U.S. Senator Ben Cardin

Letters From Ben

March 4, 2023

There Should Be No Deadline on Equality

Dear Fellow Marylander,

This week, on the eve of Women’s History Month, the Senate Judiciary Committee did something that had not happened since 1984. It held a hearing on the Equal Rights Amendment (ERA).

An overwhelming number of Americans, over 70 percent, believe the ERA already is part of our Constitution and the laws of the United States of America. Unfortunately, 100 years since the ERA was first proposed by Alice Paul, it still waits to be fully recognized as a constitutional amendment.

I was privileged to be a lead witness at the Judiciary Committee hearing, giving my testimony next to Republican Lisa Murkowski of Alaska, who has been a partner with me for many years in the effort to remove the arbitrary deadline for ERA ratification that had been set by Congress in the 1970s.

Our resolution, Senate Joint Resolution 4, which has the support of a majority of current senators, would remove the deadline form ratification and clarify that the ERA has met all of the requirements of Article V of the Constitution and is ratified. It’s language was developed in consultation with constitutional scholars, including Erwin Chemerinsky, Laurence Tribe, Kathleen Sullivan, Catharine McKinnon, Victoria Nourse, and former Senator Russ Feingold.

Congress approved the ERA by more than the required two-thirds majorities in both chambers. Thirty-eight states, the requisite three-quarters, have now ratified. It’s important to note that Article V puts no time limits on the time necessary for ratification. In fact, the 27th amendment, the last amendment ratified, was first introduced in 1791 as part of the Bill of Rights but not fully ratified until 1992 – over 200 years later. Apparently, congressional pay raises, the subject of this amendment, is more palatable to some of my colleagues than equality under the law.

Also fact: Congress changed the deadline for ratification of the ERA once before, extending it from seven years to 10, setting our own precedent that it could be done. Congress needs to finish the job and remove any ambiguity regarding the congressionally set deadline for ERA ratification, similar to what it did in 1992 to affirm the validity of state ratifications of the congressional pay raise amendment.

Congressional recognition of ratification of the ERA, which states, “Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex”, would affirm women’s equality in our Constitution, enshrining the principle of women’s equality and an explicit prohibition against sex discrimination in our nation’s foundational document.

Currently, the only right explicitly guaranteed regardless of sex in the U.S. Constitution is the 19th Amendment right to vote.

As the 28th Amendment, the ERA would serve as a new tool – for Congress, for federal agencies, and in the courts – to advance equality in the fields of workforce and pay, pregnancy discrimination, sexual harassment and violence, reproductive autonomy, and protections for LGBTQ+ individuals.

Enshrining this protection in our Constitution also ensures enduring protections for all Americans across the country. Existing legal protections against sex-based discrimination fall well short of addressing systematic, sex-based inequality in our society. The ERA is needed not only to keep progress moving forward, but also to protect against incursions on progress already made. Without explicit constitutional protection, hard-fought progress can be rolled back by future legislatures or courts.

America’s strength is in its values and equality is one of the most fundamental. We fall behind the world, however, when it comes to constitutional equality. Eighty-five percent of countries have some form of an equal rights amendment in their Constitution, and most U.S. states have some provision against discrimination based upon sex. The U.S. is the only industrial democracy that does not have a protection in its federal constitution against discrimination based upon sex. The ERA is important for us to pass for our own protections, but also for America’s global leadership on basic values.

Generations have fought to achieve major points of progress in our laws, but it is undeniable that work remains. Finally enshrining the ERA into the Constitution would be one major step that we could take toward a society that is truly equal on the basis of sex.

For my wife, my daughter and two granddaughters, I’m going to keep fighting to get this done. We need to do what is right and put equality into our Constitution.

There should be no deadline on equality.

Thank you for your time. Please feel free to reply to this email with your thoughts or experiences on the ERA, or any other issue. I value your feedback and we read all the responses.


   Ben Cardin

NOTE: If you would like to see the full Senate Judiciary Committee hearing on the ERA, and hear the detailed arguments, please use this link: judiciary.senate.gov