Why are these states being asked to ratify the ERA even though the deadline has passed? Since , ERA supporters have advocated for passage of ERA ratification bills in a number of the 15 so-called "unratified" states. ERA bills have advanced in committees and even in floor votes in some of those states. In five of the six years between and , the Virginia Senate passed a bill ratifying the Equal Rights Amendment, but the House of Delegates did not allow a companion bill to be released from committee.
In a significant breakthrough, on March 22, , 45 years to the day after Congress passed the amendment and sent it to the states for ratification, Nevada became the 36th state to ratify the ERA. Acceptance of that ratification period as sufficiently contemporaneous has led some ERA supporters to argue that Congress has the power to maintain the legal viability of the ERA's existing 35 state ratifications.
The time limit on ERA ratification is open to change, as Congress demonstrated in extending the original deadline, and precedent with the 14th and 15th Amendments shows that rescissions legislative votes retracting ratifications are not accepted as valid. Therefore, Congress may be able to accept state ratifications that occur after and keep the existing 35 ratifications alive. The legal analysis for this strategy is explained in "The Equal Rights Amendment: The issue, they said, is more of a political question than a constitutional one.
Beginning in , Representative Robert Andrews D-NJ introduced a bill in each Congressional session stating that when an additional three states ratify the ERA, the House of Representatives shall take any necessary action to verify that ratification has been achieved.
The Senate companion bill to that legislation was introduced by Sen. Lead sponsors of the "three-state strategy" bills in the th Congress are Sen. Most ERA advocates believe that at present both the traditional amendment process defined in Article V of the Constitution and the three-state strategy ratification process should be supported politically in an effort to put the ERA into the Constitution.
Can a state withdraw, or rescind, its ratification of a constitutional amendment that is still in the process of being ratified? According to precedent and statutory language, however, a state rescission or other withdrawal of its ratification of a constitutional amendment is not accepted as valid. For example, during the ratification process for the 14th Amendment, New Jersey and Ohio voted to rescind their ratifications after first voting yes, but they were both included in the published list of states approving the amendment in New York retracted its ratification of the 15th Amendment a month before the last necessary state ratified in , but it was counted as one of the ratifying states.
Tennessee, the final state needed to ratify the 19th Amendment guaranteeing women's right to vote, approved the amendment by one vote on August 18, The Tennessee House then "non-concurred" on August 31, but the Secretary of State had already announced the amendment's inclusion in the Constitution on August 26 now celebrated as Women's Equality Day. In The Story of the Constitution , the United States Constitution Sesquicentennial Commission explained that "an amendment was in effect on the day when the legislature of the last necessary State ratified.
Such ratification is entirely apart from State regulations respecting the passage of laws or resolutions. The rule that ratification once made may not be withdrawn has been applied in all cases; though a legislature that has rejected may later approve, and this change has been made in the consideration of several amendments.
It also states that [the U. Archivist's] certification of the legal sufficiency of ratification documents is final and conclusive, and that a later rescission of a state's ratification is not accepted as valid. These statements are derived from 1 U.
Once the process in 1 U. Another Constitutional Amendment would be needed to abolish the new Amendment. Do some states have state ERAs or other guarantees of equal rights on the basis of sex? Only a federal Equal Rights Amendment can provide U. As a point of historical comparison: States guarantee equal rights on the basis of sex in various ways. Some states place certain restrictions on their equal rights guarantees: State-level equal rights jurisprudence over many decades has produced a solid body of evidence about the prospective impact of a federal ERA and has refuted many of the claims of ERA opponents.
Since the 14th Amendment guarantees all citizens equal protection of the laws, why do we still need the ERA? The 14th Amendment was ratified in , after the Civil War, to deal with race discrimination. In referring to the electorate, it added the word "male" to the Constitution for the first time. Even with the 14th Amendment in the Constitution, women had to fight a long and hard political battle over more than 70 years to have their right to vote guaranteed through the 19th Amendment in It was not until , in Reed v.
Reed, that the Supreme Court applied the 14th Amendment for the first time to prohibit sex discrimination, in that case because the circumstances did not meet a rational-basis test. However, in that and subsequent decisions e. Boren, ; United States v. Commonwealth of Virginia, , the Court declined to elevate sex discrimination claims to the strict scrutiny standard of review that the 14th Amendment requires for certain suspect classifications, such as race, religion, and national origin.
Discrimination based on those categories must bear a necessary relation to a compelling state interest in order to be upheld as constitutional. However, such claims can still be evaluated under an intermediate standard of review, which requires only that such classifications must substantially advance an important governmental objective. The ERA would require courts to go beyond the current application of the 14th Amendment by adding sex to the list of suspect classifications protected by the highest level of strict judicial review.
In an interview reported in the January California Lawyer, the late Supreme Court Justice Antonin Scalia disregarded 40 years of precedent when he stated his belief that the Constitution does not protect against sex discrimination.
This remark, which provoked widespread public reaction, has been cited as clear evidence of the need for an Equal Rights Amendment in order to guarantee that all judges, regardless of their judicial or political philosophy, apply the Constitution to prohibit sex discrimination. The ERA is sometimes called the Women's Equality Amendment to emphasize that women have historically been guaranteed fewer rights than men, and that equality can be achieved by raising women's legal rights to the same level of constitutional protection as men's.
As its sex-neutral language makes clear, however, the ERA's guarantee of equal rights would protect both women as a class and men as a class against sex discrimination under the law. Without the ERA in the Constitution, the statutes and case law that have produced major advances in women's rights since the middle of the last century are vulnerable to being ignored, weakened, or reversed.
