Jan 27, 2022 - Politics & Policy

House Democrats introduce resolution to ratify ERA to U.S. Constitution

Picture of Rep. Carolyn Maloney

Rep. Carolyn Maloney (D-N.Y.). Photo: Tom Williams/CQ Roll Call

Reps. Carolyn Maloney (D-N.Y.) and Jackie Speier (D-Calif.) on Thursday introduced a resolution to recognize that the Equal Rights Amendment has met all legal requirements to be considered the 28th constitutional amendment.

The big picture: If added to the Constitution, the ERA would guarantee that constitutional rights may not be denied or abridged on account of sex.

  • Sex "would be considered a suspect classification, as race, religion, and national origin currently are."

How it works: A proposed amendment becomes part of the constitution after it is ratified by 38 states.

  • On Jan. 27, 2020, Virginia became the 38th state to ratify the ERA. The amendment states that it shall go into effect exactly two years after ratification, according to Maloney and Speier.

Yes, but: When Congress passed the amendment in 1972, it contained a 7-year ratification deadline in the preamble of the joint resolution. The deadline was then extended for 3 more years to 1982. By either deadline, the 38-state requirement had not been met.

  • By 1982, only 35 stated had ratified the ERA.
  • Virginia, Nevada and Illinois became the 36th, 37th and 38th states to ratify the ERA in 2020, 2017 and 2018, respectively.
  • Article V of the Constitution, which describes how the Constitution can be altered, does not require amendments to have deadlines.

Flashback: In January 2020, the Justice Department under the Trump administration issued a memo blocking the ERA from becoming law.

  • It argued at the time that the latest states to ratify the ERA cannot actually do so because the deadline to ratify the ERA expired. Therefore, the National Archives would not be able to certify the amendment.
  • The DOJ's memo also suggested that the only way that the ERA could be ratified was if it was reintroduced to restart the ratification process. However, Speier, Maloney and other lawmakers have refused to do so.

Virginia, Nevada and Illinois then sued the U.S. Archivist, David Ferriero, arguing that the deadline was non-binding because it was included in Congress' joint resolution, but not in the amendment itself.

  • Last year, D.C. District Court Judge Rudolf Contreras ruled that the ratification period for the ERA had expired and that Virginia, Nevada and Illinois were too late, per AP.
  • The three states have appealed the decision.

Driving the news: The DOJ on Wednesday issued an opinion calling into question its 2020 memo, but did not rescind it. However, it stated that ERA's inclusion into the constitution will not be determined by the DOJ, but "by the courts and Congress."

  • The 2020 memo "is not an obstacle either to Congress’s ability to act with respect to ratification of the ERA or to judicial consideration of the pertinent questions."

Between the lines: Several states have rescinded their ratifications, which puts into question whether the ERA has even met the 38-state requirement, even after the deadlines.

  • Article V does not have any language on whether states can "deratify." Ultimately, it is up to the courts to decide whether that is legally viable.

President Biden on Thursday expressed his support for the ERA resolution, calling on Congress "to act immediately to pass a resolution recognizing ratification of the ERA."

  • "We must recognize the clear will of the American people and definitively enshrine the principle of gender equality in the Constitution. It is long past time that we put all doubt to rest," Biden said.
  • "No one should be discriminated against based on their sex — and we, as a nation, must stand up for full women’s equality."

What they're saying: "We’ve ratified the ERA; now it’s time to enshrine it in our Constitution. Women in America have continued to be victims of insidious discrimination and the Constitution has been an apologist for the bad behavior," Speier said in a statement.

  • The ERA "would ensure that all people who face discrimination on the basis of sex, sexual violence, workplace harassment, pregnancy discrimination, and unequal pay are finally given full and equal standing under the law," said Maloney.

Editor's note: This story has been corrected to show the ERA would guarantee legal gender equality if added to the Constitution, not that it would automatically become part of the Constitution if passed by both chambers of Congress. Information about a judge's ruling last year that the ratification period for the ERA had expired was also added to the story.

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