Women’s Equality Is *Still* Not Guaranteed in the U.S. Constitution

Ms.’s Winter 2020 cover.

Article V of the U.S. Constitution sets out two requirements for amendments: approval by two-thirds of both chambers of Congress, and ratification by three-fourths (38) of the states.

  • In 1971, the U.S. House of Representative approved the Equal Rights Amendment with a bipartisan vote of 354–24. The next year, the Senate approved the ERA by another bipartisan vote of 84-8.
  • In January of 2020, Virginia became the 38th state to ratify the ERA.

But despite finally achieving all of the requirements to become an amendment to the Constitution, recognition of the ERA was blocked by the Trump administration.

The final ministerial steps to make a constitutional amendment official is for the U.S. archivist to verify the ratifications, then draft a formal proclamation certifying that the amendment is valid and is part of the Constitution. This certification is then published in the Federal Register and the United States Statutes at Large and serves as official notice to Congress and the nation that the amendment process has been completed. But these final steps never happened.

Even before Virginia ratified the ERA, Donald Trump’s attorney general William Barr wrote a 38-page opinion arguing that three recent ratifications were invalid because they came too late. He also argued that Congress did not have the power to revive the ERA by extending a seven-year timeline for ratification in the preamble to the ERA passed by Congress in 1972.

Preeminent constitutional scholars affiliated with Columbia Law School’s ERA Project disagree, arguing that the Barr opinion should be rescinded because it was “lacking a thoroughly reasoned understanding of precedent and Congressional power under the Constitution.”

“States did not vote for the timeline—states voted for the text of the ERA. The timeline was in a preamble. The timeline is definitely not binding on Congress,” said Victoria Nourse, a professor at Georgetown Law.

Constitutional law scholars also believe that several states’ attempts to rescind their ratifications are not valid. “Article 5 speaks to ratification but not rescission,” said Kathleen Sullivan, former dean of Stanford Law School. “Article 5 describes a one-way ratchet. It does not provide for a two-way ratchet for going in and out of the process.”

According to Rep. Carolyn Maloney (D-N.Y.), Barr’s opinion “inserted the executive branch into a process the Constitution leaves to Congress and the states, and included a flawed legal analysis that misapplied precedent and wrongly concluded that the ERA had not met the requirements for certification and could not be revived.”

In January of this year, the Office of Legal Counsel issued a new opinion stating that Congress may take action regarding ratification of the ERA.

The House of Representatives has in fact twice passed a resolution lifting the timeline—in February of 2020 and March of 2021—but Republicans have used the filibuster to block the measure in the Senate. The only Republican senators who publicly support the ERA are Sens. Lisa Murkowski (R-Alaska) and Susan Collins (R-Maine). Not one male Republican senator has indicated support for the ERA.

“The ERA is not merely a symbol,” said Maloney. “It will make a real difference in the lives of women and people who face discrimination, sexual violence and unequal pay. The pay gap between men and women has persisted for decades with the average woman being paid 80 cents for every dollar paid to men. For women of color, the gap is even wider. That is shameful, and it shows that the current legal standards are not adequate.”

The ERA and Abortion

Section 2 of the ERA empowers Congress to pass laws to address the ongoing inequality experienced by women, including not only pay inequity but also violence against women and abortion barriers.

An ERA could provide a new basis for reproductive rights in the United States. In 1998, the New Mexico Supreme Court ruled that an abortion funding prohibition violated New Mexico’s Equal Rights Amendment. In a similar 1986 case, the Connecticut Supreme Court struck down a law that only allowed Medicaid funding for abortion when a pregnancy endangers a woman’s life. The Court ruled that choosing to fund all medically necessary procedures except for abortion is sex discrimination in violation of Connecticut’s Equal Rights Amendment. Abortion bans exacerbate sex inequalities in educational, economic and political life caused by childbearing and childrearing. 

“How many more decades must we wait for constitutional equality?” asked Eleanor Smeal, president of the Feminist Majority Foundation, on the U.S. House floor. “How many people must suffer? When a person is cheated out of decent wages because of sex discrimination, when sex-based violence is not adequately dealt with, when educational opportunities are denied because of sex discrimination, when essential workers, who are disproportionally women of color, are cheated out of wages commensurate with the task, we all lose.”

Women’s Rights Are Front and Center in Upcoming Elections

Polls show massive public support for the ERA. The vast majority of respondents—men and women; Republicans, Democrats and Independents—want the ERA, and most think the ERA is already a part of the Constitution. Nearly two-thirds believe that the ERA would have a positive impact for women.

“The ERA is very, very powerful—much more powerful than people understand in terms of motivating people to vote, and that’s going to be a very important factor in 2022 in particular,” said polling expert Celinda Lake of Lake Research Partners.

Support for the ERA, combined with a backlash against Republican-led abortion bans, could mobilize significant numbers of women voters to show up at the polls in November and vote against Republicans, said Lake.

To make the ERA a reality, Democrats need to keep the House and win 52 Senate seats in the fall elections so they can remove the filibuster and pass the ERA resolution.

“We have to lift our voices as women,” said Representative Brenda Lawrence (D-Mich.). “Vote … so that we can get in the Constitution.”

The State of State Equal Rights Amendments: A National Roundup

In its ruling in Dobbs v. Jackson, the Supreme Court gave state lawmakers power to legislate abortion. And next term, the Court agreed to hear a case (Moore v .Harper) that could grant state legislatures increased power in setting federal elections rules. It’s clear then that state courts and constitutions are becoming increasingly important. In the coming months and years, litigants may increasingly turn to state-level Equal Rights Amendments to secure civil rights, especially as they relate to gender.

Released ahead of Women’s Equality Day, Ms., the Brennan Center for Justice, and the ERA Project at Columbia Law School co-released “The State of State Equal Rights Amendments: A National Roundup,” a comprehensive summary of the gender-based protections afforded in the 50 states. The tracker groups states into three categories: states with ERAs, states with gender equality provisions, and states with no ERAs.

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U.S. democracy is at a dangerous inflection point—from the demise of abortion rights, to a lack of pay equity and parental leave, to skyrocketing maternal mortality, and attacks on trans health. Left unchecked, these crises will lead to wider gaps in political participation and representation. For 50 years, Ms. has been forging feminist journalism—reporting, rebelling and truth-telling from the front-lines, championing the Equal Rights Amendment, and centering the stories of those most impacted. With all that’s at stake for equality, we are redoubling our commitment for the next 50 years. In turn, we need your help, Support Ms. today with a donation—any amount that is meaningful to you. For as little as $5 each month, you’ll receive the print magazine along with our e-newsletters, action alerts, and invitations to Ms. Studios events and podcasts. We are grateful for your loyalty and ferocity.

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About

Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor in the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at [email protected] or follow her on Twitter @CarrieNBaker.