hawaii (March 22, 1972)

New Hampshire (March 23, 1972)

Delaware (March 23, 1972)

Iowa (March 24, 1972)

Idaho (March 24, 1972)

Kansas (March 28, 1972)

Nebraska (March 29, 1972)

Texas (March 30, 1972)

Tennessee (April 4, 1972)

Alaska (April 5, 1972)

Rhode Island (April 14, 1972)

New Jersey (April 17, 1972)

Colorado (April 21, 1972)

West Virginia (April 22, 1972)

Wisconsin (April 26, 1972)

New York (May 18, 1972)

Michigan (May 22, 1972)

Maryland (May 26, 1972)

Massachusetts (June 21, 1972)

Kentucky (June 26, 1972)

Pennsylvania (September 27, 1972)

California (November 13, 1972)

Wyoming (January 26, 1973)

South Dakota (February 5, 1973)

Oregon (February 8, 1973)[27]

Minnesota (February 8, 1973)

New Mexico (February 28, 1973)

Vermont (March 1, 1973)

Connecticut (March 15, 1973)

Washington (March 22, 1973)

Maine (January 18, 1974)

Montana (January 25, 1974)

Ohio (February 7, 1974)

North Dakota (March 19, 1975)

Indiana (January 24, 1977)

The ERA’s failure to receive approval from three additional states is largely attributed to the efforts of Illinois conservative Republican activist Phyllis Schlafly who led a nationwide movement entitled “Stop ERA.” Schlafly and others predicted that the ERA would lead to women in combat, an end to automatic alimony for women, the termination of the preference to award custody to divorcing mothers, and gay marriage, among others. Schlafly, who died in 2016, lived to see all of her predictions come true, even without the passage of the ERA.

A legal dispute arose in 1981 over whether Congress had authority to extend its own ratification deadline. Initially, the U.S. District Court for the District of Idaho ruled that the ERA’s deadline extension was unconstitutional under Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981). However, the U.S. Supreme Court vacated that determination in NOW v. Idaho, 459 U.S. 809 (1982), and remanded to the trial court for dismissal because the Administrator of General Services had issued a memorandum on the issue of extension “suggesting mootness.”

Previously approved ratifications were later subjected to attempted rescission by five states as follows:

Nebraska (March 15, 1973)

Tennessee (April 23, 1974)

Idaho (February 8, 1977)

Kentucky (March 17, 1978)

South Dakota (March 1, 1979)

South Dakota’s ratification of the ERA stated it would only be valid up until March 22, 1979, and that any ratification activities transpiring after that date anywhere else would be considered by South Dakota to be null and void. However, federal law appears to preclude a state’s rescission of a prior ratification of a proposed constitutional amendment, and may also bind the federal government to a ratification, even if it came with restrictions such as a deadline.

1 U.S.C. 106b compels the U.S. National Archives and Records Administration (NARA) to record “the States by which … [a proposed amendment] may have been adopted” and thereafter publish and amendment once the requisite numbers have ratified it.

Case in point, even though New Jersey rescinded its approval of the 14th Amendment after first voting to ratify it, the Garden State was still listed as one of the necessary states needed for final approval of the Amendment when it was ultimately published as a bona fide amendment. The attempt to rescind the ratification was rejected, just as it was for Ohio which attempted to rescind its ratification of the 14th Amendment as well. New York voted to retract its approval of its prior ratification of the 15th Amendment, doing so just prior to the final state ratifying it. However, the Empire State was still counted in publishing the 15th Amendment as final, thus rejecting the effectiveness of New York’s purported rescission.

While the U.S. Constitution is silent regarding a state’s authority to rescind its ratification of a proposed, but not yet adopted, constitutional amendment, the concept is not without controversy. The state’s “right” to rescind a prior approval vote was upheld in Idaho v. Freeman (at 1118-21), but that determination was vacated by the U.S. Supreme Court in NOW v. Idaho, just as the Idaho court’s rejection of an amendment deadline extension was also dismissed as moot.

As noted previously, over 40 years later, the following additional states ratified the ERA: Nevada (March 22, 2017) and Illinois (May 30, 2018).

In 2016, the American Bar Association House of Delegates adopted a Resolution of support for the ERA. Moreover, the recent ratification of the ERA by two new states has sparked a new effort to complete the Constitutional amendment process. Now that 37 of the necessary 38 States have adopted the proposed ERA after Congress’ approval, the effort is gaining traction. The National Organization for Women which has long championed a “Three State Strategy,” that rejects the conditional deadlines imposed by Congress and several states as not legally enforceable. The current political climate has served to reignite the issue of equal rights for women, providing fertile ground to finally achieve Alice Paul’s dream of “ordinary equality” in the U.S. Constitution.

 

Thomas H. Prol is partner at Laddey, Clark & Ryan, in Sparta. In addition to serving as the president of the NJ State Bar Association in 2016-17, he was a trustee of the state bar foundation from 2012-18, and is a founding and current board member of Garden State Equality, the largest LGBT civil rights organization in New Jersey.