APU Business Legal Studies Original

The Equal Rights Amendment: 98 Years and Counting (Part I)

By Cynthia Gentile
Faculty Member, School of Business

Note: This article is part 1 of a two-part series on the history of the Equal Rights Amendment and its future.

March is Women’s History Month – a time to honor the impact women have had on society and to reflect on the many challenges we still face in our fight for equality. If you ask 10 people, you are likely to find five who believe the Equal Rights Amendment (ERA) was added to the Constitution years ago and that the struggle for legal equality is over. Perhaps nothing is more emblematic of this fight than the ongoing legal battle around the Equal Rights Amendment.

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The History of the Equal Rights Amendment

Women’s suffrage has traditionally had a complicated reality. Although the passage of the 19th Amendment in 1920 granted women the right to vote, these legal protections extended only to white women in reality. The same voter suppression tactics used to keep black men from voting – things like poll taxes and literacy tests — were extended to black women.

Indigenous women, who were not even considered citizens in 1920, did not have legal access to the ballot until 1924. Even as late as 1962, some states kept native women from voting by declaring residents of a reservation were not residents of the state.

In 1923, just three short years after women gained the right to vote in the United States, women’s suffragist leader Alice Stokes Paul drafted the Equal Rights Amendment, which read, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” These 24 words were written to end legal distinctions between genders that affected a woman’s right to own property, work outside of the home and achieve financial independence, among other basic rights.

The path to ratification has been hard-fought and is not over yet. Although Alice Paul drafted the text of what would then have been the 27th Amendment in 1923, it wasn’t until the 1960s and through the impact of first-wave feminism that ratification efforts gained momentum.

In 1972, the Equal Rights Amendment passed in both the House and the Senate. As is Constitutionally required, the Amendment was then sent to the states for ratification. Approval by a two-thirds majority – or 38 states – is required to pass a Constitutional Amendment.

Although the Constitutional process for ratification makes no mention of a time limit, Congress placed a seven-year time limit on the ratification of the ERA. By 1977, 35 states had ratified the Equal Rights Amendment, but anti-ERA efforts began to take hold across the country. Alice Paul died that same year in a nursing facility near her childhood home in New Jersey, never seeing the protections she fought so hard for become law.

In 1979, Congress extended the deadline by three years, so that it would expire on June 30, 1982. But by that deadline, the Amendment was still three states short of 38.

Although efforts for full legal equality for all people continued through the ‘80s, ‘90s and early 2000s, it wasn’t until 2017 — and through the Herculean efforts of Nevada State Senator Pat Spearman — that the ERA ratification fight was revived. Nevada became the 36th state to ratify the Equal Rights Amendment, 35 years after the original deadline.

In 2018, Illinois became the 37th state to ratify the Equal Rights Amendment. In 2020, Virginia ratified the ERA, fulfilling the two-thirds requirement; ironically, this passage occurred 38 years after the deadline. Ratification efforts are currently underway in North Carolina and Florida.

But the fight is far from over. Five states – Nebraska, Tennessee, Idaho, Kentucky and South Dakota – have attempted to rescind their ratification. This effort is legally questionable at best, since Congress rejected efforts to rescind ratification of the 14th Amendment in 1867.

Where Do We Go from Here to Ratify the ERA?

There are currently two recognized paths available for the ERA to be ratified to the U.S. Constitution:

  1. Three-State Strategy: New bills would remove the time limit on the ERA’s ratification process and declare it complete when three-fourths (38) of the states ratify, thereby retaining the existing 35 state ratifications as viable.
  2. “Begin Anew” Strategy: Traditional legislation would ratify the ERA by the Constitution’s Article V ratification process.

The Three-State Strategy Legislation

This plan is widely considered to be the fastest path to full Constitutional ratification. The seven-year deadline under which the original ERA advocates labored was not written into the Amendment itself, but rather as part of the preamble. Legal scholars differ as to the binding nature of such language, especially considering that the most recent Constitutional Amendment – one centered on Congressional salaries – took 203 years to be ratified.

Additionally, many scholars assert that if Congress can add a deadline, then Congress can also remove a deadline. There is widespread bipartisan support for these legislative efforts.

When the 117th Congress convened on January 20, 2021, bills to remove the timeline —S.J. Res 1 and H.J. Res 17 — were introduced by Senators Lisa Murkowski (R-AK) and Ben Cardin (D-MD) as well as Rep. Jackie Speier (D-CA) and Rep. Tom Reed (R-NY). The House Resolution had 195 co-sponsors on the day it was introduced.

The ‘Begin Anew’ Strategy for the Equal Rights Amendment

In 2020, the 116th Congress introduced a bill to – as the name suggests – start the ERA ratification process over again. Both the House and the Senate would need to pass the Equal Rights Amendment, then it would be sent back to the states where at least 38 states would need to ratify it — again.

So much has changed since the ERA was first drafted in 1923. It is reasonable to ask whether the Equal Rights Amendment is still legally relevant or necessary in 2021.

But while much has changed for women in the workplace, too much stays the same. Women have yet to achieve equal pay for equal work, and many protections from discrimination are not available to women litigants. In Part II of this series, we will explore the legal and social impact of the ERA in 2021 and beyond.

About the Author

Cynthia Gentile is an Associate Professor of Management at American Public University. She holds a Juris Doctor from Rutgers University School of Law and is licensed to practice law in Pennsylvania and New Jersey. She teaches courses in human resources, management ethics, and employment law for American Public University and West Chester University of Pennsylvania.

When she is not teaching, Professor Gentile is a dedicated advocate for equality and sits on the board of the Alice Paul Institute’s Equal Rights Amendment Advocacy Committee. She is also a host on the Leading Forward podcast channel, with a dual focus on women business leaders and legal rights and responsibilities related to diversity, equality, and inclusion in the workplace.

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