A Gender Unequal United States? Delayed Ratification and Gaps in the Amendment Procedure

The United States Constitution does not expressly prohibit discrimination based on sex. A contested amendment that sought to fill this gap took almost half a century. The delay raises complex constitutional questions regarding the amendment procedure and provides useful lessons for constitutional drafters around the world – writes Erin C. Houlihan.

On 15 January 2020, Virginia became the 38th state to ratify the Equal Rights Amendment (ERA) to the Constitution of the United States. The ERA proposal was adopted by Congress in 1972; it would expressly prohibit discrimination based on sex and ensure equal rights for women and men. It would also give Congress the authority to enforce the provision with appropriate legislation. While the 38th state approval nominally triggers the addition of the amendment to the Constitution, the long delay between Congress’s adoption and Virginia’s approval – paired with the intervening expiration of two ratification deadlines and several state rescissions of prior ratification – has created controversies around the modern understanding of the amendment procedure in Article V of the US Constitution.

The ERA’s tortuous history

The US Constitution provides two pathways to constitutional amendment. First, Congress may propose an amendment through a joint resolution passed by two-thirds of both Houses. Alternatively, the legislatures of two-thirds of the several states may apply to Congress to call a Convention for proposing amendments. Either way, an amendment is adopted when ratified by three-fourths of the several states or by conventions in three-fourths thereof. All amendments to date (including the ERA) have followed the first path. Since 1959, 38 states must ratify for an amendment to be adopted. Article V is silent, however, with regard to other procedural issues – and therein lies the challenge for the ERA.

The ERA was first conceived in 1923 by Alice Paul and Crystal Eastman of the National Women’s Party. Their proposal sought to overturn thousands of discriminatory state laws through a single federal amendment, yet the bill made little progress during the first half of the twentieth century. This was in part because the women’s movement itself was deeply divided over the amendment in its proposed form. Some argued that differences between men and women needed to be legally salient, and that women should be afforded legal protection rather than legal equality. The protection approach had been crucial to the labour rights movement and particularly for women factory workers. By the 1960s, however, the Civil Rights Movement sparked widespread change in attitudes toward structural inequalities and the social, economic and legal status of women. Lobbying efforts were renewed and key provisions of the original ERA were resubmitted to Congress. The revised proposal was adopted in 1972 with more than 90% of members of both Houses voting in favour.

Despite this strong congressional support, ratification did not proceed smoothly. Under its 1972 proposing clause, the Senate set a seven-year window for state ratification, closing on 22 March 1979. By 1977, 35 states had ratified – three short of those needed to adopt.

In the meantime, opponents of abortion, same sex marriage, and the idea that gender identity may differ from biological sex increasingly came to see the ERA as a threat to conservative values. Long-term opposition campaigns were launched which succeeded in prompting five states – Idaho, Kentucky, Nebraska, South Dakota and Tennessee – to rescind their ratifications between 1973 and 1977.

In 1978, Congress extended the ratification window until 30 June 1982, but no additional states ratified before the revised timeline lapsed. Thirty-five years passed until Nevada became the 36th state to ratify in 2017, followed by Illinois in 2018 and Virginia in 2020.

Unresolved issues in the amendment process

In light of these belated ratifications, Congress, the states and the judiciary must contend with two constitutional questions around which there is limited precedent and much debate. The first focuses on whether or not Congress has legal standing to remove an amendment ratification deadline after its expiry. The second involves the implications under Article V of the rescission of prior ratification by the five states.

On the first question, judicial precedent has recognized that proposal and ratification are succeeding steps in a single endeavor and not unrelated acts; ratification must be sufficiently contemporaneous with proposal and Congress is within its authority to establish a ratification deadline. However, courts have not addressed Congress’s authority to extend or eliminate a deadline ex post facto. On the second question, a federal district court held in 1982 that State rescissions are indeed valid, but the decision was vacated on appeal because the issue had become moot.

The fate of the ERA thus depends on the resolution of these open constitutional questions. Following Virginia’s ratification, a flurry of lawsuits have been filed for and against the ERA’s adoption, with differing views as to the two main questions. All parties anticipate that the questions will eventually make their way to the Supreme Court.

Whatever the result, the byzantine experience of the ERA process will mark a new understanding of constitutional amendment rules and the respective roles of the courts, the legislature and the several states in establishing and adjudicating the procedures of constitutional amendment.

Constitutional Silence and the Role of the Courts

Congress has considered two approaches to address the procedural questions left unanswered by the permeable wording of Article V. One attempt, initiated in 2017, would restart the amendment process through proposed House and Senate resolutions on a ‘new’ ERA with no deadline for state ratification. The second approach, known as the ‘three-state strategy,’ would continue the original ratification process through proposed 2019 House and Senate resolutions that retrospectively remove the earlier deadline. The resolutions would provide that ‘notwithstanding any time limit… as agreed on March 22, 1972, the article of amendment proposed to the States… shall be valid to all intents and purposes as part of the Constitution whenever ratified by the legislatures of three-fourths of the several states.’ This would mean that the ERA would be adopted whenever a 38th state ratified. While these proposals have been debated, they remain in committee at time of writing.

Can Congress remove a ratification deadline after its expiry?

