{"id":840,"date":"2019-02-05T16:12:08","date_gmt":"2019-02-05T21:12:08","guid":{"rendered":"https:\/\/sites.bu.edu\/dome\/?p=840"},"modified":"2019-02-05T16:13:14","modified_gmt":"2019-02-05T21:13:14","slug":"examining-the-eras-comeback-the-legal-debate-over-a-38th-ratification","status":"publish","type":"post","link":"https:\/\/sites.bu.edu\/dome\/2019\/02\/05\/examining-the-eras-comeback-the-legal-debate-over-a-38th-ratification\/","title":{"rendered":"Examining the ERA\u2019s Comeback: the Legal Debate Over a 38th Ratification"},"content":{"rendered":"

At a time when the issues of gender and sexual harassment have come to a head, some activists are looking to a decades-old proposed constitutional amendment to secure gender equality. The Equal Rights Amendment<\/span><\/a> (\u201cERA\u201d), originally proposed by suffragist Alice Paul<\/span><\/a> in 1923, would affirmatively state that no person\u2019s rights under the law may be denied or abridged based on sex. This would raise the level of judicial scrutiny afforded to claims of gender discrimination from the \u201cintermediate\u201d<\/span><\/a> and often uncertain level of scrutiny to the much more arduous level of strict scrutiny. Strict scrutiny would make gender a protected class and grant legal safeguards for gender discrimination claims on par with those of claims of racial discrimination. Despite renewed public support for the ERA, its complicated history and potential future passage raise contentious legal issues.\"\"<\/a><\/p>\n

The ERA was introduced in every Congressional session<\/span><\/a> from 1923 until its eventual passage in 1972. After passage, the landmark legislation went to the states for ratification; needing the ratification of at least 38 states\u2014two thirds of the states\u2014before the congressionally imposed deadline of March 22, 1979. While there was an initial surge in ratification<\/span><\/a>, only 35 states ultimately ratified the ERA. Congress extended the deadline<\/span><\/a> to June 30, 1982, however no other states ratified in that time.<\/p>\n

After the deadline passed without the prerequisite ratification, the ERA largely disappeared from the national conversation and lay dormant until its contemporary resurgence. Millions participated in the Women\u2019s Marches<\/span><\/a> in response to President Trump\u2019s election, and the #MeToo<\/span><\/a> movement aimed at ending workplace sexual assault and harassment; both reflect a renewed push for gender equality. In light of those movements, the ERA, too, gained steam.\u00a0 On March 22, 2017, exactly 45 years after Congress first passed the ERA, Nevada<\/span><\/a> became the 36th<\/sup> state to ratify the amendment. A little over a year later, on March 30, 2018, Illinois<\/span><\/a> followed suit, leaving the ERA needing only one more state to reach the required two-thirds of states. The final necessary ratification may come in the upcoming legislative session beginning in January, as Virginia lawmakers have recently wrapped up VAratifyERA<\/a><\/u>, a 10-day, bipartisan bus tour of Virginia aiming to gather support for the bill across the state.<\/p>\n

\"\"<\/a>While activists pursue a 38th<\/sup> ratification, legal scholars debate the legitimacy of a passage of the amendment so far beyond Congress\u2019 deadline. Does Congress have the power to simply extend the deadline again and certify the ERA\u2019s passage if a 38th<\/sup> state passes it, or did the ERA expire in 1982, rendering a 38th<\/sup> ratification moot?<\/p>\n

According to a 2018 Congressional Research Service (CRS) report<\/span><\/a> on the ERA and ratification issues, ERA advocates argue that a contemporary ratification is valid given Congress\u2019 broad authority over the constitutional amendment process, including the power to extend or limit the deadline for the ERA. ERA supporters point to Article V<\/span><\/a> of the Constitution\u2014giving Congress broad power to propose amendments \u201cwhenever two thirds of both houses shall deem it necessary\u201d and stating that proposed amendments are \u201cvalid to all intents and purposes\u201d when ratified by the legislatures of three fourths of states\u2014to argue that Congress may extend ratification deadlines as it sees fit. Notably, Article V does include any specific time limits related to constitutional amendments, while other constitutional rules with time periods are explicitly specified. Proponents of the ERA, including Nevada\u2019s ERA Ratification Organizer, <\/span><\/a>point to the 27th<\/sup> Amendment\u2019s ratification process to support an expanded\u2014if not long\u2014ratification process. The 27th Amendment<\/span><\/a>, the most recent amendment to the Constitution imposing rules on increases or decreases to the salaries of members of Congress, was introduced in 1789, without a deadline, and was not fully ratified until 1992. \u00a0ERA supporters argue that Congress can extend deadlines where the time limits appear only in the original proposing clause, not the text of the amendment<\/span><\/a> itself. Finally, the fact that Congress already extended the deadline once suggests that Congress has the power to do so again.<\/p>\n

