WASHINGTON – The House is expected to vote Thursday to remove the 1982 deadline for ratifying the Equal Rights Amendment women, a move that will be mostly symbolic as the Senate is not expected to follow suit and the ability of Congress to change the deadline has not been tested in the courts.
The vote comes weeks after Virginia became the 38th – and potentially pivotal – state to ratify the amendment.
But that came decades after the ratification deadline set by Congress when the amendment was coming close to passage in the 1970s.
“There should not be any time limit for doing the right thing,” House Majority Leader Steny Hoyer, D-Md., said Wednesday after calling the deadline arbitrary.
In addition to the legal uncertainty, however, the amendment also faces opposition from anti-abortion groups who believe it will lead to the removal of restrictions on abortion.
“ERA equals taxpayer-funded abortion-on-demand,” said Ed Martin, president of Phyllis Schlafly Eagles, a conservative group named after the late activist who fought against the ERA.
The resolution the Democratic-led House will vote on does have two Republican cosponsors. And in the Senate, Republicans Susan Collins of Maine and Lisa Murkowski of Alaska are backing a similar effort.
But Senate Majority Leader Mitch McConnell, R-Ky., was dismissive of the resolution when asked last week if he would allow it to come to the floor.
“I haven’t thought about that,” he said. “I am personally not a supporter, but I haven’t thought about it.”
If codified into the Constitution, the change would explicitly declare that women have equal rights under the law. Supporters say it’s a long-needed protection for women who continue to face discrimination in the workplace and struggle against domestic violence and sexual harassment.
“We are done being disparaged and demeaned by those who work daily to undermine the rights we have secured, including those who hold the highest office in the land,” said California Rep. Jackie Speier, the lead sponsor of the House resolution.
Speier said it’s no coincidence that the ratification efforts began anew in 2017 when women took to the streets in protests and then marched to the polls in the subsequent elections, including last year’s in Virginia that gave Democrats the votes to approve the ERA in the state legislature.
“From the Women’s March to the MeToo movement to the pink wave, our march continues today with the Equal Rights Amendment,” she said Wednesday.
Congress approved the ERA in 1972, including in it what the Congressional Research Service calls a “customary, but not constitutionally mandatory” seven-year deadline for ratification by three-fourths of the states. When the number of states fell three short of the required 38 by 1977, Congress extended the deadline to 1982. But no additional states acted by the new deadline.
In 2017, Nevada became the 36th state to ratify the amendment. Illinois followed in 2018. And, after coming within one vote of passage in the Virginia Legislature when it was under GOP control last year, the now Democratic-controlled legislature voted in January to approve it.
This is the first time that a proposed constitutional amendment was approved by the required number of states after a deadline under the premise that it could still be ratified.
The Justice Department’s Office of Legal Counsel said last month that the only way to ratify the amendment is to start the process over again.
“We conclude that Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the States,” the opinion states.
The Justice Department weighed in because Alabama, South Dakota and Louisiana filed a federal lawsuit to block the archivist of the United States from certifying ratification.
Besides Alabama and Louisiana, other states that have not ratified the amendment are: Arizona, Arkansas, Florida, Georgia, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, and Utah.
South Dakota, which is part of the legal challenge, ratified the amendment in 1973 and then voted to withdraw in 1979. Four other states – Nebraska, Tennessee, Idaho and Kentucky – also voted to withdraw in the 1970s. Whether the Constitution allows states to do that is another potential issue for the courts.
On a separate track from the resolution being voted on Thursday, House and Senate Democrats have also introduced legislation to start the ratification process over.
If approved, the Constitution would state that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”