Courts and congressional researchers generally agree that Congress has the authority to establish a ratification deadline. This is rooted in Supreme Court holdings addressing past constitutional amendments. In Dillon v. Gloss (1921), a case involving ratification of the 18th Amendment, the Court held that ‘proposal and ratification are not treated as unrelated acts, but as succeeding steps in a single endeavor, the natural inference being that they are not widely separated in time’. The court considered Congress’s seven-year deadline to be both within the body’s constitutional purview and a ‘reasonable’ period.

In Coleman v. Miller (1939), the Court walked back its standing to assess whether a particular deadline is ‘reasonable’, noting that ‘the question of a reasonable time in many cases would involve… an appraisal of a great variety of relevant conditions, political, social and economic, which can hardly be said to be within the appropriate range of evidence receivable in a court of justice’. The Court thus determined that it is for Congress, not the courts, to determine when an amendment must fail as a result of an unreasonable lapse in time. Notably, at the time of Coleman, the longest ratification period for any amendment was just under four years. This brief window rooted contemporaneousness interpretations firmly in constitutional history.

In their current composition, the Senate and House are unlikely to agree to eliminate the earlier deadline or restart the ratification process.

Coleman, however, was decided prior to the adoption of the 27th (and most recent) Amendment on congressional pay limitations. That amendment proposal did not include a ratification deadline and had languished for 200 years between its approval by Congress in 1789 and its ratification by the states in 1992.

When considering an ERA deadline extension in 1978, the House Judiciary Committee asserted both Congress’s authority to do so and the reasonableness of the window itself. This view was supported by an unpublished opinion by Office of Legal Counsel (OLC) of the US Department of Justice which relied, in part, on Coleman and Dillon. From this perspective, proponents of the three-state strategy argue that, if Congress has standing to establish a deadline for ratification – and then to change that deadline – then the body must also have standing to remove a deadline.

In a January 2020 slip onion, the OLC disagreed with that position. The OLC asserted ‘that Congress ha[s] 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.’ This implies that while Congress may have the authority to establish a deadline, and to extend that deadline prior to expiration, the deadline cannot be retroactively eliminated after the window has closed.

In State of Idaho v. Freeman (1982), a federal district court went a step further. The court held that Congress’ timely 1978 extension was itself improper because the original 1979 deadline was an ‘integral element of the amendment proposal and thus cannot be altered once it had been sent to the several states.’ The case was later vacated and the court’s decision dismissed on appeal to the Supreme Court because, with the expiry of the 1982 deadline without a sufficient number of ratifying states, the question had become moot. This leaves open whether the Supreme Court would defer the issue to Congress as a political question, as implied in Coleman, or uphold a Freeman-like approach.

What are the implications of ratification rescissions?

The validity of rescissions is perhaps the thorniest issue concerning the status of the ERA. In the OLC opinion issued just weeks before Virginia’s ratification, advisors found it ‘unnecessary’ to consider the validity of State rescissions because the 38th ratification had not yet occurred. Notably, the OLC concluded in its unpublished 1977 opinion on the constitutionality of the ratification deadline extension that the Constitution does not permit rescissions and anyway that the question was moot with the expiration of the deadline.

Again, the Freeman court disagreed. In addition to addressing Congress’s standing to alter a deadline, Freeman also examined Idaho’s rescission of ERA ratification. The court found that while Article V does not contemplate a state’s authority to rescind a prior ratification, such an act is within the proper exercise of state authority because it is up to a State to determine whether there is a consensus among its people. Thus, according to the court, a rescission of prior ratification should be recognized because failure to do so would enable an amendment to become part of the Constitution without the unified consent of the state’s people.

While Freeman provides insight into how the judiciary may regard the impact of ERA rescissions, the case itself is not a precedent. As noted above, the case was vacated and the decision dismissed on appeal. Moreover, just as Freeman was vacated as moot upon the expiry of the 1982 deadline, the rescission question may also be moot today if the courts find that Congress can no longer adjust the ratification deadline under the three-state strategy. If the courts defer to Congress on the contemporaneousness issue, however, and Congress opts to extend or eliminate the deadline, then the fate of the ERA may indeed rest on the outcome of the rescission question.

What might the future hold?

At an event in Washington DC in February 2020, Justice Ruth Bader Ginsburg – arguably the most important and well known feminist jurist in US history – suggested that the 1982 deadline should indeed be binding. In addressing the impact of rescissions, she noted that both ratifiers and rescinders have arguments in their corner: ‘if you count a latecomer on the plus side, how can you disregard states that said ‘we’ve changed our minds?’’ Justice Ginsburg’s position on rescission and the symbolic weight of her comments, combined with the limited but illustrative judicial precedents on contemporaneousness in the amendment ratification process, do not bode well for the ERA’s adoption.

On a substantive level, the revitalized ERA debate will hopefully highlight the continuing pervasiveness of sex (and gender) discrimination within the United States and encourage Congress to recraft an approach to securing equal rights for women. Beyond this, it is crucial that the contested ERA process at last resolve procedural deficiencies under Article V on the constitutional amendment process that neither Congress or the Supreme Court have yet adequately overcome.  Whatever the outcome, the intricacies of the debate provide useful lessons for constitutional drafters around the world to anticipate and address issues of timing and lapse of amendment proposals.

Erin C. Houlihan is Programme Officer at the Constitution Building Programme of International IDEA.