On Tuesday, Feb. 28, the Senate Judiciary Committee held a hearing on the Equal Rights Amendment (ERA)—the first Senate committee hearing on the ERA since 1984. At the hearing, constitutional law scholars, ERA advocates and lawmakers from both sides of the aisle made the case for enshrining equality in the U.S. Constitution, and what Congress can do to make ERA ratification a reality.
The hearing focused on a joint resolution filed last month by Rep. Ayanna Pressley (D-Mass.) in the House and Sen. Ben Cardin (D-Md.) in the Senate, which would remove the arbitrary timeline for ratification and recognize the ERA as part of the Constitution. (The House of Representatives has twice passed a similar resolution lifting the timeline—in February 2020 and March 2021.)
The proposed amendment reads: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
“Quite frankly, most Americans think this is already in our Constitution, but Congress needs to complete the job,” said Sen. Cardin in his opening remarks. “The ERA is all about equality—the most fundamental of American values.”
Article V of the U.S. Constitution sets out two requirements for amendments: approval by two-thirds of both chambers of Congress, and ratification by three-fourths (38) of the states. In 1971, the U.S. House of Representatives approved the ERA with a bipartisan vote of 354–24. The next year, the Senate approved the ERA by another bipartisan vote of 84-8. In January of 2020, Virginia became the 38th state to ratify the ERA. But despite finally achieving all of the requirements to become an amendment to the Constitution, recognition of the ERA was blocked by the Trump administration in 2020, and has stalled in Congress ever since.
ERA Could Provide Support for Reproductive Rights
The push to pass the Equal Rights Amendment took on a new urgency last summer as an avenue for shoring up women’s rights, especially reproductive rights. Abortion barriers deprive women of bodily autonomy and control over the timing of childbearing, and predictably exacerbate the inequalities women suffer in educational, economic and political life caused by their disproportionate responsibility for childrearing and lack of public policies supporting families, like paid family and medical leave and universal child care.
Sen. Dick Durbin (D-Ill.) emphasized this point at the Tuesday hearing: “There is no room for uncertainty when it comes to protecting equal rights under the law. Sadly that lesson was driven home last year by the Supreme Court’s decision to overturn Roe v. Wade, and for the first time in history, to take away a constitutional right from every woman in America. … When a sitting justice on the Supreme Court, Clarence Thomas, argues that the Court should reconsider constitutional protections for family planning and birth control, protections the Court recognized under the 14th Amendment nearly 60 years ago, the ERA is far from redundant, far from unnecessary.”
ERA and the Pay Gap
The ERA would also serve as a bulwark against the pay gap and could help to close pay disparities between men and women. Women of color feel these differences most severely.
“There should be stronger remedies to make sure women, all women, are paid an equal wage based on their abilities and qualifications and without discrimination based on sex,” said Illinois Lieutenant Governor Juliana Stratton at the hearing. “These protections will be of particular significance to women of color who face more workplace discrimination than their white counterparts. … It is time to make real a vision 100 years in the making, so that our daughters, and our granddaughters, and the next generation of women are seen as exactly who they are: equals.”
83 Percent of Americans Support the ERA
The ERA is wildly popular: 83 percent of Americans believe it should be ratified and incorporated into the U.S. Constitution. Its support is even higher among young people: 90 percent of 18- to 24-year olds are in favor of the ERA.
“Although I am as capable as any man, the system is stacked against me,” said Thursday Williams, college student and ERA Coalition board member.. “As a woman of color, I am more likely to be offered less than a man for the same work. I am more likely to be overlooked for raises and promotions. I will have to work twice as hard to get the same recognition as my male colleagues and right now I will have limited recourse to fight against it. … It is time we stop disappointing the future generation.”
The Equal Rights Amendment Has Been Bipartisan From Its Inception
The ERA has had bipartisan support since its inception, and today the amendment still enjoys wide support among Democrats, Republicans and Independents.
“The ERA is the result of a century of extraordinary bipartisan cooperation,” said constitutional law scholar Kathleen M. Sullivan. “The ratification process was similarly bipartisan.” Sullivan urged lawmakers to “honor to this bipartisan history by taking steps now to enshrine the principle of women’s equality and an explicit prohibition against sex discrimination in the nation’s foundational document.”
