Looking back on the history of the ERA

By Aryana Goodarzi

Two years ago this last January, Virginia became the 38th state to ratify the Equal Rights Amendment. However, as Ellie Smeal said, had Congress given us the ERA in 1968, women wouldn’t have the power we have now. 

In 1923, the ERA was first brought to Congress by National Woman’s political party. Versions of the amendment were brought to the floor every session of Congress between 1923 and 1970. The official ERA reads, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

In February of 1970, women disrupted the U.S. Senate Subcommittee hearings on Constitutional Amendments, demanding the ERA be brought in front of the full Congress. That June, the ERA finally left the House Judiciary Committee due to a discharge petition filed by Representative Martha Griffiths, and went before all of Congress. It won the requisite two-thirds vote from the U.S. House of Representatives in October 1971. 

50 years ago today, March 22, 1972, the Equal Rights Amendment was passed by the U.S. Senate and sent to the states for ratification. Hawaii was the first state to ratify, along with some 30 other states within a year. On January 27th, 2020, Virginia ratified the ERA, becoming the 38th state to ratify, and signifying the last step for federal ratification of the ERA within the U.S. Constitution. 

The Equal Rights Amendment gave states two years to go through their state statutes for any sexed or gendered wording–both de jure and de facto–such that it is in line with gender equality defined in the Equal Rights Amendment. Two years later, on January 27th, 2022, the ERA officially became law. However, despite politician’s declarations against the Equal Rights Amendment as unnecessary, and unconstitutional, because women are already equal, the misogynist politics that have since come after has only further confirmed the need for the ERA.

Because of this, on January 10th, the ERA Coalition, along with almost 50 other equality groups, filed an amicus brief in the D.C. Circuit Court of Appeals case brought by the Attorneys General of Nevada, Illinois, and Virginia to force Ferriero to publish the Equal Rights Amendment. An amicus brief is filed when it is thought that the information in the brief will be helpful to the court’s interpretation. 

On January 27th, 2022, President Biden had the Department of Justice analyze the Office of Legal Counsel opinion from Trump’s Administration. Although the DOJ did not overturn the OLC opinion, the DOJ said Congress and the courts have power over the time limit. On January 27th, 2022, House Democrats Jackie Speier and Chairwoman Carolyn Maloney also brought up a resolution in the House officializing the ERA to the Constitution.

On February 8th, 2022, Senators Mitt Romney (R-Utah), Ron Johnson (R-Wisconsin), and Rob Portman (R-Ohio) wrote a letter to the U.S. Archivist, seeking that he does not officialize the Equal Rights Amendment to the United States Constitution on the basis that doing so will set the precedent that the Constitution can be amended without taking the necessary steps.

Senators Romney, Johnson, and Portman have no basis in saying the ERA is not constitutional when every step has been taken. According to Article V of the Constitution, for the Equal Rights Amendment to be amended into the Constitution, it must get through both houses of Congress (done in March 1972), and it is necessary that 38 of the 50 states ratify it (done as of January 2020).

As soon as this is done, the amendment should become part of the Constitution. The time limit, which has no constitutional basis and is nowhere in the Equal Rights Amendment itself, means that the ratification by 38 states is still applicable. Anything else is a formality. 

Then, on Friday, February 11th, West Virginia voted to overturn their ratification of the Equal Rights Amendment. On Saturday, February 19th, the new Attorney General of Virginia pulled out of the appeal against the U.S. Archivist, making the Equal Rights Amendment the law. On Friday, March 4th, the Department of Justice filed a brief on behalf of the Archivist to the D.C. Circuit appeal.

On March 8th, 2022, Rep. Carolyn B. Maloney co-authored a bipartisan letter asking Senate Majority Leader Charles E. Schumer and Senate Minority Leader Mitch McConnell for a vote on the Senate floor on the Equal Rights Amendment (ERA) this month.

This is because on March 17th, 2021, the House passed resolution H.J. Res 17., introduced by Rep. Speier and Rep. Reed. However, the Senate version, S.J. Res. 1, has not yet been taken up by the Senate for a vote.

On Sunday, March 13th, when West Virginia’s legislative session ended at midnight, so did Senate Concurrent Resolution 44, which would have overturned West Virginia’s ERA ratification. 

Finally, throughout the United States, states are writing legislation declaring the constitutionality of the ERA, to ratify the ERA, or to pass a state-level ERA. State Legislative Research Units are being asked to go through their state statutes to make note of any sexed or gendered wording such that steps can be taken to ensure the applicability of the ERA.

North Carolina found that edits are necessary 45,000 out of 47,000 pages, Illinois’s is 1,872 pages, and Arizona’s is 652 pages. Lawyers are said to have not expected laws to be this gendered. The law itself literally says otherwise to politicians declaring women have equality under the 14th Amendment. Equality under the law cannot apply to women if women are not defined in the Constitution, which said laws apply to.

As Representative Carolyn Maloney said, “With women’s rights in the Constitution, we wouldn’t be dependent on who’s in Congress, who’s on the Supreme Court, or who’s in the White House.” Legislating rights, while helpful, its lack of constitutionality is also the basis from which said rights can also be taken away. 

When Carol Jenkins grandchildren went visited Monticello, Thomas Jefferson's largest plantation, she said to them:

"Tell Thomas Jefferson that your grandmother – your Black grandmother back in New York City – is working to fix the document that he helped write and that this country is founded on – and that we're almost there."

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