“Just make us equal under the law.”
— Representative Jackie Speier, Democrat of California
The House on Wednesday passed a bill that could clear the way for the nearly-century-old Equal Rights Amendment to be added to the Constitution, providing equal protection under the law regardless of sex.
The bill, which passed 222 to 204, almost entirely along party lines, is largely procedural — it removes a deadline for ratification that expired in the early 1980s. At the time, the amendment was not ratified by the constitutionally required 38 states, and it was left to linger for decades. But last year, on the heels of Nevada and Illinois, Virginia became the crucial 38th state to ratify it, reviving hopes among E.R.A. supporters that it could finally become part of the Constitution.
“It is time for us to stop with the excuses, it is time to do what’s right and make sure that women are in the Constitution,” Representative Jackie Speier, Democrat of California and the bill’s sponsor, said in a news conference after it passed in the House on Wednesday. She was flanked by other female House Democrats, all dressed in white — the color of the suffragists.
“Just make us equal under the law,” she added.
But the measure faces an uphill battle in the Senate, with backing from just a handful of Republicans. “I wish that I could tell you that we had more Republican support,” said Senator Lisa Murkowski, Republican of Alaska, who is working to rally senators from her party around the measure.
“Hopefully we’ll be able to get some traction over here,” she added.
The country has been here before. Last year, the House extended the deadline, but the bill failed to move in the Senate, and today America remains one of the few countries in the world without any explicit guarantee of gender equality in its constitution. And several legal wrinkles — most importantly whether Congress even has the power to remove the ratification deadline — still make the amendment’s adoption far from guaranteed.
But what is different this time is a renewed appreciation of the amendment’s importance — and, of course, a Democratic controlled Senate may help. Advocates say the pandemic, the economic crisis and a right-leaning Supreme Court that may be a blocker for women’s rights have highlighted just how vulnerable American women are.
A whole generation of women thought they were protected and already equal, said Kate Kelly, a human rights lawyer and host of the podcast “Ordinary Equality.” But “Covid made visible inequities that to many were invisible before,” she added.
“Now that inequality is laid bare, they can see the desperate need for a fundamental, permanent solution.”
The text of the E.R.A., or what would be the 28th Amendment, is succinct: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
If implemented, activists and legal scholars expect that its effects could be sweeping, clearing the way for Congress to guarantee equal pay, for example, or bolster measures to counter domestic violence and sexual harassment.
‘On Account of Sex’
The amendment was first introduced in Congress in 1923, just a few years after women secured the right to vote. Nearly 50 years later, in 1972, Congress passed a version of the measure, with broad bipartisan support.
At that point, Congress set a deadline in the amendment’s preamble, or introduction, for states to ratify it — originally 1979, which was later extended to 1982. Many states were quick to jump onboard — Hawaii was the first, just 30 minutes after the Senate passed the amendment. And by the end of 1972, 21 other states had followed suit.
But the initial momentum tapered out, in large part because of the self-proclaimed anti-feminist Phyllis Schlafly, who mounted a powerful opposition campaign that turned the bipartisan issue into a cultural lightning rod.
She argued that the E.R.A. would ruin traditional family structures, diminishing women’s roles as homemakers and child rearers, and strip women of privileges like sex-segregated bathrooms.
Later on, opponents also argued that the E.R.A. could invalidate state-level abortion restrictions.
By the 1982 deadline, 35 states had ratified the measure, leaving it three short of success.
To bridge the gap, a crop of pioneering lawyers — most prominent among them, the eventual Justice Ruth Bader Ginsburg — persuaded the Supreme Court, through a bevy of cases, to expand the 14th Amendment to cover sex discrimination, achieving in many ways what the E.R.A. would have done.
But that approach of tackling discriminatory laws one by one could go only so far. “The reason proponents wanted the E.R.A. was not only to get judges to strike down bad laws but also to empower Congress to write new laws that would address the inequalities that women face in society because of their sex,” said Julie Suk, author of “We the Women: The Unstoppable Mothers of the Equal Rights Amendment.”
An Unusual Step
In 1992, the 27th Amendment, an amendment pertaining to congressional pay was added to the Constitution — 200 years after it was first introduced in Congress.
For E.R.A. supporters, it served as a eureka moment, planting a seed for the idea of simply removing the ratification deadline from the 28th Amendment. “There was a growing appreciation about, you know, what’s the deadline all about anyway? Why do we have to live by the deadline?” Ms. Speier said. “If Congress made the deadline, Congress can change the deadline.”
Several legal scholars agree. Since the deadline is in the preamble, it may not even be legally binding, said Katherine Franke, a law professor at Columbia and faculty director of its E.R.A. Project research initiative. She also noted that, in the past, the Supreme Court has ruled that Congress has full control over the process of finalizing a constitutional amendment, which is how Congress already extended the E.R.A. deadline once.
After years of campaigning and a reignited interest in the wake of President Donald J. Trump’s election and the #MeToo movement, Nevada ratified the amendment in 2017, then Illinois followed in 2018 and Virginia joined in 2020.
Republicans who oppose the measure argue that there is no precedent for retroactively changing a deadline — as the House bill does — and that doing so could be unconstitutional. The Justice Department also issued a memo last year echoing that line of reasoning.
Democrats are “trying to turn back the clock,” Representative Tom Cole, Republican of Oklahoma, said on Tuesday of the bill. “This is a highly unusual step.”
Another potential twist is that, since 1982, five states have rescinded their ratification. The question of whether that is allowed is still unanswered, though there is some precedent. Three states rescinded their ratification of the 14th Amendment but were still counted in the yes column when the amendment was adopted in 1868.
Legal questions aside, the E.R.A. remains hugely popular among voters: Almost 80 percent of Americans supported adding it to the Constitution in a Pew Research Center poll last year, and activists believe it is not a question of if, but when.
“It’s, in many respects, an embarrassment that we don’t have express sex equality protections,” Ms. Franke said. “The E.R.A. provides an opportunity for a more modern approach to equality — I see it as a kind of modernizing tuneup of the Constitution that is way overdue.”
Emily Cochrane contributed reporting.
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