It is long past time to bury the proposed amendment.
Is the federal Equal Rights Amendment still before the states? This week, the Subcommittee on the Constitution, Civil Rights and Civil Liberties of the House Judiciary Committee held a hearing on the ERA. The subcommittee should conclude that the ERA is dead. Indeed, the Supreme Court itself has effectively said so.
In March 1972, Congress proposed the Equal Rights Amendment for consideration by the states. The ERA provides 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.” The preamble to the resolution proposing the ERA specified that the amendment “shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress.” In the next seven years, 35 of the required 38 states ratified the ERA. Five of those states, however, subsequently passed resolutions withdrawing their ratifications. Before the seven-year ratification period provided in the original resolution expired, Congress passed a resolution, by a simple majority vote, purporting to extend the date of the proposed amendment by 39 months, until June 30, 1982.
In May 1979, two states — Arizona, which had not ratified the ERA, and Idaho, which had rescinded its ratification — brought a lawsuit in the federal district court in Idaho seeking a declaration that Idaho’s rescission was valid and an injunction against the administrator of General Services from taking account of any ratification that occurred after the expiration of the original seven-year period. In 1981, in Idaho v. Freeman, the district court ruled in favor of the plaintiffs. The court held that states could validly rescind their ratifications and that Congress lacked the power to extend the ratification period for a proposed amendment once that period had been established. No state ratified the ERA after the original expiration date of March 1979, and Congress did not pass any additional extension. On June 30, 1982, the extended period for ratifying the ERA expired.
On Oct. 4, 1982, the Supreme Court, in National Organization for Women, Inc. v. Idaho, vacated the district court’s judgment and remanded the case to the district court with instructions to dismiss the complaint as moot. A complaint is moot if its resolution could not affect the rights of any of the parties to the case.
It is critical to understand that the Supreme Court could not have held that the challenge to the authority of Congress to extend the time period within which the ERA could be ratified (or the authority of states to rescind their ratifications) was moot unless it concluded that the ERA was no longer before the states. The extension, even if valid, had expired without 38 states having ratified the ERA. In other words, even if the extension was valid (an issue the Court did not need to resolve), the ERA still had to be ratified by the requisite number of states by June 30, 1982, which did not happen. The Court thus enforced the time deadlines adopted by Congress.
The argument that the ERA is still open for ratification is based upon the ratification of the 27th Amendment, which deals with congressional compensation. The 27th Amendment was proposed on Sept. 25, 1789, and ratified by the 38th state (Michigan) on May 7, 1982, more than 202 years later. Because the 27th Amendment was (presumably) validly ratified after more than two centuries, the ERA, so goes the argument, is still before the states. The fallacy of this argument is that, unlike the ERA, which had included a seven-year time period for its ratification, the 27th Amendment had no time limit. Whether the 27th Amendment was validly ratified has no bearing on the viability of the ERA, which died no later than June 30, 1982, the expiration of the extension passed by Congress in 1978.
That the ERA died is evidenced by the fact that there have been multiple efforts to resubmit the ERA to the states, as early as 1983, and as recently as Jan. 26, 2018 (H.J. Res. 35) and March 27, 2019 (S.J. Res. 15). In addition, legislation has been introduced in the House (H.J. Res. 6) and the Senate (S.J. Res. 38) to remove the time limits Congress had adopted for the ERA. If the ERA were still before the states, why would removing the time limits be necessary?
Whatever one’s position on the merits of the ERA, the amendment proposed in 1972 is dead. It’s past time to bury it. Those who desire to pass the amendment will need to go back to square one and try again.
Paul Benjamin Linton is the author of numerous legal publications, including Abortion Under State Constitutions: A State-by-State Analysis. Clarke D. Forsythe is senior counsel at Americans United for Life and author of Abuse of Discretion: The Inside Story of Roe v. Wade.