Introduction and Passage by Congress
In 1923, three years after women won the constitutional right to vote, Alice Paul and Crystal Eastman wrote and presented the first version of the Equal Rights Amendment (ERA) at the 75th Anniversary of the Seneca Falls Convention. In December 1923, the resolution was first introduced in Congress by Senator Charles Curtis (R-KS) and Representative Daniel R Anthony, Jr (R-KS), Susan B Anthony’s nephew.
Between 1923 and 1972, the ERA was introduced in every Congressional session, during which time the text was changed to the language passed by Congress. Support for the Amendment slowly grew, and the ERA was added to the Republican Party platform in 1940 and Democratic Party platform in 1944. In 1972, nearly fifty years after it was first introduced, Senator Birch Bayh (D-IN) authored a new version of the ERA which passed the House and Senate with the required two-thirds majority. The amendment was then sent for ratification by three-fourths of the states with a seven-year time limit.
During the 1960s, inspired by the civil rights movement, the women’s movement gained power in the United States, and fueled by a barnburner of a speech given by Shirley Chisholm during her first term elected to Congress in 1969, the ERA gained traction. In 1970, despite strong support both outside and inside the halls of Congress, the resolution was held in the House Judiciary Committee by then-Chair and labor leader Emmanuel Celler (D-NY-10). In a bold move to overcome this opposition, Representative Martha Griffiths (D-MI-17) moved forward with a discharge petition to bring the ERA directly to the floor, where it successfully passed on August 10, 1970 with a vote of 352-15. The Senate did not pass the resolution before the end of the session.
In 1971, Representative Martha Griffiths reintroduced the ERA in the next Congressional session. The resolution was approved by the U.S. House of Representatives on October 12, 1971, and by the U.S. Senate on March 22, 1972, with a seven-year ratification time limit in its introductory clause set to expire on March 22, 1979. The amendment was then sent for ratification by three-fourths of the states, as required by Article V of the U.S. Constitution.
States initially rushed to ratify the ERA, and twenty-two states ratified the Amendment within the first year. Progress slowed over the years, however, and by 1977, two years before the ratification deadline expired, only 35 of the 38 states needed had ratified. Five states attempted to rescind or limit their prior ratification but the legal status of these rescissions is uncertain.
When it became clear that the thirty-eight states needed for ratification would not occur by the 1979 deadline, legislation was introduced in Congress to extend the time limit for ratification. In 1978, Congress passed (by simple majorities in each house), and President Carter signed a joint resolution with the intent of extending the ratification deadline to June 30, 1982. No additional state legislatures ratified the ERA between March 22, 1979, and June 30, 1982, so the validity of that disputed extension was rendered moot.
Ratification Efforts After the 1982 Time Limit
Since 1982, ERA legislation has been introduced in every session of Congress. Representative Carolyn Maloney (D-NY-12) introduced the Amendment in every session between the 105th and 117th Congressional sessions. Concurrently, state advocates in the 15 unratified states continued to press to ratify the 1972 Equal Rights Amendment in their state legislatures.
In the 2010s, due in part to fourth-wave feminism and the Me Too movement, interest in the ERA was revived. This strengthened the “3 State Strategy,” where organizations worked in unratified states to reach their goal of completing the ratification of the 1972 ERA.
In 2017, led by State Senator Pat Spearman, Nevada became the first state to ratify the ERA since 1977. Illinois followed in 2018, and in 2020, Virginia’s General Assembly passed a ratification resolution for the ERA, bringing the number of state ratifications to 38.
On March 8, 2011, the 100th anniversary of International Women’s Day, Representative Tammy Baldwin (D-WI-2) introduced new legislation (H.J. Res. 47) to remove the congressionally imposed time limit for ratification of the Equal Rights Amendment. The resolution was introduced in the Senate by Senator Ben Cardin (SJ Res 39) on March 22, 2012.
The joint resolutions have been introduced in every Congressional session since, under the leadership of Representative Jackie Speier until the 117th Congress (D-CA-14) in the House, and bipartisan co-lead sponsors Senator Ben Cardin (D-MD) and Senator Lisa Murkowski (R-AK) in the Senate. The House of Representatives successfully voted two sessions in a row, in 2020 and 2021, to pass the joint resolution to remove the time limit. In the 118th Congressional session, the resolution’s language was updated to reflect that Congress views the ERA as valid having been ratified by 3/4 of the states. The resolution was introduced in the Senate as SJ Res 4 by co-lead sponsors Senator Cardin (D-MD) and Senator Murkowski (R-AK) and in the House as HJ Res 25 by Representative Ayanna Pressley (D-MA-7).
