The Resurrection of the Equal Rights Amendment: How the ERA came back and what comes next
A special report by Kaitlyn Budion
When Lisa Sales flew to Los Angeles from her home in Virginia, she didn’t know anything about the Equal Rights Amendment, and certainly wasn’t thinking of how to get it into the Constitution. In fact, she thought — incorrectly — that it had already passed. It was 2018, and she was attending the National Association of Commissions for Women conference. Her thoughts were on meeting up with old friends and catching a Dodgers game.
But on the first night of the convention, her world shifted. A woman in a bright red dress came on stage to speak about the 13 states that had yet to ratify the hallmark legislation of the feminist movement — the protection that promises equal treatment of any American, regardless of sex. She was shocked to learn one of those was Virginia.
Lisa Sales with Nancy Pelosi, speaker of the United States House of Representatives. Photo courtesy of Lisa Sales.
“I had a lightbulb moment, I was just like, wait, wait a minute — the ERA isn't ratified?” Sales said. “I'm from a state, [California,] that ratified when I was a baby — living in a state, Virginia, that wouldn't even consider it.”
Sales, who believes there is a connection between violence against women and the lack of gender equality, knew immediately she had to work to do. That night, she was sitting at a table with delegations from two states that had recently ratified — Nevada and Illinois — and she decided right then Virginia would be next.
The ERA is a complicated piece of legislation — it was passed in Congress in 1972 and sent to the states for ratification, but the language of the introduction included a deadline for 1979. The process requires three-fourths of states to ratify — 38 of 50 — but only 35 states ratified the ERA in time, and so most of the country assumed it was dead. But when Nevada ratified it in 2017, and Illinois in the next year, it resurrected the issue, and quickly inspired the same ferocious debate it had in the 1970s. But with a long and complex history, the ERA is still prompting many people to ask: Where did this amendment come from and what would it do?
For such a hotly debated topic, the actual text of the ERA is short and to the point. It states:
Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3: This amendment shall take effect two years after the date of ratification.
As of December, 38 states have ratified the ERA, but there are still many battles ahead before it will be added to the Constitution. On the local level, there are organized efforts in nearly all the states that haven’t ratified to get their legislatures to pass it. On the national level, both sides are gearing up for a legal fight after nearly 50 years of locking horns. The battle is far from over, but so far the reignition of the pro-ERA effort has shown promise.
For Carol Jenkins, these days the ERA is a family affair. Her grandchildren have come to Congress with her to attend hearings and have even helped with phone calls to get out the vote.
Jenkins worked as a reporter and anchor for many years before retiring — but it didn’t really stick. She went to work at the Women’s Media Center, and then joined the board of the ERA Coalition, a group made up of organizations around the country working toward universal passage.
Jenkins is now the president and CEO of the ERA Coalition, and she said the amendment is just as important now as it was in the ‘70s. She pointed out that while there has been progress in the courts to eliminate sex discrimination, that will never hold the same weight as a constitutional amendment.
Precedents in the court system, or past court decisions that guide judges in current legal cases, can still be overturned in a way that a constitutional amendment cannot.
“The rules of play of our country do not provide protections and equality for women and so many others — and so until we fix it, we will be running around in circles,” Jenkins said.
The ERA would also change the way judges look at cases that have to do with sex discrimination. Right now, the laws being challenged are subject to “intermediate scrutiny” and to pass this legal bar, the law has to further a governmental interest and do so by means substantially related to that
Carol Jenkins, president of the ERA Coalition. Photo courtesy of ERA Coalition.
interest. Under the ERA, those cases would instead be subject to “strict scrutiny,” the highest standard of review. To pass strict scrutiny a law must still further a governmental interest, but it must be narrowly tailored. To be subject to strict scrutiny, a case has to do with a fundamental right or a “suspect classification,” such as race and religion.
By adding the ERA to the Constitution, sex becomes a suspect classification, raising the bar a law has to pass in court.
And the ERA does more than just give protection in the courts, Jenkins said. It also gives Congress broader powers to pass laws relating to sex discrimination. In the past there have been times when the courts have struck down laws and said that Congress did not have the power to enact them.
So if Congress explicitly has the power to enforce the ERA, it could pass more effective laws supporting gender equality, said Julie C. Suk, a Florence Rogatz visiting professor of law at Yale Law School and professor of sociology and political science at The Graduate Center of City University of New York.
Julie Suk, a Florence Rogatz visiting professor of law at Yale Law School. Photo courtesy of Julie Suk.
