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February 13, 2023

There’s Only One Way to Add an Equal Rights Amendment to the Constitution

Some members of Congress, including Rep. Ayanna Pressley, contend the Equal Rights Amendment can be belatedly ratified by passing a joint resolution to retroactively cancel the ratification deadline.

It was a running joke in the early days of NBC’s “Saturday Night Live.” Chevy Chase, the news anchor for “Weekend Update,” would announce the night’s top story: “Generalissimo Francisco Franco is still dead.”

Like the late Spanish autocrat, the Equal Rights Amendment is also still dead. Approved by Congress in 1972, it was sent to the states with a seven-year ratification deadline, only to die when the clock ran out in 1979. Just 35 of the required 38 state legislatures had ratified the amendment, so it never became part of the Constitution. Yet some members of Congress now insist that the ERA didn’t fail and actually was ratified. Or, to be precise, that it will have been ratified “to all intents and purposes” if Congress simply adopts a joint resolution retroactively cancelling the ERA’s deadline.

Like Chevy Chase, they make their pronouncement with a straight face. Unlike him, they’re not funny.

Their claim is self-evident nonsense. Congress cannot undo the results of an amendment ratification process any more than it can undo the results of a presidential election. Yet at a recent Capitol Hill press conference, a bipartisan group of lawmakers led by Representative Ayanna Pressley of Massachusetts and Senator Ben Cardin of Maryland put on a show of amendment denialism that was as divorced from reality as the 2020 election denialism of former president Donald Trump.

On what basis can anyone insist that the ERA never expired? Pressley, Cardin, and the others make much of the fact that three additional state legislatures — in Nevada, Illinois, and Virginia — did eventually vote to ratify the amendment, purportedly bringing the total to the required 38. They did so, respectively, in 2017, 2018, and 2020. That was four decades after the ratification cutoff date established by Congress had come and gone. No matter, the amendment deniers say. That was merely an “arbitrary deadline” and should not be considered binding. It’s a ludicrous argument, as preposterous as the claims by some Trump lawyers that he could be “reinstated” as president.

It should be noted that five of the state legislatures that ratified the ERA had a change of heart and voted — within the original seven-year window — to rescind their approval. Yet the same ERA advocates who maintain that any ratification, no matter how belated, is binding, are adamant that a state’s timely decision to withdraw its ratification is “a nullity” and that recissions “don’t count.”

Like the 2020 stolen-election conspiracy theories, the ERA-was-actually-ratified theory has been litigated in court and rejected as meritless.

“Congress set deadlines for ratifying the ERA that expired long ago,” ruled Judge Rudolph Contreras of the US District Court for the District of Columbia. “Plaintiffs’ ratifications came too late to count.” Any finding that the amendment should nevertheless be deemed ratified, he held, “would be absurd.” (The case is now on appeal.)

Perhaps the ERA’s proponents are merely striking a pose. Maybe, while realizing that the amendment is a dead letter, they find it politically useful to pretend otherwise. But if that’s not the case, they ought to quit playacting and heed the admonition of the late Supreme Court Justice Ruth Bader Ginsburg.

An iconic champion of women’s equality, Ginsburg was a lifelong backer of the ERA. She was also a sober jurist who would not pretend that an expired deadline could somehow, magically, be reopened. During an appearance at Georgetown Law School in 2020, Ginsburg said the only way forward for the amendment was to restart the process. “I would like to see a new beginning,” she told the Georgetown audience. “I’d like to start over.”

Ginsburg also acknowledged that the main benefit of an Equal Rights Amendment at this late date would be its symbolic value. As a matter of substance, an addition to the Constitution is no longer needed to guarantee legal equality of the sexes.

In 1972, when Congress approved the ERA, the Supreme Court had not yet clarified that the Equal Protection Clause of the 14th Amendment protects women from unfair sex discrimination. Things are different now. As far back as 1997, the legal scholar and journalist Jeffrey Rosen wrote that the Equal Rights Amendment had effectively been enacted “by judicial fiat,” thanks to Supreme Court decisions holding sex discrimination to be nearly as repugnant to the Constitution as racial discrimination. He quoted Ginsburg’s view that “there is no practical difference between what has evolved and the ERA.”

Another prominent legal thinker, University of Chicago Law School professor David Strauss, made the same observation in a 2001 Harvard Law Review article. The Equal Rights Amendment was never ratified, he wrote, yet “today it is difficult to identify any respect in which constitutional law is different from what it would have been if the ERA had been adopted. For the last quarter-century, the Supreme Court has acted as if the Constitution contains a provision forbidding discrimination on the basis of gender.”

In other words, there is a strong case to be made that the campaign to add an Equal Rights Amendment to the Constitution achieved its aims even without winning ratification. Symbolism aside, it is hard to see what would be gained by making the ERA the 28th addendum to the Constitution. But if Pressley, Cardin, and their colleagues are intent on enshrining the ERA in the nation’s supreme legal charter, their only option is to follow Ginsburg’s advice: “Start over.” The original ERA is as dead as Generalissimo Franco. Denialism won’t bring it back to life.

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