Legal Challenges and Litigation
The Office of Legal Counsel (OLC) in the Trump Administration’s Department of Justice under Attorney General Bill Barr issued a memo in anticipation of Virginia’s ratification as the 38th state. This memo stated that it was the opinion of the OLC that the National Archivist did not have the responsibility of certifying the Amendment since the time limit added in the introduction to the bill and then extended had already passed.
On January 30, 2020, the Attorneys General of Virginia, Illinois, and Nevada filed a lawsuit to require the Archivist of the United States to “carry out his statutory duty of recognizing the complete and final adoption” of the ERA as the Twenty-eighth Amendment to the Constitution.
On March 5, 2021, federal Judge Rudolph Contreras of the United States District Court for the District of Columbia dismissed the case, ruling that the ratification period for the ERA “expired long ago” and that three states’ recent ratifications had come too late to be counted in the amendment’s favor. Judge Contreras’ dismissal was appealed in the DC Court of Appeals in on September 28, 2022.
S.J. Res 4, introduced by Sen. Cardin (D) and Sen. Murkowski (R), affirms the validity of the ERA’s ratification and removes the time limit. As of May 1, the bill had 52 sponsors, including the entire Democratic Caucus. Senator Susan Collins (R-ME) is also a cosponsor. A simple majority of the Senate voted in favor of the resolution (51-47) on April 25, 2023; however, the resolution did not receive the 60 votes required for the Senate to formally take up the resolution. Senator Schumer (D-NY) changed his vote from “yes” to “no” at the end of the vote on April 25 in order to pave the way for a second vote to take up the resolution later in the 118th Congress.
US House of Representatives
H.J. Res 25, as the companion bill to S.J. Res 4, has identical wording to SJ Res 4. HJ Res 25, sponsored by Rep. Ayanna Pressley was introduced in January 2023 ; as of May 1, 2023 it had 187 cosponsors. Representatives Ayanna Pressley (D-MA) and Cori Bush (D-MO) launched a Congressional ERA Caucus in March 2023. As of May 1, 2023 the Congressional ERA Caucus had 30 members representing 18 states and the District of Columbia.
DC Court of Appeals Opinion
On February 28, 2023, the Court proclaimed, “In conclusion, the States have not clearly and indisputably shown that the Archivist had a duty to certify and publish the ERA or that Congress lacked the authority to place a time limit in the proposing clause of the ERA. Under the rigid standard required for mandamus actions, this Court must affirm the District Court’s dismissal of the States’ complaint on the ground that the lower court lacked subject matter jurisdiction.” See the Court of Appeals decision here.
The decision did not resolve the issue of the ERA time limit, and ultimately left the issue in the hands of Congress, making SJ Res 4 and HJ Res 25 influential legislation for the future of validation and recognition of the ERA as the 28th Amendment.
The ERA makes it easier for people who face discrimination on the basis of sex to seek legal recourse, and it ensures that the Supreme Court applies the same standard of review for sex discrimination cases as it applies for cases of discrimination based on race and national origin.
The ERA gives Congress greater power to enact laws that provide stronger protections against sexual assault and domestic violence.
The ERA sets a clear expectation of sex equality in all aspects of life.
Opponents of the ERA argue that since the time limit for ratification contained in the preamble to Congress’ 1972 joint resolution has passed, the ERA is dead. Legal scholars and experts assert this is not the case and contend if Congress has the power to impose a time limit, it also has the power to remove one. Both houses of Congress have introduced bipartisan legislation to affirm the ERA, remove the time limit, and consequently dismiss any question as to the validity of the ERA.
Opponents of the ERA contend that since states that ratified the ERA in the 1970s later rescinded their ratifications, the ERA has not met the requirement set out in Article V of the Constitution that ¾ of the States ratify the Amendment. However, there is strong historical precedent that once a state ratifies an Amendment it cannot take its ratification back: the 14th Amendment became part of the Constitution regardless of two states attempting to rescind prior ratifications, and those two states were included on the list of ratifying states.
Government Distinctions Based on Sex
Opponents of the ERA claim the ERA will absolutely prohibit the government from acting on account of sex, including acting on account of sex inequality. However, no constitutional right is absolute. In the case of the 1st Amendment, the government may limit the right to free speech when there is a compelling reason to do so. Similarly, in the case of the ERA, the government may draw distinctions based on sex when there is a compelling reason (e.g., it may be able to limit access to a battered women’s shelter to only women to protect them from continued trauma).
On November 7, 1972, eight months after the ERA was approved by Congress to be sent to the states to ratify as an Amendment to the US Constitution, Maryland voters approved the addition of an equal rights amendment to the Maryland state constitution (Article 46). The Maryland ERA states:
“Equality of rights under the law shall not be abridged or denied because of sex.”
As of January 2023, 27 states have state-level ERAs protecting women’s rights.
MARYLAND NOW ERA TASK FORCE
If you are interested in being on the Maryland NOW ERA Task Force or learning more about their mission and actions, click here.