The Dangerous Resurrection of the Equal Rights Amendment

Illinois just became the 37th state to vote for ratification of the Equal Rights Amendment (ERA), one shy of the required minimum of 38 states. But a couple legal questions need resolved.

The ERA declares, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

After getting 22 of the necessary 38 state ratifications within the first year, the ERA stalled in 1974 with 35 states ratifying. But Nevada became the 36th state on March 22, 2017 and Illinois became the 37th on May 30, 2018. This year’s ratification efforts in Arizona, Florida, and Virginia failed.

The ERA’s declaration seems simple enough, but a lot has changed in our culture and legal system since it was sent to the states on March 22,1972. Now that the nation is redefining “sex” as “gender identity”, enshrining this in the U.S. Constitution could have some significant legal ramifications. While passing legislation at the state or federal level to clarify the meaning of “sex” within law may be difficult, clarifying the meaning within a Constitutional Amendment would be virtually impossible.

 

On May 30, 2018, Illinois became the 37th state to ratify the Equal Rights Amendment. A minimum of 38 states must do so to amend the U.S. Constitution.

 

Complications

Even if a 38th state votes to ratify, there are two complications that must be addressed before the U.S. Constitution would officially be amended:

  • The deadline to ratify the ERA passed in 1982, so a vote in Congress to extend the deadline would be necessary.
  • Five of the 37 states have voted to rescind or otherwise withdraw their ratification. There is a legal question concerning a state’s ability to do so.

 

ERA Text

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.

 

Points to Consider

  • Happy business people laughing against white background

 

Questions

  • Do we want to oppose/fight ratification of the Equal Rights Amendment?
    • If so, where do we draw the battle lines?
      • In the state legislatures to prevent the 38th state from ratifying?
      • In the state legislatures to urge additional states to rescind ratification?
      • In the courts, arguing that ratifications were rescinded?
      • In Congress to prevent an extension of the ratification deadline?
      • Other?
    • If not, what can we do to prepare for the changes, questions, and battles that will be coming after the Constitution is amended? Of what we can do, what should we do?
  • What groundwork do we need to lay for the two-year period between ratification by 38 states and amendment taking effect? (i.e.—addressing the changes, questions, and battles sure to come)

 

States That Have NOT RATIFIED

 

  • Alabama
  • Arizona
  • Arkansas
  • Florida
  • Georgia
  • Louisiana
  • Mississippi
  • Missouri
  • North Carolina
  • Oklahoma
  • South Carolina
  • Utah
  • Virginia

 

Failed Ratification EFFORTS IN 2018

 

  • Arizona
  • Florida
  • Virginia

 

 

States That Have RESCINDED

 

  • Idaho
  • Kentucky
  • Nebraska
  • South Dakota
  • Tennessee