In May, Illinois became the 37th state to ratify the Equal Rights Amendment. Yes, the Equal Rights Amendment, which Congress sent to the states for ratification in 1972, is still alive and kickin’. The ERA’s supporters maintain that only one more state is needed to fulfill the Article V requirement for ratification by three-fourths of the several States, but that’s far from clear.
The ERA has split the feminist movement. Some believe that the Constitution does not currently adequately protect women’s rights. Other feminists oppose the ERA, preferring to keep preferential treatment for women in such things as, alimony, affirmative action preferences for women, set-asides for women-owned businesses in government contracting, and Social Security widow’s benefits. Women’s groups even opposed a ‘mini-ERA’ for these reasons in California in the 1990s. This camp also does not want to see women become subject to the military draft. It should be noted that an Equal Rights Amendment was first proposed in 1921 and was opposed by the early Progressives and Eleanor Roosevelt because it would negate special protections for women in labor law regarding working conditions and hours.
Opponents of the ERA, meanwhile, argue that the Constitution already adequately protects women’s rights, citing the 14th Amendment equal protection clause and the fact that such constitutional rights as habeas corpus make no distinction between men and women in their application. Opponents also worry that the ERA, if adopted, could render every pro-life law on the books unconstitutional including parental consent for teen abortion and the Hyde Amendment which prohibits federal funding of abortion.
It’s not clear that ratification by a 38th state would put the ERA over the top, for several reasons. First, Congress set a deadline for the states to ratify the ERA and not enough states voted it up in the time allotted. Congress even extended the deadline and the ERA still fell short of the number of states required. Some argue that the failure to get enough states in the time periods prescribed is a fatal defect. In a 1921 case [Dillon v. Gloss], the Supreme Court upheld the constitutionality of a congressional time limit for ratification of a pending constitutional amendment. [Chemerinsky, Constitutional Law – Principles and Policies, 4th Ed. 2011, at p. 148]. The counter-argument is the fact that the 27th Amendment dealing with Congressional pay raises was first proposed in 1789 but not ratified until 1992.
Second, five states have voted to rescind their earlier ratifications of the ERA and it is disputed as to whether not these disavowals have any legal effect. The legality of the Congress’ extension of time and the ability of states to rescind went to the Supreme Court in a 1982 case [National Organization of Women v. Idaho], but the Court dismissed it as moot because the deadline had expired.
Third, there remains the issue that was litigated in the 1982 case where the lower court had found that Congress’ extension of time was unconstitutional because it was passed by majority vote, not two-thirds of both houses. [Chemerinsky, p. 149].
Things could get very messy if a 38th state ratifies the ERA. This could easily happen. The measure is actively being pushed in Florida, Virginia, North Carolina, and Arizona. If a 38th state ratifies, Congress would still have to declare the ERA part of the Constitution, but Congress could balk on the grounds that its two deadlines have already passed. If a court rules that states are not able to rescind their ratifications, other dormant proposed Constitutional amendments would come to life, including proposals having to do with D.C. voting rights, child labor, and titles of nobility.
One or more of these questions could end up in the Supreme Court which has dodged such questions half the time throughout our history by invoking the political questions doctrine which holds that such questions should be resolved by the political branches of government, not the courts. [See also Chemerinsky at p. 148]
The situation has the potential for high drama, so stay tuned. It may sound bad, but the country has been through worse. The 14th Amendment was deemed adopted even though it would have failed without counting the votes of the Southern states that were coerced into ratifying it on pain of being denied readmission to the Union and also the votes of two states that had rescinded their approval [id.] I guess nothing’s perfect in this world, not even the Rule of Law.