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Friday, June 7, 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. In 1972, after 49 years of effort by supporters, Congress proposed 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,” referred to hereinafter as “the proposed Equal Rights Amendment,” or “the proposed ERA.” The Constitution requires that three-fourths of the states, 38 at present, must ratify an amendment before it takes effect. When it proposed the ERA, Congress followed contemporary practice by adding a seven-year ratification deadline to the amendment’s preamble: if not ratified by 38 states by March 22, 1979, the amendment would expire.

Although the proposed ERA was eventually approved by 35 states, opposition and various controversies brought the ratification process to a halt as the deadline approached. In 1978, Congress extended the deadline until June 30, 1982. Opponents claimed this violated the spirit, if not the letter of the amendment process; supporters insisted the amendment needed more time for state consideration. Further, they justified extension because the deadline was placed not in the amendment, but in its preamble. Despite the extension, no further states ratified during the extension period, and it was presumed to have expired in 1982. During this period, however, the legislatures of five states passed resolutions rescinding their earlier ratifications. The Supreme Court agreed to hear cases on the rescission question, but the proposed ERA expired before they could be heard, and the Court dismissed the cases as moot.

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 support this assertion. In addition, they cite the example of the Twenty-Seventh “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 amendment text itself remain viable and eligible for ratification indefinitely.

In recent years, some advocates of the proposed Equal Rights Amendment have devised the “three-state” approach, which embraces the assertion that Congress possesses the authority both to repeal the original ratification time limit and its 1978 extension, and to restart the ratification clock at the current 35-state level, without a time limit. They contend that only three additional ratifications would be necessary any time in the future for the amendment to become effective.

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 Congress’s earlier intentions. They would arguably reject the example of the Twenty-Seventh Amendment, which, unlike the proposed ERA, never had a ratification time limit. Further, they might claim that efforts to revive the proposed ERA ignore the possibility that state ratifications may have expired with the 1982

deadline, 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.

The “fresh start” approach provides an alternative means to revive the Equal Rights Amendment. It consists of starting over by introducing a new amendment, identical to, but distinct from, the original. A fresh start would avoid potential controversies associated with the “three-state” approach, but would face the stringent constitutional requirements of two-thirds support in both chambers of Congress and ratification by three-fourths of the states.

Legislation embracing both approaches has been introduced in the 113
th Congress. S.J.Res. 10, offered by Senator Robert Menendez on March 5, 2013, proposes a “fresh start”; whereas S.J.Res. 15 and H.J.Res. 43, both introduced on May 9 by Senator Ben Cardin and Representative Robert J. Andrews, respectively, incorporate the “three-state” approach. These proposals would restart the ratification process for the proposed Equal Rights Amendment at 35 states and extend it indefinitely by effectively repealing both the original seven-year ratification time limit, and its later extension.

Additional proposals incorporating either approach may be introduced in the 113
th Congress.

Date of Report: May 21, 2013
Number of Pages: 32
Order Number: R42979
Price: $29.95

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