According to the CRS report<\/span><\/a>, opponents argue that despite Congress\u2019 plenary power over the constitutional amendment process, extending the ERA deadline to allow for contemporary ratification would be unconstitutional because of ratifying states\u2019 potential reliance on the time period in their decision to ratify. However, since the deadline was only in the proposing clause and all of the states\u2019 ERA ratifications prior to the first deadline extension raised no constitutional issues, this argument may lack merit.<\/p>\n

Significantly, a 38th<\/sup> ratification of the ERA may raise the question of whether states\u2019 rescinding of ratifications of constitutional amendments are valid, as five states\u2014Idaho, Kentucky, Nebraska, South Dakota, and Tennessee\u2014have withdrawn their ratifications<\/span><\/a>. This is not a settled area of law, but ERA proponents argue that such rescissions are not legal, as Article V provides only for ratification procedures, not rescission<\/span><\/a>. The passage of the Fourteenth Amendment in 1868 lends credence to this argument<\/span><\/a>, at it was certified based on the ratification of a two-thirds majority of states including Ohio and New Jersey, despite the fact that they had previously attempted to withdraw ratification. Additionally, the Supreme Court has been reluctant to weigh in on the validity of states\u2019 ratifications of recessions of constitutional amendments. In Coleman v. Miller<\/span><\/a> (1939)<\/span>, the Court regarded the question of the \u201cefficacy of ratifications by state legislatures\u2026\u201d as a political question and did not issue a ruling on the merits. Therefore, it is likely that Congress could certify the ERA in a similar vein to the Fourteenth Amendment\u2014that is, including ratifications from states that have since attempted to withdrawal their ratifications\u2014legally and without intervention from the courts.\"\"<\/a><\/p>\n

While the legal status of a 38th<\/sup> state ratification may be murky, the importance of the ERA today is clear. United States Supreme Court Justice Ruth Bader Ginsburg has supported the ERA, arguing that while recent women\u2019s rights advancements through legislation are positive, it could be repealed without an underlying principle of equality enshrined in the Constitution. For example, a 2012 Wisconsin Act<\/span><\/a> rolled back protections for victims of wage discrimination. Practically<\/span><\/a>, the ERA\u2019s heightened scrutiny on gender discrimination cases would go a long way in preventing rollbacks of laws protecting gender equality as well as preventing the implementation of laws that actively discriminate based on gender. For example, the ERA would likely have prevented the rollback of the Wisconsin wage equality law. Experts also argue<\/a><\/u> that a heightened level of scrutiny for gender discrimination claims likely would have changed the outcome of the famous 2014 Burwell v. Hobby Lobby<\/a><\/u> case, which allowed for-profit companies to deny its employees health coverage of contraception based on religious objections. If the ERA can win its final state ratification and pass through the many legal hurdles it faces, it would represent the realization of an almost century-long ordeal to ensure a basic principle of equal protection and rights under the law regardless of gender.<\/p>\n

 <\/p>\n

\"\"<\/a>Chloe<\/span>\u00a0Aubuchon<\/span><\/strong>\u00a0graduated from the University of Michigan with a B.A. in International Studies and Spanish in 2017 and anticipates graduating from Boston University School of Law in May 2020.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

At a time when the issues of gender and sexual harassment have come to a head, some activists are looking to a decades-old proposed constitutional amendment to secure gender equality. The Equal Rights Amendment (\u201cERA\u201d), originally proposed by suffragist Alice Paul in 1923, would affirmatively state that no person\u2019s rights under the law may be […]<\/p>\n","protected":false},"author":15923,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[10,4,5],"tags":[109,108,19,225,226,227],"_links":{"self":[{"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/posts\/840"}],"collection":[{"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/users\/15923"}],"replies":[{"embeddable":true,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/comments?post=840"}],"version-history":[{"count":9,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/posts\/840\/revisions"}],"predecessor-version":[{"id":867,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/posts\/840\/revisions\/867"}],"wp:attachment":[{"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/media?parent=840"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/categories?post=840"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/tags?post=840"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}