Removing the deadline for the ratification of the equal rights amendment - H.J.Res.79

The time limit for ratifying the Equal Rights Amendment to the U.S. Constitution would be removed by H. J. Res. 79.

“Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex” would be added to the Constitution by the proposed amendment, known as the ERA.

It was proposed to the states in 1972 through two-thirds votes in both chambers by H. J. Res. 208 in the 92nd Congress. The measure set a seven-year deadline for ratification by the required three-fourths of the states—or 38—following the amendment’s submission to the states. In 1978, Congress passed H. J. Res. 638 in the 95th Congress to extend the deadline by around three years, to June 30, 1982, according to the Congressional Research Service.

Ratification initially moved quickly, with 35 states approving the amendment by the fall of 1977. Momentum stalled, however, and five of those states enacted legislation to rescind their ratification by 1978. No federal appeals court, nor the Supreme Court, has ruled on the validity of a state’s rescinding ratification of a constitutional amendment.

Despite the deadline passing in 1982, Nevada ratified the amendment in 2017, and Illinois approved it in 2018, bringing the number of ratifying states to 37, without taking those that rescinded their approval into account.

Why Now?

On Jan. 27, Virginia became the 38th state to ratify the ERA after Democrats assumed the majority in both chambers of the state legislature.

“Virginia’s vote and the outpouring of support from Americans—men and women—across the country have shown that it is finally time to affirm women’s equality in our Constitution and that there is no timeline or expiration date when it comes to achieving it,” Rep. Jackie Speier (D-Calif.), who sponsored the resolution, said in a news release. “For survivors of sexual violence, pregnancy discrimination, unequal pay, and more, the fight for equal justice under the law can’t wait any longer.”

Opposition to the amendment in the 1970s was led by conservative activist Phyllis Schlafly, who said the ERA would abolish privileges women enjoy, such as exemption from the military draft and advantages in child-custody legal cases, according to her 2016 obituary from Bloomberg News.

David Scull/Bloomberg via Getty Images

Phyllis Schlafly testifies at a 2006 congressional hearing.

The current opposition to the ERA has centered on abortion and services for transgender persons, among other things.

“It’s well understood that the language used in the ERA would not protect women, but would prevent state voters from enacting any limits on abortion, up to the moment of birth,” Rep. Doug Collins (R-Ga.), the Judiciary panel’s ranking member, said in an opening statement at the committee’s Nov. 13 markup of the resolution.

Debate Over Deadline, Rescissions

Now that the ERA has been ratified by a 38th state, it’s already the subject of court challenges. The attorneys general of Nevada, Illinois, and Virginia—the three states to recently ratify the amendment—are suing the National Archives and Records Administration, which oversees constitutional amendments. They are asking a federal court to declare the congressional deadline itself unconstitutional and require the amendment’s addition to the Constitution.

If the deadline is upheld, opponents to the ERA could challenge Congress’ authority to alter it. Unlike other constitutional amendments with ratification deadlines, which stated the deadline in the text of the amendment, the ERA’s deadline was defined in the joint resolution preceding the proposed amendment text, leading to the 1978 extension and H. J. Res. 79.

Because the resolution proposing the ERA had to pass by a two-thirds majority under Article V of the U.S. Constitution, there is debate whether Congress can amend the deadline with simple majorities or whether two-thirds majorities of the House and Senate are required to extend it. The 1978 resolution providing more time for ratification was passed without reaching a two-thirds majority in either chamber: 233-189 in the House and 60-36 in the Senate.

The Justice Department’s Office of Legal Counsel concluded in a Jan. 6 opinion that Congress can impose ratification deadlines and cannot remove that deadline after it’s passed, meaning that the ERA cannot be “revived” in its current form.

“If you support the language of the 1972 ERA, you only have one constitutional option: to start the whole process over and make your case to current voters nationwide,” Collins said in his opening statement. “You must obtain the required two-thirds vote in each house of Congress, then win ratification individually from 38 states.”

The courts may also have to decide the effect of five states rescinding their ratification of the amendment. If their rescissions are determined to be valid, it would reduce the number of states that have ratified to less than the three-fourths threshold required to amend the Constitution.

Budget Effects

The resolution removing the deadline by itself wouldn’t affect the federal budget, the Congressional Budget Office wrote in a Dec. 19 cost estimate released before Virginia approved the amendment. CBO said that if states approve the amendment it could affect the budget, but those effects weren’t analyzed.

Group Positions

The ERA is SUPPORTED by several women’s groups, including the National Organization of Women, Women’s Bar Association, and National Council of Women’s Organizations, according to the Alice Paul Institute, which operates a website promoting the amendment.

“Legal sex discrimination is not yet a thing of the past, and the progress of the past 60 years is not irreversible,” the institute wrote on its site. “Remaining gender inequities result more from individual behavior and social practices than from legal discrimination, but all can be positively influenced by a strong message when the U.S. Constitution declares zero tolerance for any form of sex discrimination.”

Other SUPPORTERS include the National Education Association, NARAL Pro-Choice America and the ACLU.

Several groups that oppose legal abortion also OPPOSE the ERA.

“Laws protecting women’s interests will be undercut by the radical language of ERA that strips away from women their unique place in the law,” several groups wrote in a Jan. 7 open letter to the Virginia state legislature. “Not only will real protections be overwritten by this heavy-handed measure, the most profound change will be creating a constitutional foothold for abortion.”

Groups that signed the letter include Students for Life of America, March for Life, Concerned Women for America, and the Family Research Council.

Eagle Forum, the group founded by Phyllis Schlafly, also signed the letter. The organization also opposes the amendment’s potential expansion of transgender rights.

“The Equal Rights Amendment does not mention ‘women’ but ‘sex,’” Anne Schlafly Cori, Phyllis’ daughter and current chairman of Eagle Forum, said in an email. “Since ERA does not define what ‘sex’ means, ERA would grant new constitutional protections of ‘strict scrutiny’ to all sexual orientation and gender identity laws and cases.”