Suk first became interested in the ERA when she was in law school in the early 2000s. Back then it seemed like a purely academic project. She studied similar equal rights provisions in France and Germany and came back to the strange case of the United States. She ended up writing a book about the issue, “We the Women: The Unstoppable Mothers of the Equal Rights Amendment,” published this year.
“Courts can strike things down, but they don't write policy,” Suk said. “If you think about it, you get rid of discrimination, that doesn't make women equal — you need to have infrastructure to actually support women's equal opportunities. Things like paid parental leave or childcare policy or even reproductive justice, you need things on the ground that are going to make it possible for women to take advantage of the new opportunities that the law opens up to them.”
Standing on the opposing side of Jenkins and her coalition is Elise Bouc, the ERA chairman for the Eagle Forum, a conservative political group that was founded in 1975 by Phyllis Schlafly — the famed forewoman of the anti-ERA movement in the 1970s, eternalized by her scathing diatribes against working women and their insistence, she alleged, of demeaning motherhood and referring to the home as a prison.
Bouc got involved with the ERA when she was a teenager in the ‘70s. She went to a debate on the issue and was impressed by the anti-ERA argument.
Bouc’s position: The ERA is too broad and could have negative effects on women, namely, it will not allow for distinctions in the law based on sex, preventing legal protections that exist only for women — such as exemption from a draft.
“Part of what we do with laws is we look at where different people's rights collide, and we try to arbitrate — how do we resolve these issues in a fair way, for both sides,” Bouc said. “But the ERA with its broad, vague language will not allow us to do that — it will mandate that you could never ever make a distinction based on sex.”
Many groups that oppose the ERA also argue that the legislation is only pushed to defend abortion access. Bouc argued that under the ERA, if government funds can be used for sex-specific operations like vasectomies or prostate exams, they will also be used for sex-specific operations like abortions.
In that case, the debate is even trickier, because the right to an abortion is currently protected under Roe v. Wade, so that case would first have to be overturned for the ERA to have an impact on abortion access.
But these sorts of arguments might be a subterfuge – fearmongering to push people into joining the anti-ERA movement and scaring legislators into not taking up the issue in the first place.
For women to be subject to the draft, for example, a long set of legal challenges would need to take place including, mostly likely, a stop at the Supreme Court. The same is true for abortion rights, currently protected under the Constitution’s Fourteenth Amendment by the Supreme Court’s 1973 decision on Roe v. Wade.
Similar caveats apply to the proponents as well. The ERA wouldn’t create immediate changes that benefit women overnight, and the proponents overstate the potential benefits, as those are subject to the same uncertainty of how the courts would react to the new amendment.
“What kind of policy things the ERA might do we'll always debate about,” Suk said. “Some conservatives do support it and some conservatives don't. But one of the big arguments is, ‘Oh, is it going to guarantee a right to abortion or not?’ It could — you can make an argument that the ERA requires some degree of reproductive freedom, but you can also make an argument that the ERA is really about equal rights and not about abortion.”
Suk emphasized the importance of advocates stating the intentions and goals of the ERA, so that when judges go to interpret the ERA they can look to the legislative history to understand what the ERA is supposed to do.
“I think it is important to note that what the ERA can do is not guaranteed. It will depend on how the Supreme Court interprets it and it will depend on how effectively lawmakers, and activists working with lawmakers, make a clear record about how they want judges to interpret it,” Suk said.
For Sales, back in 2018, realizing that Virginia had never ratified the ERA lit a fire in her heart. She returned home and dove into the issue and joined VA Ratify ERA, the organization that advocated for the state to ratify, eventually becoming a part of the organization's leadership team.
The same night she returned from California, she went to a strategy meeting for the upcoming legislative session, figuring out how to spread the word among legislators, on social media and beyond.
“I don't even think any of us believed we could do it at that moment,” Sales said. “But we were sure as hell gonna fight like mad.”
Not surprisingly, they ran into roadblocks with conservative leadership. The House of Delegates had a majority of Republicans, and the speaker, Kirk Cox, held up the ERA in committee. Facing a dead end, the group decided to try a new strategy.
Activists labored for years to bring Virigina into the "ratified" column for the ERA. Finally, in 2020, they succeeded. These photos show some of their gatherings along the way - and their celebrations at the end. Photos courtesy Lisa Sales.
“We said, ‘OK, if you're not going to listen to us, if you're not going to give women equal rights and you're not going to pass a resolution, fine. Then we're going to take your seats — we're going to flip your seats,’” Sales said.
And they pivoted, focusing instead on the 2019 elections and turning the legislature in Virginia blue. The ERA became an issue that candidates campaigned on. Organizers from VA Ratify ERA drove around the state in a bus that was covered in information about the ERA, educating people on the issue.
