The hazy future of the Equal Rights Amendment

In response to Virginia’s ratification of the Equal Rights Amendment, the House of Representatives voted last week to remove the deadline for ratification in a largely party-line vote. Virginia became the 38th state needed to ratify the Equal Rights Amendment — ostensibly enough to make it the 28th Amendment to the Constitution — but what was lauded as a celebratory moment has now turned sour, with legal scholars weighing in on the validity (and legality) of the retroactive effort to push the ERA forward.

Originally introduced in 1923, the ERA didn’t pass Congress until 1972. Lawmakers originally set its ratification deadline for 1979, but it was later pushed back until 1982. That's where it's been since, but with Virginia becoming the all-important 38th state to ratify the amendment earlier this year, advocates are hoping that the House's vote to eliminate the deadline could breathe new life into the legislation. "No time limit imposed by Congress (and not explicitly provided for in the Constitution) has ever blocked a constitutional amendment from entering into force," Jessica Neuwirth, co-founder and co-president of the ERA Coalition, an advocacy network working toward the amendment's ratification, told Mic in an email.

The aim of the ERA is to prohibit sex and gender-based discrimination, and supporters say that it would help end battles for equal pay, install protections against gender-based violence, and boost equitable education and healthcare opportunities. Basically, any sector of economic, political, and social life where a woman is discriminated against because of her gender would be rendered illegal. "The wage gap is well-documented, pregnancy discrimination has forced many women out of jobs, and in several Supreme Court cases, cases of gender-based violence have been dismissed for lack of a constitutional basis," Neuwirth says.

Some GOP lawmakers opposed to the ERA are concerned that its passage would ensure bodily rights to women, meaning that laws chipping away at abortion access would no longer be constitutional. All Democrats voted to remove the ratification deadline, along with five Republicans; the rest of the Republican caucus, including 13 women, voted against the move.

The Equal Rights Amendment states simply that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” Though the text of the proposed amendment is simple, the fight against it is not. In one year, 30 states ratified the amendment, but it began to stall in statehouses due to an effort largely led by conservative politician and activist Phyllis Schlafly.

"Having an ERA would mean that we no longer have to fight regressive policies state by state, job by job, product by product."

As a constitutional amendment, the ERA is different from the usual acts that Congress votes on: For one, two-thirds of the 50 United States need to ratify an amendment by passing it through their own state legislatures, and additionally, amendments can’t be overturned or weakened, like we’ve seen happen with other landmark civil rights protections laws such as the Voting Rights Act. That's why the House vote this week was on one detail regarding the amendment — its expiration date — rather than whether to enshrine the thing into law.

"Having an ERA would mean that we no longer have to fight regressive policies state by state, job by job, product by product. We are half the population and deserve more than the piecemeal approach we have now," Jennifer Weiss-Wolf, the vice president of development and Women and Democracy fellow at the Brennan Center for Justice, told Mic in an email.

According to legal scholars, it’s up to the Office of Legal Counsel to decide the fate of the ERA — and if that's the case, the prognosis doesn't look good. The Trump administration considers the amendment "expired," NPR reported; the assistant attorney general at the OLC wrote in a statement that, “We conclude that Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA resolution is no longer pending.”

Advocates of the ERA disagree, saying the House has the authority to adjust the ratification deadline given that Congress made the deadline in the first place. There is a "strong legal argument" that the deadline can be removed, Neuwirth says. "It was created by Congress and extended by Congress, so surely it can be removed by Congress," she adds.

Even with Congress’s latest move to rejuvenate the ERA, three states — Alabama, South Dakota, and Louisiana — filed a federal lawsuit to block the passage of the ERA in December. The amendment has over 90% support among Americans, but the public's overwhelming support for the amendment is at odds with this week’s party line vote. When the amendment was first introduced, there was bipartisan support for its passage, and its originator, Alice Paul, was a Republican. But that hasn't made it law yet — and while we're closer now than we've been in a while, it's unclear still whether the ERA will ever get over the finish line.