Policy Analysis | September 2019

The Equal Rights Amendment to the U.S. Constitution: A Historic Perspective

Nick Bowman

The Equal Rights Amendment (ERA), a proposed amendment to the U.S. Constitution, would guarantee equal rights to all Americans regardless of sex. The amendment was written by Alice Paul of New Jersey and Crystal Eastman of Massachusetts and introduced at the Woman’s Rights Convention in 1923, two years after ratification of the 19th amendment, providing women the right to vote. The ERA passed the U.S. House of Representatives on October 12, 1971, and the U.S. Senate on March 22, 1972.

Article V of the U.S. Constitution states that “the Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof.” With 50 states in the Union, the Constitution is amended when 38 states ratify an amendment.

The text of the ERA reads:
“Section 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.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.”

In the introduction to the amendment, Congress set a ratification deadline of March 22, 1979, seven years after passing the Senate. (The 18th Amendment also included a seven-year ratification deadline, but most previous amendments did not include one.) In 1978, when it appeared that the ERA may not be ratified by the necessary 38 states by the deadline, the Congress passed a resolution extending the deadline to June 30, 1982. Opponents of the ERA stated that the extension was not legal. However, no states ratified the amendment between the March 22, 1979 deadline and June 30, 1982 extension deadline, rendering the point moot.

By the original deadline of March 22, 1979, only 35 states had ratified the ERA. In subsequent years, legislators and legal scholars have debated the legality of the deadline, as the deadline appears in the proposing clause, an introduction to or summary of a piece of legislation, but not in the text of the amendment. If additional states were to pass the ERA, the legitimacy of the proposing clause would come under legal scrutiny. Additionally, five states—Idaho, Kentucky, Nebraska, South Dakota and Tennessee— claim to have rescinded their ratification through a vote by the state legislature. Notably, the U.S. Constitution provides no process to rescind an amendment.

On March 22, 2017, Nevada ratified the ERA; followed by Illinois’s ratification on May 30, 2018, reigniting the debate on the ERA. If the rescissions are not considered legal, then 37 states have ratified the ERA. However, if another state were to ratify the ERA, it would likely set off a legal battle over and the constitutionality of the 1979 deadline and five state rescissions.

After the Virginia Senate voted to ratify the ERA on January 15, 2019, Virginia appeared poised to become the 38th state to ratify. But that bid stalled after a House subcommittee on privileges and elections voted against advancing the amendment out of committee.

Ratification of the Equal Rights Amendment in the South

State

Ratification status

Date of ratification

Alabama

Not ratified

n/a

Arkansas

Ratified

n/a

Florida

Not ratified

n/a

Georgia

Not ratified

n/a

Kentucky

Ratified

June 27, 1972

Louisiana

Not ratified

n/a

Mississippi

Not ratified

n/a

Missouri

Not ratified

n/a

North Carolina

Not ratified

n/a

Oklahoma

Not ratified

n/a

South Carolina

Not ratified

n/a

Tennessee

Ratified

April 4, 1972

Texas

Ratified

March 30, 1972

Virginia

Not ratified

n/a

West Virginia

Ratified

April 22, 1972

Sources/Further Reading

Ed Kilgore, “Virginia Could Soon Place the Equal Rights Amendment in the U.S. Constitution,” New York Magazine, January 15, 2019, http://nymag.com/intelligencer/2019/01/virginia-may-complete-ratification-of-equal-rights-amendment.html, accessed February 14, 2019.

“ERA History,” Alice Paul Institute, https://www.equalrightsamendment.org/history, accessed February 13, 2019.

Laura Vozzella, “Virginia Senate passes federal Equal Rights Amendment,” The Washington Post, January 15, 2019, https://www.washingtonpost.com/local/virginia-politics/virginia-senate-passes-federal-equal-rights-amendment/2019/01/15/9836d4fe-18f5-11e9-88fe-f9f77a3bcb6c_story.html?utm_term=.3ef6247b6bdf, accessed February 15, 2019.

Max Smith, “Virginia House kills Equal Rights Amendment vote for 2019,” WTOP, January 22, 2019, https://wtop.com/virginia/2019/01/va-wont-ratify-era-this-year/, accessed February 15, 2019.

Michael Pope, “Virginia Becomes Battleground Over Equal Rights Amendment,” WVTF, September 10, 2018, https://www.wvtf.org/post/virginia-becomes-battleground-over-equal-rights-amendment#stream/0, accessed February 15, 2019.

“Ratification Info, State by State,” Alice Paul Institute, https://www.equalrightsamendment.org/era-ratification-map, accessed February 13, 2019.