By Barbara Levine
As Virginia teeters on a landmark opportunity to become the 38th state to ratify and thus put into effect the Equal Rights Amendment (ERA), we must ask the question: Is it time, or has too much time passed?
The Equal Rights Amendment sought to guarantee that “(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; (2) Congress shall have the power to enforce, by appropriate legislation, the provisions of this article; and (3) This amendment shall take effect 2 years after the date of ratification.” It was passed by 2/3 majorities in the Senate and then in the House on March 22, 1972. It was then sent to the individual states for the required ratification by 3/4 of the states as the 27th Amendment to the Constitution, with a 7-year deadline.
By 1977, ratification rates had diminished to a trickle, and of the 35 states that had already agreed to it, four had new legislatures and wanted to rescind their initial approval. Realizing that the 7-year deadline was rapidly approaching, ERA supporters worked tirelessly to obtain a House Joint Resolution (H.J. Res. 638) extending the deadline by 3 years, to June 30, 1982. Because the Resolution did not receive a 2/3 vote, but only a simple majority, ERA supporters also sought and received President Jimmy Carter’s signature. And there it sat. Over the years between 1995 and 2016, ratification bills were introduced in a number of legislatures, but never received the required votes from both houses. The Amendment was reintroduced in Congress on July 14, 1982, and again in the 110th Congress (2007–2008). These were actually proposals without any deadline, but would of course now require another 2/3 majority of the House and Senate and again ratification by 3/4 of the states. Was it better to just try to push the original Amendment to the necessary 38-state number? To do so would have required clearing two significant hurdles: (1) The expired time limit was clearly the biggest question; but there was also the matter of (2) whether a state could rescind a prior ratification. As more and more legislatures around the country began to turn red, this issue started to take on greater significance.
The Madison Amendment
This amendment, first proposed by James Madison at a meeting of the First Congress on June 8, 1789, simply requires that any increases or decreases in salary for members of Congress not take effect until the next set of terms. It was passed by both Houses and sent to the then-13 states for ratification, where it apparently fell through the cracks … until 1982, when Gregory Watson, an undergrad at the University of Texas at Austin, wrote a paper about it for his political science class. He argued that the amendment was still viable and could still be ratified. He received a “C”. Watson appealed the grade, got no relief, and then decided to start a letter-writing campaign to state legislatures. Prior to 1982, eleven states had ratified the Madison Amendment. By May 7, 1992, 28 more states voted to ratify. On May 18, 1992, the Archivist of the United States (Don W. Wilson) certified that the amendment’s ratification had been completed and the 27th Amendment to the Constitution was formally published. In 2016, Zachary Elkins, a professor in the Department of Government, tracked down Wilson’s former professor and suggested that she change Wilson’s grade. The registrar ultimately changed that “C” to an “A”.
But why was the Madison Amendment still viable, while the ERA may be out of time? First, Article V of the Constitution gives Congress the authority to direct the process for ratification of an amendment. The original Madison Amendment did not have any time limit imposed for ratification. In fact, no amendments contained time limits until 1921 (in Dill v. Gloss, where the Supreme Court allowed Congress to set time limits for ratification. That ruling affected the 18th Amendment (prohibition) and every amendment thereafter except the 19th (suffrage) and the 27th.
This ruling was significantly modified in 1939 in Coleman v. Miller, which states that Congress has the power to promulgate an amendment after 3/4 of the states ratify. This means that Congress can change or even remove the time limitation once 3/4 of the states have voted for ratification. [See “The Equal Rights Amendment: Why the ERA Remains Legally Viable And Properly Before the States,” William and Mary Journal of Law, Vol. 3, Issue 1, 1997, Allison L. Held, Sheryl L. Herndon, Danielle M. Stager, for a very thorough and clear explanation]. So there are viable arguments that allow Congress to modify or even remove the time limit to allow the ERA to pass. Likewise, and again deferring to the William and Mary piece, it appears that states are not permitted to rescind once they have voted for an amendment, because to do so might encourage other states to change or alter their decisions. However, in viewing a majority of states in favor of an amendment, a state that first voted against it may change that vote to be in favor.
Encouraged by the Madison Amendment and the Coleman decision, along with reactions to the Trump presidency and the #Me Too movement, a renewed effort, known as the “three state strategy” [see William and Mary Journal of Law, above] was launched . On March 22, 2017, Nevada became the 36th state to ratify the ERA, followed by Illinois as the 37th on May 30, 2018. Virginia now stands in the position of becoming the 38th and thus final state needed for ratification.
Do We Still Need an Equal Rights Amendment?
One might argue that in the current climate, we need one more than ever. Despite some gains made over the past 46 years since the ERA was passed by Congress, women are
“still poor, suffer from widespread gender-based violence, endure extensive regulation of our reproductive lives, experience sex-based discrimination in all occupational categories, are sexually harassed and subjected to biased consideration in hiring and promotion, subjected to discriminatory treatment by employers in pregnancy and motherhood, among numerous other practices that seek to subjugate women.”
—Vice President Bonnie Grabenhofer, National Organization for Women (NOW), www.NOW.org
As more states begin to dismantle Planned Parenthood clinics, as the President names his choice for a fifth conservative, anti-abortion and possibly anti–contraception justice to the Supreme Court, and as more and more cases of sexual harassment and discrimination fill our airwaves, the answer may well be that an Equal Rights Amendment is now crucial.
One other question that arises in considering the ERA: what is its effect on LGBTQ rights? According to Bonnie Grabenhofer, the ERA is a gay rights amendment as well because the language demands that equality of rights shall “not be abridged … on account of sex.”
So … should Virginia become the 38th state to ratify the ERA, even though certification may not take place because of time limits? Should states be allowed to rescind a vote that may have taken place 20-plus years ago? Do we even need an ERA? Will the ERA actually protect LGBTQ rights? You decide.