Will the Supreme Court strike down the Equal Rights Amendment?

On this day 50 years ago, Congress approved the Equal Rights Amendment (ERA). Within one year, 30 states had ratified it, fueling hopes that the ERA would soon become the 28th Amendment to the U.S. Constitution. But a half-century later, the ERA is mired in legal uncertainty. The Supreme Court of the United States could ultimately strike it down as unconstitutional.

The ERA is short but important. It declares that “equality of rights under law shall not be denied or abridged by the United States or by any State on account of sex.” The ERA would give Congress the power to defend and promote sex equality, for instance, by fighting intrusive abortion restrictions, closing the gender pay gap and punishing unjust sex-based discrimination by federal, state and local government actors. 

It is no easy feat to amend the Constitution. It is so hard that it has occurred only 27 times in 235 years. America’s amendment labyrinth requires approval from two-thirds of both houses of Congress, followed by ratification by three-quarters of the states. That means 38 states.

When the ERA was approved in 1972, Congress gave the states seven years to ratify it. This seven-year deadline was not out of the blue. It had been the ratification deadline set for every amendment since the 20th Amendment in the 1930s.

As the ERA’s seven-year ratification deadline approached, state ratifications were stuck at 35. Supporters worried that states would not reach the magic number of 38 by 1979. They persuaded Congress to pass a resolution extending the ratification period for three more years through 1982. But by the end of this new deadline, the number of state ratifications remained stuck at 35 — not enough to make the ERA the 28th Amendment.

Activists conceded defeat. The ERA was dead and buried. But something remarkable has happened in the recent years: the ERA has risen again. 

In the 40 years since the expiration of the ratification deadline in 1982, three additional states have ratified the ERA: Nevada in 2017, Illinois in 2018 and Virginia in 2020.

Proponents now argue that the ERA has been duly ratified by the 38 states required for officialdom and that it should be properly recognized as a valid amendment to the Constitution. Opponents, on the other hand, argue that the original ratification deadline must stand and that the three post-1982 ratifications are legally invalid. Who is right? 

The Supreme Court may ultimately have to rule whether the ERA is now the 28th Amendment. There are many questions of constitutional law to resolve, and only the Court can resolve them authoritatively.

Does an amendment proposal ever expire? The text of the original Constitution is silent on how quickly states must ratify an amendment proposal. But what if Congress imposes a ratification deadline? Does that congressional action trump constitutional silence? And are states bound by the deadline? These are key questions today at the center of the battle over the ratification of the ERA.

A second set of questions concerns whether a state can revoke its earlier ratification. In the years since the ERA was proposed in 1972, a handful of states have revoked their prior ratification of the amendment. If these states can legally rescind their prior ratification, fewer than 38 states have validly ratified the ERA. The question for the Court, then, will be whether a state may ratify an amendment and then revoke that ratification before the amendment becomes official. The Constitution is silent on this point, too.

These questions will confront the Supreme Court with an extraordinary question: Can a constitutional amendment be unconstitutional? 

The Court could well choose to punt the ball, declining to hear the case because of the political question doctrine, which advises federal courts against hearing disputes that are best resolved in the political process. 

Yet the Court could alternatively hear the case and limit its final judgment to narrow procedural grounds about what amounts to proper or improper rescission and ratification of an amendment. 

The Court has never struck down an amendment to the U.S. Constitution. But the procedural irregularities surrounding the ERA could ultimately give the Court reason to do it for the first time.

Richard Albert, a constitutional law professor at the University of Texas at Austin, is author of “Constitutional Amendments: Making, Breaking, and Changing Constitutions” (Oxford University Press). Follow him on Twitter @richardalbert.