Is 2021 the Equal Rights Amendment’s Year?
ERA ratification depends on the question of whether courts or Congress should resolve disputes

by Hank Lacey

With the advent of the Biden administration and some evidence of bipartisan support in Congress for the Equal Rights Amendment, advocates for the long-sought landmark measure are expressing optimism that it will become the 29th Amendment to the U.S. Constitution this year. While the requisite number of states have ratified the amendment in the past few years, litigation by opponents poses a threat to its long-sought enshrinement in the law.

First introduced in Congress in 1923 and finally sent to the states in March 1972, the ERA was approved by 35 states before the end of 1977. Then the push for the necessary three-fourths majority — 38 states — stalled. Meanwhile, Congress specified a ratification deadline of March 22, 1979. That deadline was later extended to June 30, 1982. That lengthened deadline expired with no additional state legislatures giving their support.

Eleanor Smeal, president of the Feminist Majority Foundation and an advocate for the ERA since the 1970s, thinks the case for the amendment is even more powerful now than it was nearly 40 years ago when that time limit passed. “We’ve learned so much about the need for it,” she said. “If anything, we know it is needed more than you would have thought all these years later.” Smeal mentioned the imperative of providing a constitutional foundation for legislation to combat sexual violence, to reduce sex discrimination in government workplaces and by companies that contract with the government, and to eliminate pay disparity and economic inequality between the sexes.

Whether Congress had the authority to set the 1977 deadline in the first place is a contentious question. Another argument centers on whether Congress could change the deadline to 1982 once the earlier one had gone by. Yet a third is whether a deadline can constrain ratification after it passes. Each of the questions are at the heart of two lawsuits that aim to compel the administrator of the National Archives, who is the official responsible for proclaiming the adoption of constitutional amendments, to fulfill his ministerial duty. The first of the cases is now pending in the 1st U.S. Circuit Court of Appeals in Boston; the other was filed in the federal district court in Washington, D.C.

“Those questions are vigorously disputed,” said Helen Norton, professor and Ira C. Rothgerber, Jr. chair in constitutional law at the University of Colorado Law School. She said that, during the 1920s, the Supreme Court decided a case that included a suggestion “that Congress does have the authority to impose an enforceable deadline for ratification in the text of the amendment itself.” That case — known as Dillon v. Gloss — might, however, be contradicted by a later decision. In the 1939 case of Coleman v. Miller, then-Chief Justice Charles Evans Hughes suggested in his majority opinion that Congress could include a ratification deadline “either in the proposed amendment or in the resolution of submission.”

Neither the original 1979 deadline nor the extended 1982 deadline set by Congress for ratification of the ERA were included in the proposed amendment itself; both were included in joint resolutions that accompanied the amendment. “So the language of what states actually ratified didn’t include a deadline,” Norton said. “There’s no judicial precedent, and there’s no historical precedent, regarding a dispute over the effectiveness of a deadline that’s not included in the text of the amendment itself.” On the other hand, Congress also included undisputed deadlines in the joint resolutions that accompanied its approval of the 18th, 20th, 21st, and 22nd Amendments.

Beyond that legal conundrum, supporters and skeptics of the ERA must contend with another problem: whether the federal courts have the power even to decide whether Congress can set a ratification deadline or whether the deadline is binding. “In other words, the controversy, the additional controversy, is whether or not this is a political question, which means that it ultimately is left to political actors, meaning Congress, to decide,” Norton said. “Or is this a legal question?” The 1939 Coleman case includes language that suggests the former. “The decision by the Congress … of the question whether the amendment had been adopted within a reasonable time would not be subject to review by the courts,” Hughes wrote.

The same jurisdictional issue that may stand in the way of a court deciding the validity of a ratification deadline, also known as the political question doctrine, might also apply to the question whether a court could compel the Archivist of the United States to pronounce the ERA part of the Constitution or prevent him from doing so. If it does, then the federal legislature would have to decide whether to force the issue. “The Constitution gives no power to the executive branch on these matters,” Norton said. “Congress has a role, the states have a role.”

In deciding not to publish the ERA and announce its adoption, Archivist David Ferriero has relied on a Jan. 6, 2020 advisory opinion by Steven Engel, the Trump administration’s assistant attorney general in charge of the Office of Legal Counsel, that the Trump administration did not believe that the ERA had been properly ratified. While the Biden administration has not yet commented on the question whether the ERA has been ratified, the president and the vice president have both publicly spoken of their support for the amendment and their 2020 campaign platform included a promise to press Congress to recognize that the amendment has been adopted by three-fourths of the states.

Congress, now under Democratic control, may not need that much convincing. Last week a bipartisan group of legislators introduced a joint resolution in both the House of Representatives and the Senate that would retroactively eliminate that time limit. Republican Sen. Lisa Murkowski of Alaska, one of the co-sponsors of the measure, said in a statement that she “can think of no better legislation to lead with than one that removes impediments to find ratification of the Equal Rights Amendment — an amendment that firmly embeds in law equality between men and women.” Meanwhile, her Senate co-sponsor, Democrat Ben Cardin of Maryland, said “there should be no time limit on equality.” All of Colorado’s Democratic representatives are House co-sponsors of the proposal.

The Constitution currently contains no language that specifically assures women of equal treatment under the law. Instead, the U.S. Supreme Court held, in a 1976 case called Craig v. Boren, that governments must show only that laws discriminating against women serve “important governmental objectives” and “be substantially related to achievement of those objectives.”

“The Equal Rights Amendment is designed specifically to make women of equal citizenship stature in all aspects of human activity,” the late Justice Ruth Bader Ginsburg said at a conference in August 2018. Among other possible impacts, its inclusion in the Constitution would likely mean that courts would have to scrutinize laws that discriminate on the basis of sex to see if they are “necessary to a compelling government interest,” Norton said. That, in turn “would mean that, in the closer cases, the government would lose more often.”

Nevada became the 36th state to ratify the ERA in March 2017, Illinois became the 37th state to do so in May 2018, and Virginia became the 38th, and clinching, state to adopt the amendment in January 2020.

Legislatures in five states — Idaho, Kentucky, Nebraska, South Dakota and Tennessee — have voted to rescind their previous approval of the ERA. Norton said that, in her view, an effort to revoke a previous ratification imprimatur may not be constitutionally valid. “The Constitution expressly gives states the power to ratify proposed amendments,” Norton said, “but it doesn’t say anything about any power to revoke or rescind ratifications.” Norton explained that, after the Civil War, some states attempted to rescind their ratifications of the 14th Amendment. Congress ignored those state efforts to backtrack from their homologation. There is little Supreme Court precedent to help answer the question whether that was proper, but in 1939 Hughes wrote that “the question of the efficacy of ratifications by state legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment.”

All other national constitutions in the world that have been adopted since 1950 include a provision similar to the ERA.

 

This article appears in the Feb. 1 issue of Law Week Colorado. To read other articles from that issue, order a copy online. Subscribers can request a digital PDF of the issue.