It worked. With a Democratic majority in both legislatures, one week into the legislative session, Virginia became the 38th state to ratify the Equal Rights Amendment, almost 48 years after it passed in Congress.
Women around the country watched it live online, on their computers, on their phones, at home and at work. And while Sales said she was euphoric, even then she knew that the work was far from over.
Back to the beginning
To understand how the Equal Rights Amendment got here, you have to go back almost 100 years.
After the passage of the 19th Amendment, which gave women the right to vote, many in the women’s rights movement felt they needed to go further, and get a constitutional amendment banning all discrimination based on sex.
Alice Paul was a prominent figure who pushed for the ERA. "Alice Paul" by Cat Sidh is licensed under CC BY-NC-SA 2.0
Alice Paul was one of the most prominent figures who believed in the need for an ERA. She first presented the actual language of the amendment in 1923 at the 75th anniversary of the 1848 Women’s Rights Convention, but it didn’t get a lot of traction. Many women didn’t support it because they were concerned it would mean losing any legal benefits women had at the time.
Nonetheless, the amendment was proposed in Congress in 1923 and every year after.
The amendment gained support as time went on, but it didn't pass Congress until 1972 and was sent to the states for ratification. The process for adding an amendment to the U.S. Constitution is far from easy. An amendment must first pass Congress with a two-thirds majority and then must be ratified by three-fourths of state legislatures — that’s 38 states out of 50.
But there was a routine legislative procedure that would later become one of the most debated parts of the ERA — a deadline. Starting with the 18th Amendment prohibiting alcohol, it became common practice to institute a deadline for amendment ratification. So in the introductory text of the ERA, Congress set a deadline of seven years. It would have to be ratified by 1979.
At first it seemed like the ERA was on an easy path to victory. Hawaii ratified it on the same day it was passed by Congress, and 21 other states followed suit in 1972. But at the time no one predicted the scale of opposition the ERA would face.
Phyllis Schlafly led the movement against the ERA. She founded STOP ERA (Stop Taking Our Privileges) and the organization quickly gained momentum. Schlafly and others contended that the ERA would take away legal privileges women had at the time. There were also arguments that it would punish women who wanted to stay home and not work.
Anne Schlafly Cori is Phyllis Schlafly’s youngest child, and has been involved in the ERA fight as long as she can remember. She was still at home in the ‘70s, and would often make the trip to Springfield, Illinois, when her mother went to lobbying events. After years away from politics, she got involved in the 2000s at her mother’s request. Now she is chair for the Eagle Forum.
Cori recalled the flurry of activity out of her house in the prime of the ERA debate. Phyllis worked out of their home so there were often calls for interviews and it wasn’t uncommon to turn on the TV and her mother.
Much like today, Cori said a major debate around the ERA in the 1970s was abortion. But the biggest issue was the military draft, and concerns that the ERA would require women to be included as well. There is no doubt, Cori said, that the ERA would require women in the draft.
Phyllis Schlafly founded the organization STOP ERA and led the movement against the ERA. "Activist Phyllis Schafly wearing a 'Stop ERA' badge, demonstrating with other women against the Equal Rights Amendment in front of the White House, Washington, D.C." by citationneeded is marked with CC0 1.0
“I'm sure there were many arguments, but I think the draft was the one that killed the ratification efforts of the amendment because it was so clear cut and pronounced and indisputable,” Cori said.
The objections stuck. Ratification slowed: only eight states ratified in 1973, three in 1974, one in 1975 and one in 1977, bringing the total to 35, three short of the required 38.
According to Jane Mansbridge, author of the 1986 book “Why We Lost the ERA,” part of the problem was the way proponents failed to listen to the arguments made by opponents and adjust their approach. In a massive miscalculation, they failed to understand where the other side was coming from.
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Jane Mansbridge is the author of "Why We Lost the ERA." Photo courtesy of Jane Mansbridge.
“The big example is espousing women being drafted on the same basis as men, when at the time only 22 percent of the public favored that policy,” Mansbridge said in an interview. “Since we were trying to get something that needed a supermajority, saying it would bring a policy that a majority did not favor was not a good idea.”
And because it was unclear what tangible benefits the ERA would actually accomplish, both sides went to extremes about what the ERA would do. Worse, the opposing sides were unwilling to compromise their principles to refute the arguments.
“This institutionalized deafness meant that neither the activists nor the general public could make even an informed guess about what passage of the ERA would accomplish,” Mansbridge wrote in her book. “As a result, there was no serious national debate about whether the Amendment was the best way of accomplishing what the opponents sought or whether it really threatened the values that opponents sought to defend.”
