This year marks the 100-year anniversary of the amendment that never was: the Equal Rights Amendment
First introduced to Congress in 1923 on the heels of the 19th Amendment granting women the right to vote, the ERA simply states that a person’s rights cannot be ignored or limited because of their sex. However, the amendment didn’t get the two-thirds majority support it needed to pass Congress until 1972. From there, it was presented to the states for ratification.
For an amendment to become part of the Constitution, it must be ratified (approved by a state’s legislature through a resolution) by three-quarters of states; in this case, 38 states total. By the end of 1973, 30 states had ratified the ERA. Then the conservative political movement joined with the conservative religious movement to drastically slow acceptance. When the 1982 deadline for ratification had come and gone, only 35 states had approved the amendment.
Then things got complicated. In 2017, Nevada ratified the ERA, making it state No. 36. Illinois followed suit in 2018, becoming state No. 37. In 2020, Virginia became the 38th state — and the last one needed — to ratify the Equal Rights Amendment, almost 40 years after the deadline. To make it even more complicated, between 1973 and 1979, five states voted to rescind their ratifications.
So … now what?
That seems to be the question no one is sure how to answer.
Some of the underlying questions have answers set in historical precedent. For example, when it came time to add the 14th Amendment to the Constitution — which granted citizenship to former enslaved people and granted “equal protection” under law — Congress included two states in the ratification count that had later passed resolutions to rescind their approval. This implies that once a state has ratified an amendment, there are no take-backs.
Then there’s the question of the deadline. Congress has, in the past, declared amendments officially ratified long after the initial deadline. Such as the case when the 27th Amendment received its three-fourths ratification in 1992 — 203 years after Congress first passed it. You may remember that, earlier this year, Sen. Joe Manchin was a co-sponsor on Senate Joint Resolution 4, which would acknowledge the ERA’s ratification regardless of deadline. Unfortunately, SJR 4 was defeated by a Republican filibuster in April.
But that doesn’t mean it’s too late. SJR 6 could be brought up again. Manchin, of course, voted to proceed the first time, but Sen. Shelley Moore Capito voted no. Considering Capito has repeatedly proclaimed her support for women’s equality and women’s rights, she should be an adamant proponent of the ERA, and we hope she will change her “nay” to “yea” on future votes.
A very similar resolution (HJR 25) was introduced in the House of Representatives this year. Last month, Rep. Ayanna Pressley (D-Mass.) moved to have it discharged from committee. We would hope that Reps. Alex Mooney and Carol Miller would encourage their fellow Republicans on the committee to allow HJR 25 to at least come to the House floor for a vote.
Some have tried to argue that there is no need for the Equal Rights Amendment, considering the hard-fought advancements that have been won for women under the auspices of the 14th Amendment. But, though it has often been read that way, the 14th Amendment does not single out discrimination on the basis of sex. And without specific language protecting against sex and gender discrimination, courts are unable to slow or stop the current onslaught against LGBTQ+ people and women’s rights and autonomy.
The ERA was introduced 100 years ago — and it is long past time to enshrine equal rights in our Constitution.
