Publish ERA, let skirmishes begin

Time to settle whether imposed time limits are legal

I’m thrilled that President Joe Biden signed into federal law Dec. 13 a proposal to protect gay and interracial marriage. It’s an attempt to deter an increasingly conservative Supreme Court from stripping away those rights. We’ll see if it works.

What an outrage, then, that the president is fighting adding the Equal Rights Amendment for women to the constitution. He’s gone to court to prevent the ERA from being published by the National Archives and Records Administration. In this, he has followed in the footsteps of the man he refers to as “the former guy,” Donald J. Trump. 

Proponents say that the ERA was ratified in 2020 when Virginia became the 38th state to pass it, despite time limits imposed by Congress years ago. More on that in a minute. Publishing the amendment is a crucial, if bureaucratic, step to send a ratified amendment to the states and add it to the Constitution. The head of the National Archives - the keeper of the nation’s file cabinets - is tasked with this job. But Trump and now Biden have fought to keep that from happening.

“The ERA has become a victim of the very discrimination it was written to prevent,” said Massachusetts attorney Wendy Murphy.

Murphy is director of the Women’s and Children’s Advocacy Project at New England Law/Boston. In January of 2020, on behalf of the nonprofit organization Equal Means Equal, Murphy filed a federal lawsuit in Massachusetts to compel publication of the ERA. The judge dismissed the case for lack of standing, stating that those who brought the lawsuit didn’t prove that they had suffered harm that would be protected by the ERA.  Right after Murphy sued in 2020, the last three states to ratify the ERA, Virginia, Nevada and Illinois, also sued. Their suit, too, was dismissed for lack of standing.

In September. the U.S. Court of Appeals for the District of Columbia heard the states’ appeal. The Biden administration went on record in court opposing publication of the ERA. No ruling has been handed down, but the judges’ comments were not encouraging.

In 1975, I went to the polls for the first time and cast my very first vote in favor of adding an Equal Rights Amendment to the New York State constitution. That measure lost by 400,000 votes. It was the canary in the coal mine, a sign of the coming opposition to the federal ERA, much of it galvanized by unwarranted fear and false information. Yet I was convinced that passing the Equal Rights Amendment nationwide was only a matter of time. 

 Nearly 50 years later, I’m still waiting.  

The amendment has fewer than 60 words:  

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex. 

Sec. 2 The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Sec. 3 This amendment shall take effect two years after the date of ratification. 

That’s it. 

According to the text of the amendment, the ERA should have become part of the constitution in January, two years after Virginia ratified.  It could have prevented Roe v. Wade from being overturned, one reason why right-leaning states oppose it so strongly.  

The biggest barrier?  Time limits.  

The  Equal Rights Amendment passed Congress in 1972 after having been introduced every year for nearly 50 years.  But Senate opponents tacked on to the preamble of the joint resolution passing the amendment a seven-year time limit for states to ratify the amendment. 

When the amendment stalled after 35 of the needed 38 states ratified, the seven-year time limit was extended for another three years. When the second time limit expired, opponents of women’s equality danced on what they assumed was the grave of the ERA. 

After all, opponents crowed, such a radical amendment would allow gay people to marry. And women, fragile flowers that they are, could be sent into combat.

Well.  Fast forward to the present day. Gays are marrying in droves, and good for them. Female soldiers have fought, bled and died in combat. The Constitution still doesn’t guarantee women equal rights.  

Hundreds of legal experts and a number of U.S. senators don’t think that the ERA ever died. That it is currently the 28th amendment to our Constitution. 

Prominent constitutional scholars argue that the ERA time limit was advisory only, as it was not in the text of the amendment. They also say that the five states which rescinded their approval of the ERA many years after approving it have no settled right to rescind (at least two states tried to rescind the 14th amendment, to no avail).   Article V, which lays out precisely the steps to add an amendment to the Constitution, says nothing about time limits. Congress added them for several amendments in the 20th century to increase its own power and control. But those time limits were all added to the text of those amendments. Not so the ERA. 

Congress passed  amendments to the Constitution with time limits in the text of the 18th Amendment, prohibiting the sale of alcohol, repeal of Prohibition (the 21st Amendment)  and Amendments 22 and 23, both concerning the presidency.  

Here’s the infuriating part. In 1992, states ratified the 27th Amendment to the Constitution  affecting congressional compensation. First passed by Congress in 1789, the amendment drifted around for 203 years before approval.

Really? The topic of congressional pay can hang around for two centuries before passage, but the rights of half the country had a seven-year deadline?  Please.

So, now what?  

The ERA needs to be published. Then we can all make popcorn and watch the legal skirmishes commence. But once published, it will be up to conservatives to prove why equality for women should continue to be excluded from the constitution of the world’s oldest democracy.   

Let the games begin, President Biden. What are you afraid of?