As the 1979 deadline approached, pro-ERA groups lobbied Congress to extend the deadline, and in 1978, they succeeded. Congress gave the ERA three more years, until June 30, 1982.
But the extension would be in vain, as no other states moved forward before the deadline. And in a tremendous setback, five states passed motions to rescind their ratification: Nebraska in 1973, Tennessee in 1974, Idaho in 1977, Kentucky in 1978 and South Dakota in 1979, although the legality of the move is debated.
With the deadline passed and no ratification success, Schlafly held an elaborate gala for the anti-delegation celebrating the loss, while advocates mustered to battle again and reintroduce the amendment to Congress.
Something else was becoming clear, as well, said Suk: The debate around the ERA showed that public opinion around discrimination based on sex was changing — a shift that reached up to the highest court. In 1971, in the case Reed v. Reed, the Supreme Court said that the Equal Protection clause in the 14th Amendment banned discrimination based on sex.
“For about a century, the 14th Amendment was never applied to include the equal rights of women,” Suk said. “But in 1971, the Supreme Court changed what it was doing, and said discrimination on the basis of sex is a problem under the 14th amendment. And then the Supreme Court really strengthened that throughout the 1970s.”
Suk also said that women have always had an impact on the Constitution, but they don’t get the same credit as men, and that alone is a reason to fight for the ERA.
“Women have amended the Constitution without formally amending the Constitution,” Suk said. “And I think that we're in an awkward spot now, where if we don't finish the job of adding the ERA to the Constitution, we're basically not giving women credit for all the changes that they made.”
Then in 1992, something strange happened. The 27th amendment, commonly called the Madison Amendment, was ratified and added to the Constitution. The amendment itself wasn’t anything groundbreaking — it said if Congress passed a raise for legislators’ salaries it could not go into effect until after the next election. What was shocking was the timeline.
The Madison Amendment was passed by Congress in 1789, but wasn’t ratified until 1992, 202 years after it had been proposed. And ERA advocates took notice.
Suddenly, it seemed like maybe they didn’t have to start back at square one. Instead, if they could get three more states to ratify, then they just had to get Congress to remove the deadline and the ERA would be the law of the land.
Still, it was a stretch and the efforts for ratification had already failed in the ‘70s and early ‘80s. As a result, advocates took up two strategies. The first was to start over. The second, called the three-state strategy, was to get three more states to ratify the older version of the ERA and then have Congress remove the deadline.
The three-state strategy was feasible, but still seemed a long shot. These states hadn’t been persuaded to ratify it before, why would they do it now?
Then in 2017 Nevada ratified the ERA. And in 2018 Illinois did. And finally, 48 years after the ERA passed Congress, Virginia became the 38th state to ratify in January 2020.
Suddenly the three-state strategy didn’t seem impossible.
In January, the U.S. House of Representatives passed a bill that would remove the deadline from the ERA, but the Senate has yet to take it up. While the issue has become more of a Democratic campaign, it does have bipartisan support, including Republican Sen. Lisa Murkowski of Alaska.
President-elect Joe Biden also stated his support for the ERA as part of his agenda on women’s issues, writing “Biden will proudly advocate for Congress to recognize that 3/4th of states have ratified the amendment and take action so our Constitution makes clear that any government-related discrimination against women is unconstitutional.”
It’s very unlikely that the Senate will take it up this session, as Senate Majority Leader Mitch McConnell of Kentucky has said that he is “personally not a supporter” of the ERA.
So for now it seems the best chance of removing the deadline would require the Democrats to flip the Senate in January, creating a dead heat among Republicans and Democrats with Vice President-elect Kamala Harris to break any ties. The majority party of the Senate has come down to two races in Georgia, both of which will go to runoff elections in January.
To Mansbridge, part of the importance of the ERA is not any specific laws it would strike down, but to get the principle of gender equality into the Constitution.
“I think it's a matter of the principle — the Framers, who put in the Bill of Rights, didn't put in the free speech clause because they wanted to change the immediate laws or particular laws that were their targets. They thought it was important to have a principle in the Constitution,” Mansbridge said. “Similarly, I don't think we should aim at specific laws but if you have the ERA in there, like having the free speech clause, then things you might not want to happen are less likely to happen, because the Supreme Court will have specific wording that the people have passed.”
Moving forward
Ultimately, the future of the ERA will come down to two debates: the deadline and the rescinded states. And it’s hard to predict what will happen in either instance.
The two issues will go to the courts to decide, as multiple lawsuits have already been filed. With both sides having already invested so much in the battle, they will almost certainly take it to the Supreme Court. It's hard to say what will happen there, because there isn’t any direct precedent for these issues, and there’s not a lot of similar cases to use as analogs.
