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Wednesday, March 6, 2013

The Proposed Equal Rights Amendment: Contemporary Ratification Issues

Thomas H. Neale
Specialist in American National Government

The year 2012 marked the 30th anniversary of the expiration of the proposed Equal Rights Amendment’s extended ratification deadline. Since that time, new analyses have emerged that bear on the question of whether the amendment proposed in 1972 remains constitutionally viable. This report examines the legislative history of an Equal Rights Amendment (ERA) and both identifies and provides an analysis of contemporary factors that may bear on its present and future viability.

An Equal Rights Amendment was first introduced in Congress in 1923. After 49 years of effort by supporters, an amendment declaring that “equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex” was proposed by Congress for ratification by the states in 1972. This amendment will be referred to hereinafter as “the proposed Equal Rights Amendment,” or “the proposed ERA.” Article V of the Constitution requires that three-fourths of the states, 38 at present, must ratify an amendment before it becomes part of the Constitution. In addition to this requirement, Congress has added a seven-year ratification deadline to the 18
th, 20th, and all subsequent amendments. In the proposed ERA, the deadline was included in the preamble to the authorizing resolution, rather than in the body of the amendment. As originally proposed, the amendment would have expired in 1979 if not ratified by 38 states.

Although the proposed ERA was eventually approved by 35 states, controversy and opposition combined with other issues to bring the ratification process to a halt as the deadline approached. In 1978, Congress voted to extend the deadline until June 30, 1982. Opponents claimed the extension violated the spirit, if not the letter of the amendment process, but supporters insisted the amendment needed more time for state consideration, and that the deadline, as noted previously, was placed not in the amendment, but in the preamble to the authorizing resolution. Notwithstanding the action of Congress, no further states ratified the proposed Equal Rights Amendment during the extension period, and it was presumed to have expired in 1982. During the same period, the legislatures of five states passed resolutions rescinding their earlier ratifications, a process referred to as rescission. The Supreme Court had agreed to hear cases on the rescission question, but the proposed ERA expired before they could be heard, and the High Court dismissed the cases as moot.

In recent years, proponents of the proposed Equal Rights Amendment have asserted that Congress possesses both the authority to repeal the original ratification time limit and its 1978 extension of that limit, and to restart the clock on ratification at the current level of 35 states, without a time limit. Thus, they contend that only three additional state ratifications would be necessary at any time in the future for the proposed ERA to be adopted as an amendment to the Constitution. Joint resolutions to repeal the deadline and reopen the ratification process were introduced in the Senate and House of Representatives during the 112
th Congress. Although no action was taken beyond routine committee referral, new versions of these measures may be introduced in the 113th Congress.

In support of their arguments, ERA proponents claim that Article V of the Constitution gives Congress uniquely broad authority over the amendment process. They also point to Supreme Court decisions, Dillon v. Gloss and Coleman V. Miller, that they claim provide support for this assertion. In addition, they cite the example of the 27
th Amendment, also known as the “Madison Amendment,” which was ratified in 1992, after having been pending for 203 years. This, they maintain, further supports their assertion that proposed amendments that do not include time
limits within the body of the amendment text itself, remain viable and eligible for ratification indefinitely.

Opponents of further extension may argue that attempting to revive the amendment would be politically divisive, and that providing the proposed ERA with a “third bite of the apple” would be contrary to the spirit and perhaps the letter of Article V and the intentions of Congress in setting the earlier limits. They would arguably reject the example of the 27
th Amendment, which, unlike the proposed ERA, never had a ratification time limit. Further, they might claim that efforts to revive the proposed Equal Rights Amendment ignore the possibility that state ratifications may have expired with the proposed ERA in 1982, and that proponents of the amendment do not address the issue of state rescission, which has never been specifically addressed by any U.S. court, but only dismissed by the Supreme Court because the cases accepted on appeal had become moot.

These are some of the issues that could come before Congress should legislation repealing the earlier deadlines assigned to the proposed Equal Rights Amendment be given active consideration in the future, or should Congress seek to accede to additional ratifications without consideration of the expired deadlines in the congressional resolutions.

Date of Report: February 28, 2013
Number of Pages: 31
Order Number: R42979
Price: $29.95

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