Mr. President, as we prepare to celebrate Mother’s Day this Sunday, today I am introducing a joint resolution which would remove the deadline for the states’ ratification of the equal rights amendment, ERA. I thank Senators Kirk, Mikulski, Murkowski, Harkin, Sanders, Levin, Menendez, Stabenow, Heinrich, Boxer, Gillibrand, Durbin, Lautenberg, Murphy, Baldwin, Landrieu, Brown, and Begich for joining me as original cosponsors.
When Congress passed the ERA in 1972, it provided that the measure had to be ratified by 3/4 of the States, 38 States, within 7 years. This deadline was later extended to 10 years by a joint resolution enacted by Congress, but ultimately only 35 out of 38 States had ratified the ERA when the deadline expired in 1982.
Congress has the authority to give the states another chance, and should do so. In 1992, the 27th Amendment to the Constitution prohibiting immediate Congressional pay raises was ratified after 203 years. Article V of the Constitution contains no time limits for ratification of constitutional amendments, and the ERA time limit was contained in a joint resolution, not the actual text of the amendment.
The Fourteenth Amendment of the Constitution requires “equal protection of the laws,” and the Supreme Court has so far held that most sex or gender classifications are subject to only “intermediate scrutiny” when analyzing laws that may have a discriminatory impact. In 2011 Supreme Court Justice Antonin Scalia gave an interview in which he stated that “certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.” Ratification of the ERA by state legislatures would provide the courts with clearer guidance in holding gender or sex classifications to the “strict scrutiny” standard.
The ERA is a simple and straightforward constitutional amendment. It 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.” The amendment gives power to Congress to enforce its provisions by appropriate legislation, and the amendment would take effect two years after ratification.
Today, nearly half of the States have a version of the ERA written into their State constitution. My own State of Maryland’s constitution reads that “Equality of rights under the law shall not be abridged or denied because of sex.”
I am therefore pleased to introduce this joint resolution today, and I thank Representative Andrews for introducing a companion version in the House today as well. This legislation is endorsed by a wide variety of groups, including United 4 Equality, National Council of Women’s Organizations, American Association of University Women, Business & Professional Women’s Foundation, Federally Employed Women, and the U.S. Women’s Chamber of Commerce. I urge my colleagues to support this legislation.