For the deadline, anti-ERA groups argue that Congress didn’t have the power to extend the deadline to 1982, let alone have the power now to remove it. But the legality of the deadline at all is debated, said Danaya Wright, Clarence J. Teselle endowed professor of law at the University of Florida. Wright has also researched the legal issues and provided research memoranda for amicus briefs for lawsuits on the issue.
Wright said that the first time a deadline for ratification was attached to a constitutional amendment was with the 18th Amendment — prohibition. And it was actually included as an attempt to prevent it from being ratified, because many members of Congress thought that this was a way to kill it.
It didn’t end up mattering with the 18th Amendment, because it was ratified before the deadline, and when the amendment was challenged in court, Wright said, the court said it wasn’t going to void a ratified amendment just because of the existence of the deadline that maybe wasn’t supposed to be there.
“And [a deadline is] a really dramatic restraint on the ratification function, but it's never mattered,” Wright said. “It's never been an issue until the ERA.”
The Constitution doesn’t say anything about whether Congress can or cannot set a deadline on an amendment, and if the Madison Amendment can be ratified more than 200 years later, the argument goes that the ERA can be ratified now.
Danaya Wright is a Clarence J. Teselle endowed professor of law at the University of Florida. Photo courtesy of Danaya Wright.
Then, the debate becomes if Congress can pass a deadline to restrict states’ rights to ratify an amendment, which can create a conundrum for conservative justices on the Supreme Court who have typically supported arguments for states’ rights, Wright said.
Similarly, some of the justices consider themselves textualists, which means they only consider the Constitution and the law exactly as written. They don’t interpret it or take intention into account. The Constitution doesn’t say anything about the ability to create a deadline or restrict ratification, meaning a textualist interpretation would probably be that the ERA is valid.
“This is the kind of case that tests the justices’ legal philosophy, because some of them, I'm sure, will say we don't like equal rights for women and so we're going to vote against it, regardless of the legal arguments,” Wright said. “And some of them might say we like equal rights and will vote for it regardless. But this is a case where the conservatives have to really decide: Do they really believe in this principle they've been talking about for the last 40 years about states’ rights and federalism?”
Suk differs when it comes to Congress’s ability to set things like deadlines. Her view: the Constitution gives Congress broad powers to propose amendments, and those broad powers include things like setting deadlines.
“If Congress has the power to propose amendments, I think Congress also can make reasonable procedural rules about the amendment process,” Suk said. “That means it's up to Congress to decide whether to have deadlines or to remove deadlines.”
When it comes to the five states that rescinded ratification, it's a similar story. The opponents of the ERA have said that rescinding is valid and those five states don’t count toward the 38. Proponents disagree.
There is some precedent for this, as states have attempted to rescind ratification for other amendments in the past, but they were never given any weight or attention.
“One historical but not necessarily judicial precedent that we have is with the 14th Amendment, because there were states that rescinded the 14th Amendment, but the recissions were not recognized,” Suk said. “Congress just proclaimed that the 14th Amendment was validly ratified, without recognizing the validity of recissions, and I think Congress can do that again here.”
Both Wright and Suk pointed out that there is an argument against the validity of the recessions because of how uncertain it then makes the ratification process.
“I think there is a fair argument that recissions should not be allowed because they really create a lot of instability and confusion about expectations,” Suk said.
Suk said that for both the deadline and the ratification, it is also entirely possible that the justices will say this is outside their power and send it back to Congress, something they have done in the past.
“Courts often say this is super interesting, but it's really not for us to decide — this is really a question for Congress, this is really a question for elected representatives, this is really a question for the political branches,” Suk said.
ERA advocates celebrating the ratification of the ERA in Virginia. Photo courtesy of Lisa Sales.
If it goes back to Congress, it’s possible that there will then be political compromises made, Suk said, like getting rid of the deadline but allowing the five states to rescind their ratification.
As the debates rage on, advocates on both sides of the issue continue to prepare for the legal battle to determine the fate of the ERA.
Back in Virginia, Sales always knew that ratifying in the state wouldn’t be the end of the fight. She knew about the deadline and the rescinding and that the long history that was far from over. She’s now an advisor for the ERA Coalition and is working with them to get the ERA finalized and added to the Constitution — as the 28th Amendment.
But the ongoing work didn’t take away from the importance of that night in January. It was poetic, Sales said, for Virginia to be the 38th state, when it had so often been on the wrong side of history.
“We are just over the moon and hoping that this is a catalyst for change,” she said.