About the Equal Rights Amendment
The Equal Rights Amendment (ERA) would enshrine in the United States Constitution the concept of women’s equality and create a national legal standard banning all forms of sex discrimination in the supreme law of the land.
Brief History of the ERA
The ERA, authored by prominent suffragist and National Woman’s Party leader Alice Paul, was first introduced in Congress in 1923, and then again in every Congressional session until it passed in 1972. In its original form, as drafted by Alice Paul, the first section of the ERA read: “Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.” In 1943, however, the Senate Judiciary Committee amended this language to read: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” When the ERA finally passed, section 1 contained the 1943 language.
Like every proposed constitutional amendment, after it passed by a two-thirds vote of both the House and Senate, the ERA was sent to the states for ratification. Congress, however, had imposed – in the preamble of the ERA – a seven-year arbitrary timeline on the ratification process.
38 states must ratify an amendment before it can become part of the U.S. Constitution. Hawaii was the first state to ratify, less than an hour after the ERA passed out of Congress. Other states quickly followed. By January 1977, 35 states had ratified the amendment. With the seven-year deadline approaching, however, women’s rights activists, led by the National Organization for Women (NOW), took to the streets to demand removal of the timeline. Tens of thousands marched in Washington in 1978 as a result of NOW’s comprehensive campaign and hundreds of thousands more sent telegrams to Congress, shutting down Western Union.
Congress eventually granted an extension of the deadline until June 30, 1982. The opposition to the ERA, led by Chambers of Commerce, the National Association of Manufacturers, and the insurance industry, was also organized, especially in the South, and they managed to hold back ratification in 15 states. When the deadline expired, no new states had ratified. The campaign was still three states short.
The fight for the ERA, however, did not end in 1982. On March 22, 2017, Nevada became the 36th state to ratify the Equal Rights Amendment. In May of 2018, Illinois became the 37th state to ratify the ERA. In January of 2020, Virginia become the 38th and final state needed to ratify the ERA. The 12 states that have not yet ratified the ERA are: Alabama, Arizona, Arkansas, Florida, Georgia, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, and Utah.
Continued Need for the ERA
The ERA is just as needed now as it was when it was first passed in Congress in 1972. It is not just symbolic. The ERA would have a real impact on women and girls’ lives.
The drive to ratify the ERA in the 1970s and 1980s spurred a vigorous women’s rights movement that made impressive gains for women in education and athletics, employment and credit, reproductive health and rights, and so much more, but these gains have been under constant attack. Laws prohibiting discrimination against women are subject to the whims of Congress. They can be changed, gutted, or even eliminated with a simple majority vote and the signature of the President.
Supreme Court Justice Ruth Bader Ginsburg has long supported the ERA, and stated in a 2014 interview: “If I could choose an amendment to add to the Constitution, it would be the Equal Rights Amendment.” Having an ERA, she explained, would show that “women are people equal in stature before the law.” She called that a fundamental principle that “belongs in our Constitution,” warning that anti-discrimination laws can be repealed or altered. “I would like my granddaughters, when they pick up the Constitution, to see that notion – that women and men are persons of equal stature – I’d like them to see that is a basic principle of our society.”
Attacks from Congress, however, are only one way in which women can lose protection from discrimination. The conservative majority of the Supreme Court has also limited or gutted federal statutes prohibiting sex discrimination. In 2011, the late Justice Antonin Scalia, a conservative leader on the Court, stated that nothing in the U.S. Constitution prohibits sex discrimination.
In 2014, the Supreme Court, in Burwell v. Hobby Lobby, rolled back gains made through the Affordable Care Act (ACA), ruling that closely-held, for-profit corporations could discriminate against women by refusing to provide health insurance coverage for FDA-approved contraceptives – a key part of women’s preventive health care – in employee health plans. In that case, the majority of the Court focused almost exclusively on whether the ACA violated a corporation’s statutory rights under the Religious Freedom Restoration Act. Without an ERA, the Court did not consider the government’s interest in remedying and preventing sex discrimination by prohibiting women’s healthcare from being singled out for discriminatory treatment.
An ERA would have forced the Court to weight a constitutional right to be free from sex discrimination against a mere statute, which can never override a constitutional provision.
The ERA would not only give a constitutional basis to protect the gains we have won, but would also give Congress more power to create proactive legislation that would secure women’s equality going forward. For example, when it was passed in 1994, the Violence Against Women Act (VAWA) made ending gender-based violence a national priority and empowered survivors to seek their own justice through a private, federal civil right of action against perpetrators – even if the state failed to prosecute. That same year, a college survivor attempted to use VAWA to sue her rapist and her university for mishandling her sexual assault claim. The courts prevented her case from moving forward, and the Supreme Court later ruled that Congress had no constitutional authority to enact the VAWA provision that provided a federal civil right of action to use in her sexual assault case. The ERA would give Congress the power to enact this kind of provision, and others, to help prevent systemic violence against women and give survivors better access to justice.
Status of the ERA
The ERA has been reintroduced with dozens of sponsors in both houses of Congress in every session since 1982. These ERA resolutions have not included a timeline on ratification.
In addition, resolutions to rescind the arbitrary timeline on ERA ratification, which would obviate the need for Congress to pass the ERA again, have also been introduced in both houses of Congress. Since 35 states have ratified the ERA before January 30, 1980, only 3 more states would have to ratify for the amendment to be adopted. This is called the “three-state strategy.” In 2017, Nevada ratified the ERA. In 2018, Illinois ratified the ERA. In 2020, Virginia became the 38th state to ratify the ERA. The fight now moves to Congress and the courts.