On Wednesday, the D.C. Circuit Court of Appeals heard oral arguments in the case of Illinois v. Ferriero—a lawsuit brought against the national archivist to compel her to publish the Equal Rights Amendment as the 28th Amendment to the U.S. Constitution. The lawsuit was brought by two of the three final states to ratify the ERA: Nevada and Illinois. (The lawsuit was originally joined by Virginia, but the state dropped out earlier this year after Republican Attorney General Jason Miyares was elected; Miyares is opposed to the ERA.)
Immediately following the oral arguments, ERA advocates held a press conference and a rally outside the court.
“We are hopeful that this will result in the certification of the ERA,” said Rep. Carolyn Maloney (D-N.Y.), co-sponsor of H.J. Res. 28, the Equal Rights Amendment. “It is alarming to me that our Constitution does not have a provision to protect gender equality when 85 percent of U.N. member states have gender provisions in their constitutions.”
“Fifty-two years ago, Shirley Chisholm stood on the House floor in support of the Equal Rights Amendment, and here we are today, still fighting for the same rights,” said Rep. Brenda L. Lawrence (D-Mich), co-chair of the Democratic Women’s Caucus. “Since our country’s founding, women have been intentionally left out of the Constitution. As a result, they were treated as second-class citizens and had to abide by laws for which they had no voice or representation. We need the ERA to ensure that the rights of women and girls will not be rolled back by any political trend, but instead, be preserved as basic rights guaranteed by the United States Constitution.”
“America—once a beacon of democracy and equality—has fallen behind the rest of the world when nearly all nations now recognize women’s equality with men in their constitutions and statutes,” said Christian F. Nunes, president of the National Organization for Women. “We must have a constitutional declaration of our equal status, and we need it now.”
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. And 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 archivist is now responsible for certifying and publishing the amendment,” said Maloney, “which is simply a ministerial duty, one with no room for the exercise of discretion.”
The House of Representatives has 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.
Zakiya Thomas, president and CEO of the ERA Coalition, said advocates are “pursuing all possible avenues to recognize and implement the ERA—including not only this lawsuit but also action by Congress. The House has twice passed a resolution making clear that the time limit does not stand in the ERA’s way.” Thomas urged the Senate to bring the ERA to a vote.
“The ERA would bolster our efforts to promote paycheck fairness and paid family leave, to end discrimination against pregnant workers, and to ensure comprehensive reproductive healthcare,” said Rep. Jan Schakowsky (D-Ill.).
The ERA takes on a new urgency in a post-Roe reality, as the amendment could provide a new basis for U.S. reproductive rights. 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, a Connecticut 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.
“With women’s rights under attack, it’s more important than ever that the U.S. Constitution specifically grants women equal protection under the law,” said Rep. Lois Frankel (D-Fla.).
“As we continue our fight to recognize the Equal Rights Amendment as the 28th Amendment to the Constitution amid a national assault on women’s rights, I am struck that Congress first considered an equal rights amendment nearly 100 years ago,” said Illinois Attorney General Kwame Raoul (D), one of the AGs leading the lawsuit. “One hundred years is far too long to wait for equality under the law. I have a daughter who intends to practice law, and the Constitution she will pledge to protect should fully protect her as well. Until the United States Constitution reflects our society’s commitment to not go backward, none of us should stop fighting for equality.”
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.
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 polling expert Celinda Lake of Lake Research Partners. But 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 must state once and for all women are equal and that equality of rights cannot be denied or abridged on account of sex,” said Ellie Smeal, president of the Feminist Majority, which publishes Ms. “We’ve done the work. The women of this country have waited 100 years for equality. The ERA is overwhelming popular and more needed than ever.”
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.