At the hearing, Republican Sen. Lisa Murkowski (Alaska) urged her colleagues to join her in supporting the ERA. “We still have a long way to goto when it comes to achieving equality for women. And I think we need the Equal Rights Amendment to get there. I’m proud of the fact that my state, Alaska, ratified the ERA in 1972, the same year it passed the House and Senate and was signed by President Carter. A few months later, Alaskans amended the state constitution to prohibit discrimination based on sex. Women should have equal treatment to men under the law and Congress should do all it can to ensure the ERA is finally made part of the Constitution—it is long overdue.”
In the past, Republican Senate leadership has used the filibuster to block the measure—but now, constitutional law scholars from the ERA Project at Columbia Law School argue that Article V matters are not subject to the filibuster.
In testimony submitted before the Tuesday hearing, they argued, “The project of constitutional amendment is among the most quintessentially democratic exercises of self-government, and as such, the process should be left to the most representative bodies. The filibuster is widely understood to be the most anti-democratic tool in Congress, one that weaponizes minority rule. Its use is all the more problematic when deployed to defeat a constitutional amendment that has already satisfied all of the requirements proscribed by Article V.”
New District Court Ruling Says Court Cannot Mandate the Archivist to Certify—Only Congress Can
As the hearing was starting, news broke of a decision from the U.S. Court of Appeals for the District of Columbia Circuit, a response to a 2021 request from Attorneys General Aaron Ford of Nevada and Kwame Raoul of Illinois to review a previously issued lower court decision that dismissed their case to enforce ratification of the ERA and a demand that the federal archivist add the ERA to the Constitution.
The ruling essentially said that the archivist’s hesitation to certify the ERA on orders from the Trump Justice Department was not clearly and indisputably wrong. They seemed to suggest that Congress has the power to set a ratification deadline both at the time an amendment is proposed “and thereafter”—which would support the idea that Congress can pass the joint resolution to remove the timeline.
ERA Opposed by the Republicans on the Senate Judiciary Committee
The committee’s ranking Republican, Sen. Lindsey Graham (S.C.) made various arguments that the amendment’s timeline in the preamble prevented Congress from recognizing the ERA. He also raised the issue of state rescissions as his reason for opposing the joint resolution. Other anti-ERA Republican senators like Sen. Cindy Hyde-Smith (Miss.) argued that times have changed since 1972 when the ERA was passed by Congress, and that the ERA was s no longer needed.
Both of Graham’s objections to the resolution were quickly disputed.
Sullivan responded to the timeline issue by pointing out that the timeline was included in the preamble to the ERA, not in the text of the amendment. “Preambles can have eloquent power. The preamble to the Constitution is perhaps the greatest preamble ever written, but preambles do not drive the interpretation of Article V joint resolutions, and they never did.” Sullivan continued, “And no court has ever declared it. And why does that matter? It matters because the states vote on the text of the amendment. When they ratify, the states are not ratifying the preamble, they are ratifying the text.”
Responding to a question about the five states that have sought to rescind their ratification—Nebraska, Tennessee, Idaho, Kentucky and South Dakota—Sullivan explained: “A state’s rescission has no force under the text of Article V which speaks of ratification and not about rescission.”
“When two states tried to withdraw or rescind their ratification of the 14th Amendment, after it was proposed and adopted, this body rejected that,” she continued. “So there’s precedent in this body for rejecting efforts by states to rescind. And to the extent this body has the power I described before [to finally recognize the ERA], this body has the power to affirm that those rescissions are ineffective now, just as they were for the 14th Amendment. We wouldn’t have had the 14th Amendment today, if we listened to rescissions.”
There is no mandate in the U.S. founding document that requires gender equality, “no substitute for an amendment to the Constitution formally guaranteeing sex equality as one of our enduring and foundational principles,” said Sullivan. “Congress clearly has the constitutional authority to eliminate the deadlines it previously set for ratification.”
“What kind of America do we want to leave our daughters and granddaughters?” asked Sen. Durbin. “A country in which their fundamental rights are safe and secure? Or one in which the Constitution fails to recognize fundamental equality on the basis of sex?”
Your move, Congress.