CBA Record May-June 2022

A New Era for the ERA?

Our 28th Amendment to the U.S. Constitution

By Michele Honora Thorne

A fter women won equal suffrage rights in 1920 with passage of the 19th Amendment to the U.S. Con stitution, the Equal Rights Amendment was proposed as the next step toward full equality for women – and all Americans. The ERA was first introduced to Con gress in 1923 by two Republicans from Kansas. During its first few decades, the ERA faced opposition from social welfare and labor activists who sought to maintain special protections extended to women but not men. As those laws became more gender-neutral, support for the ERA grew and was mobilized by the women’s rights movement of the 1960s and ‘70s. The ERA introduced to Congress in 1971 reads: 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 legis lation, the provisions of this article. Section 3. This amendment shall take effect two years after the date of rati fication. Amendment Procedure Article V of the Constitution sets forth the amendment process and reads in per tinent part: The Congress, whenever two thirds of both houses shall deem it neces sary, shall propose amendments to this

Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitu tion, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratifica tion may be proposed by the Congress. Adding a constitutional amendment is essentially a two-step process: (1) proposal by at least a two-thirds vote in each house of Congress, and (2) rati fication by three-fourths of the states. For the ERA, the first step of the amendment process was completed in 1972.OnOctober 12, 1971, theU.S. House of Representatives passed the ERA by an overwhelming, bipartisan vote of 354 to 24. Then, on March 22, 1972, the U.S. Senate passed the ERA by a vote of 84 to 8, which was also bipartisan and well in excess of the two-thirds-vote threshold. The ERA was then sent to the states for ratification as the second step of the amendment process. Between 1972 and 1977, 35 state legislatures rati fied the ERA. Between 2017 and 2020, three more states ratified: Nevada, Illi nois, and Virginia, the 38th and final state needed to reach three-fourths, which ratified on January 27, 2020. Upon receipt of official notice that a proposed amendment has been adopted

according to the provisions of the Con stitution, the national archivist has a min isterial duty under 1 U.S.C. 106b to issue a certificate specifying the states by which it was adopted and publish the amendment. Objections to Certification However, on January 6, 2020, in anticipa tion of Virginia becoming the 38th and final state needed to ratify the ERA, the Trump administration (through the U.S. DOJ) issued a specifically political opin ion to the national archivist. According to the opinion, the ERA had expired and the national archivist, who works within the Executive Branch, was told not to certify and publish the amendment. The opinion states, in part, “Congress has constitutional authority to impose a deadline for ratifying a proposed con stitutional amendment.” However, that statement is untethered to the actual text of the Constitution and its plain meaning. An additional objection to certifying the ERA as the 28th Amendment is that, after ratifying, a few states have attempted to rescind their ratifications. Between 1973 and 1979, five states (Nebraska, Tennes see, Idaho, Kentucky and South Dakota) attempted to rescind. Most recently, in 2021, North Dakota attempted to rescind. Rescission of Ratification: History Can states rescind their ratifications? Article V mentions only the positive act of ratification, not rescissions. Further,

CBA RECORD 31