The Campaign for the Equal Rights Amendment Is Alive and Well

Constitutional equality is as important today as it ever was.

The Campaign for the Equal Rights Amendment Is Alive and Well
Ellie Smeal, third from the left, with campus activists at an ERA rally in 2019. (Feminist Majority Foundation)

On this International Women’s Day, we recognize the leadership of women across the world as we continue the fight for equality here at home.

One year ago, the House of Representatives passed a joint resolution to eliminate the time limit that Congress purported to impose on ratification of the Equal Rights Amendment.

Soon, the issue will come before the House once again, then before the Senate, which should now have the votes to pass it. The measure’s bipartisan sponsorship in the Senate gave it top priority it as Senate Joint Resolution 1. By removing the time limit, Congress can declare that equality still matters and recognize that the ERA became part of our Constitution on January 27, 2020, when Virginia became the 38th state to ratify it.  

Congress passed the ERA in 1972, with strong support from both sides of the aisle.

By the end of the 1970s, 35 states had ratified—three states short of the number required. In the hope of more ratifications, a simple majority in Congress extended the seven-year time limit to 1982.

But the next ratification did not come until 2017, when Nevada became the 36th state. With my home state of Illinois in 2018 and Virginia in 2020, the ERA has now met all the constitutional requirements to become our 28th Amendment. The seven-year time limit imposed by Congress in 1972 cannot change those requirements.

Friday Decision from Federal Judge Is Not the Last Word on the ERA Time Limit

Last Friday, a federal judge in Washington, D.C. held that because of the time limit, the ratifications by Nevada, Illinois and Virginia can be disregarded. He also held that the states lacked standing to press their arguments in court. This decision was a disappointing development. The attorneys general of the three states had argued that the time limit is ineffective as a matter of law. They presented strong legal arguments for their positions, supported by friend-of-the-court briefs by other states, nearly 100 businesses, and diverse voices from across the women’s movement.

This is by no means the last word on the time limit.

First, this is a single decision by a single district court judge. There will be other decisions by other courts—whether on appeal or in new cases that plaintiffs will bring in other courts to enforce their rights under the ERA. Those new lawsuits will begin in January 2022, on the two-year anniversary of Virginia’s ratification, when the ERA’s protections go into effect.


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As of today, neither the Supreme Court nor any court of appeals has ever held that a time limit like this one can stand in the way of an amendment. The process for amendment appears in the Constitution’s Article V, which does not contemplate time limits at all.

And the time limit for the ERA appears only in the joint resolution that introduced the amendment, not in the text of the amendment that the states would vote to ratify. That means that the time limit was solely a preference of Congress. Congress does not have the power on its own to change Article V, which says an amendment becomes “valid to all intents and purposes … when ratified by the legislatures of three fourths of the several states.” 

The Fight for the Equal Rights Amendment Is Alive and Well
Pro-ERA march at the 1980 Republican National Convention, the first presidential election year the party dropped its support for the ERA in four decades. (Patty Mooney / Flickr)

Second, this decision specifically leaves open the possibility of further action by Congress. The court explained that it was not deciding whether Congress could change the time limit now, because Congress has not done so yet.

Congress can and should remove the time limit now. The 1972 resolution did not say the ERA will expire in seven years; it said only that there would be a time limit for ratification. By placing that time limit only in the joint resolution, Congress retained the power to change it later. It has done so once, with a simple majority, and it can do so again. The Supreme Court has held that Congress has broad power over the amendment process—so broad, in fact, that if Congress votes to remove the time limit, the courts should not review that decision.

In short, there are still two paths forward—litigation and legislation—and there is no inconsistency between them. Some lawmakers may vote to remove the time limit because they believe Congress lacked the power to impose it in the first place. Others may simply recognize the undeniable truth—that constitutional equality is as important today as it ever was. Friday’s decision underscores the importance of prompt action by Congress to eliminate the time limit altogether.

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About

Linda Coberly is Chicago managing partner and chair of the appellate and critical motions practice of Winston & Strawn LLP. She serves as chair of the ERA Coalition's Legal Task Force.