By a simple majority, Congress can amend or repeal anti-discrimination laws by a simple majority, the Administration can negligently enforce such laws, and the Supreme Court can use the intermediate standard of review to permit certain regressive forms of sex discrimination.
Ratification of the ERA would also improve the United States' global credibility in the area of sex discrimination.
Many other countries have in their governing documents, however imperfectly implemented, an affirmation of legal equality of the sexes. Ironically, some of those constitutions — in Japan and Afghanistan, for example — were written under the direction of the United States government.
How has the ERA been related to reproductive rights? The repeated claim of opponents that the ERA would require government to allow "abortion on demand" is a clear misrepresentation of existing federal and state laws and court decisions. In federal courts, including the Supreme Court, a number of restrictive laws dealing with contraception and abortion have been invalidated since the mid—20th century based on application of the constitutional principles of the right of privacy and the due process clause of the 14th Amendment.
The principles of equal protection or equal rights have so far not been applied to such cases at the federal level. State equal rights amendments have been cited in a few state court decisions e.
Those courts ruled that the state must fund both of those pregnancy-related procedures if it funds either one, in order to prevent the government from using fiscal pressure to exert a chilling influence on a woman's exercise of her constitutional right to make medical decisions about her pregnancy. The New Jersey Supreme Court issued a similar decision based on the right of privacy and equal protection, with no reference to its state constitution's equal rights guarantee.
The presence or absence of a state ERA or equal protection guarantee does not necessarily correlate with a state's legal climate for reproductive rights. For example, despite Pennsylvania's state ERA, the state Supreme Court decided that restrictions on Medicaid funding of abortions were constitutional. Supreme Court in separate litigation Planned Parenthood v. Casey, upheld Pennsylvania's restrictions on the abortion procedure under the federal due process clause.
State court decisions on reproductive rights are not conclusive evidence of how federal courts would decide such cases. For example, while some state courts have required Medicaid funding of medically necessary abortions, the U. Supreme Court has upheld the constitutionality of the federal "Hyde Amendment," which has for decades prohibited the federal government from funding most or all Medicaid abortions, even many that are medically necessary.
How has the ERA been related to discrimination based on sexual orientation and the issue of same-sex marriage? Even without an ERA in the Constitution, however, laws and court decisions have rapidly evolved over the past two decades toward legalizing same-sex marriage and overturning discrimination on the basis of sexuality, based primarily on equal protection and individual liberty principles.
At the state level, where most laws dealing with marriage are passed and adjudicated, laws, court decisions, and voter referendums increasingly supported the principle of equal marriage rights for same-sex couples, with or without the existence of a state ERA.
A federal Defense of Marriage Act DOMA , prohibiting the federal government from recognizing same-sex marriages and denying federal benefits to spouses in such marriages, was overturned by the Supreme Court in in U.
In June , by a decision in Obergefell v. Hodges, the Supreme Court conclusively recognized a constitutional right to same-sex marriage and required the states to permit same-sex couples to exercise that right. And that is just how constitutional law has generally evolved in our society: How has the ERA been related to single-sex institutions? Even without an ERA in the Constitution, Supreme Court decisions have for decades increasingly limited the constitutionality of public single-sex institutions.
In , the Court found in Mississippi University for Women v. Hogan that Mississippi's policy of refusing to admit males to its all-female School of Nursing was unconstitutional. Justice Sandra Day O'Connor wrote in the majority decision that a gender-based classification may be justified as compensatory only if members of the benefited sex have actually suffered a disadvantage related to it.
In the Court's United States v. Commonwealth of Virginia decision, which prohibited the use of public funds for then all-male Virginia Military Institute unless it admitted women, the majority opinion written by Justice Ruth Bader Ginsburg stated that sex-based classifications may be used to compensate the disadvantaged class "for particular economic disabilities [they have] suffered," to promote equal employment opportunity, and to advance full development of the talent and capacities of all citizens.
Such classifications may not be used, however, to create or perpetuate the legal, social, and economic inferiority of the traditionally disadvantaged class, in this case women. Thus, single-sex institutions whose aim is to perpetuate the historic dominance of one sex over the other are already unconstitutional, while single-sex institutions that work to overcome past discrimination are constitutional now and, if the courts choose, could remain so under an ERA.
How has the ERA been related to women in the military? Women have participated in every war our country has ever fought, beginning with the American Revolution, and they now hold top-level positions in all branches of the military, as well as in government defense and national security institutions.
They are fighting and dying in combat, and the armed services could not operate effectively without their participation. However, without an ERA, women's equal access to military career ladders and their protection against sex discrimination are not guaranteed. The issue of the draft is often raised as an argument against the ERA. In fact, the lack of an ERA in the Constitution does not protect women against involuntary military service.
Congress already has the power to draft women as well as men, and the Senate debated the possibility of drafting nurses in preparation for a possible invasion of Japan in World War II.
Traditionally and at present, only males are required to register for the draft. After removing troops from Vietnam in , the United States shifted to an all-volunteer military and has not since that time conscripted registered men into active service. In , in Rostker v.
Goldberg, the Supreme Court upheld the constitutionality of a male-only draft registration. In recent years, however, Department of Defense planning memos and Congressional bills dealing with the draft or national service have included both men and women in the system. The Department of Defense's decision to open all combat positions to women has resurrected the public debate about whether a future draft would include women. It is virtually certain that a reactivated male-only draft system would be legally challenged as a form of sex discrimination, and it would most likely be found unconstitutional, with or without an ERA in the Constitution.