Is Amendment No. 28 on the Horizon?

By Allie Karpurk.

What is the Equal Rights Amendment?

On January 27, 2020, Virginia became the thirty-eighth state to ratify the Equal Rights Amendment (“ERA” or “Amendment”). The ERA was written by the National Women’s Party in 1923 following the Party’s successful fight for women’s right to vote, ratified in the Nineteenth Amendment. In 1972, Congress passed the ERA, which reads in its entirety:

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 legislation, the provisions of this article.

SECTION 3. This amendment shall take effect two years after the date of ratification.

For the ERA to become a part of the Constitution, it had to be ratified by three-fourths of state legislatures, or thirty-eight states. Congress initially imposed a seven-year ratification deadline in the clause proposing the Amendment.[i] However, in seven years, only thirty-five states ratified the ERA. As a result, Congress passed a bill to extend the deadline until 1982.

When the 1982 ratification deadline passed, no further states had ratified the ERA. Congress never extended the deadline. In the past five years, however, advocacy groups have attempted to revive the ERA, which resulted in three more states ratifying the Amendment: Nevada (2017), Illinois (2018), and Virginia (2020).

What is the Future of the ERA?

Now that thirty-eight[ii] states have ratified the ERA, it should officially become an amendment to the Constitution, right? Maybe. In a January 2020 memo, the Justice Department argued that the ERA cannot be ratified because five states rescinded their ratification, and the ratification deadline has long since passed. However, because the sole power for amending the Constitution resides with the legislative branch through Article V, this memo has no binding effect on whether Congress will accept the ERA as an amendment to the Constitution.

In addition, the rescission of ratification by five states (Nebraska, Tennessee, Idaho, Kentucky, and South Dakota) will likely will not affect the ratification of the Amendment. Article V of the Constitution does not acknowledge a state’s ability to rescind its ratification of an amendment or the effect such a rescission has on the ratification process. Notably, when the Fourteenth Amendment was ratified in 1868, the final count of states included New Jersey and Ohio, despite the fact that both states had rescinded their ratification of the amendment.[iii]

Further, although the long-passed ratification deadline could pose legal problems, it appears unlikely that this issue will be resolved in court. In Dillion v. Gloss (1921), the Supreme Court held that Congress may impose time limits for ratification of an amendment and that an amendment should be ratified in a “reasonable” amount of time after its proposal. In Coleman v. Miller (1939), the Supreme Court acknowledged that Congress, rather than the Court, was in the best position to assess the “political question” surrounding whether an amendment was adopted in a reasonable time frame. Congress deployed this reasonableness assessment in 1992, when the Twenty-seventh Amendment was officially ratified, despite being passed by Congress in 1789.[iv]

The ball is in Congress’ court now. Congress must assess the 1982 deadline and whether the Amendment was adopted in a reasonable amount of time. Although the ERA may face other challenges in Congress, it will likely withstand challenges based on the expired ratification deadline and the rescission of ratification by five states. But one thing remains certain: it has been a long time coming.

[i] The exclusion of a ratification deadline in the actual text of the ERA helps to ensure that (1) the ratification deadline can be extended, and (2) the ratification deadline does not result in the death of the Amendment.

[ii] A full list of the states that have ratified the ERA can be found here.

[iii] It is worth noting that the Fourteenth Amendment would have been adopted regardless because other states ratified the amendment but were not counted in the final ratification tally.

[iv] Here, there was no ratification deadline because Congress did not impose deadlines prior to the Eighteenth Amendment.