Minimum Competence - Daily Legal News Podcast
Minimum Competence
MaxMin - The Equal Rights Amendment (ERA)
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MaxMin - The Equal Rights Amendment (ERA)
On 4/28/2023 Senate Republicans blocked a measure that would have allowed it to be added to the Constitution.

This week we’re looking at the Equal Rights Amendment (ERA), which just died in the Senate when, on Thursday, Senate Republicans blocked a measure that would have allowed it to be added to the Constitution. Senators voted 51 to 47 to invoke cloture on a motion to proceed, falling short of the 60 votes it needed. For those unaware, the way a motion to invoke cloture works is after cloture is invoked, the Senate automatically proceeds to consider the measure on which cloture was invoked. In other words “yeah, yeah, yeah, let’s put this to a vote.” 

Sens. Lisa Murkowski (Alaska) and Susan Collins (Maine) were the lone Republicans to vote with every Democrat. The Senate resolution would have removed the deadline so that the ERA could become the 28th Amendment. Understanding why the removal of the deadline is important requires a quick overview of the history of the ERA.

And so, from the top. 

The ERA is  a proposed amendment to the United States Constitution that seeks to guarantee equal rights for all citizens regardless of sex. The amendment was first introduced in Congress in 1923 and has been reintroduced in every session of Congress since then.

The idea of an amendment to guarantee equal rights for women was first proposed by suffragist Alice Paul in 1921. She drafted the first version of the ERA, which read, "Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction."

The ERA was introduced in Congress the following year, but it failed to gain traction. It wasn't until the women's rights movement gained momentum in the 1960s and 1970s, nearly a half-century later, that the ERA gained widespread support.

In 1972, the ERA was passed by Congress and sent to the states for ratification. The amendment stated, in relevant part:

"SEC. 1. Equality of rights under the law shall not be denied or abridged by the United States or by 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."

The ratification process required approval from three-fourths of the states, or 38 states. Within a year, 30 states had ratified the amendment, and it seemed poised to become part of the Constitution.

However, opposition to the ERA began to grow. Conservative groups, along with purpose-driven interest groups, argued that the amendment would erode traditional gender roles and family values. Some claimed that the ERA would lead to women being drafted into the military and losing their right to alimony and child support. Scare tactics and the usual “ah ah ah, be careful what you wish for” line of argumentation whenever notions of gender equality are discussed, in other words. 

These arguments resonated with many Americans, and the ERA quickly became a divisive issue. In 1978, Congress extended the deadline for ratification to 1982, but the amendment still fell short of the required 38 states. By the end of the deadline, only 35 states had ratified the ERA. Supporters of the amendment continued to push for ratification, but it remained in limbo for decades.

In recent years, there has been renewed interest in the ERA. In 2017, Nevada became the 36th state to ratify the amendment, and Illinois followed suit in 2018. By 2020, Virginia became the 38th state to ratify the ERA, but it obviously did so after the last 1982 deadline to ratify the amendment had long passed. Further muddying the issue, in the intervening years several states — including Nebraska, Tennessee, Idaho, Kentucky and South Dakota — attempted to remove their prior approval. 

Thus, opponents and even the Department of Justice have argued that the deadline for ratification has passed and that the ERA cannot be added to the Constitution. In 2020, a federal judge ruled that the deadline was indeed expired. Advocates for the ERA have continued pushing for it to be added to the Constitution through other means.

Two methods are available for proposing amendments to the Constitution, as outlined in Article V. Congress may propose amendments by passing a joint resolution with a two-thirds vote, which was what was attempted here. Alternatively, a convention may be called by Congress in response to applications from two-thirds of the state legislatures. 

That has never happened and is unlikely to happen any time soon. So the current state of play in 2023 in the United States is that an amendment to the constitution restricting equality of rights under the law from being abridged on the basis of sex is a political non-starter. 

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Minimum Competence - Daily Legal News Podcast

Minimum Competence

The idea is that this podcast can accompany you on your commute home and will render you minimally competent on the major legal news stories of the day. The transcript is available in the form of a newsletter at www.minimumcomp.com.

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