There is good news, bad news and great news on the Equal Rights Amendment, an amendment to the U.S. Constitution that prohibits sex discrimination.
The good news: The ERA is already our 28th Amendment.
Our Constitution sets forth a two-step amending process. First, proposal of an amendment by two-thirds of each house of Congress, which for the ERA happened in 1972. Second, ratification of the proposed amendment by three-fourths of the states, which is 38 states of 50. In 2020, following the 2018 ratification by Illinois, Virginia became the last necessary state to ratify the ERA. We supporters of the ERA did it.
The bad news: The White House has not yet recognized the ERA as our 28th Amendment. That step entails publication of the amendment by the U.S. archivist, as part of his ministerial duties.
The two excuses are based on legal questions. First, the supposed “deadline” of seven to 10 years for states to ratify the ERA; the ratification took 48 years, however. Second, there have been attempts by a few states to rescind their ratifications.
But the “deadline” is without basis in the Constitution, which neither imposes a deadline nor grants Congress authority to impose a deadline. To have an effect, any deadline would have to be within the text of an amendment, where it is approved by both Congress and the states. The so-called “ERA deadline” was only in an internal congressional resolution. The states didn’t vote on it; only Congress did so.
Further, the 27th Amendment took over 200 years to ratify. The purported ERA deadline is invalid, unenforceable and hypocritical.
As for states rescinding their ratification, such rescissions are without basis in the Constitution, which only counts ratifications. Throughout history and in our official records, there have never been subtractions of ratification based on states’ attempts to rescind. As political winds change, states cannot undo their ratification. Ratification is a one-way process that is irrevocable.
The failure of the Biden administration to recognize the amendment does not impact its legal validity, but it does have serious consequences. The Biden administration has neither published nor enforced the ERA. Congress has not passed laws to implement the ERA nor has it updated existing laws. The judiciary branch has ignored the amendment when rendering legal decisions. State and local governments have not updated their laws or justice systems to take the amendment into account. And we the people have not been informed that the ERA is in force.
This failure to uphold the ERA is an egregious violation of the Constitution, which requires officials to follow the law.
The great news: Illinois is taking action.
Illinois Attorney General Kwame Raoul sued to force publication of the ERA. In opposition, President Joe Biden’s Administration has fought publication. This is a case of states’ rights to have their constitutional ratifications honored vs. the power of the national government to infringe and blatantly disregard states’ rights. However, because the states’ right to relief must meet a very high standard of being “clear and indisputable,” on Feb. 28, an appeals court chose not to compel publication.
Our Illinois congressional delegation strongly supports the ERA. Rep. Danny Davis wears an ERA YES pin and Reps. Jan Schakowsky and Lauren Underwood are vocal advocates. Sen. Dick Durbin chaired a judiciary hearing on a bipartisan joint resolution, S.J.Res.4, which affirms that the ERA is our 28th Amendment. Lt. Gov. Juliana Stratton testified in favor.
While Senate action is unnecessary and procedurally unlikely, the majority’s message to affirm the amendment is thunderous. The question is whether senators will falsely assert an extra-constitutional power to impose a deadline on amendments — or whether they will respect the Constitution’s plain text and original intent.
In our Illinois statehouse, Rep. Jennifer Gong-Gershowitz has introduced HJR0020, affirming the ERA as our 28th Amendment.
Many Illinois organizations and individuals are also national leaders advocating for the amendment’s official recognition.
Thank you, Illinois, for leading the way on the ERA.
Michele H. Thorne is a Chicago attorney, legal scholar and ERA advocate.
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