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| Kate Kelly |
The main section of the ERA is just 24 words: "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." Though it's succinct, it yields great power and potential to legalize equality in this country.
The ERA was first introduced in 1923, and the fight to get it into the Constitution has been carried on by many women lawyers who have continued the fight for over 100 years.[3]
In 2020, proponents of the amendment finally succeeded as Virginia became the final state needed to ratify the ERA. The ERA has thus met the incredibly high standard the framers set out in Article V to change the Constitution — approved by two-thirds of each house of Congress and ratified by three-quarters of the 50 states.[4]
But its standing as the 28th Amendment is somehow still in doubt due largely to procedural issues. Though arguments against the ERA have morphed over time, the practical result has been a series of roadblocks to cementing gender equality into the U.S. Constitution. Its legitimacy is still an open legal question today.
However, an important voice in the legal profession recently weighed in an unprecedented way. On Aug. 6, the American Bar Association passed Resolution 601, declaring that the ERA is the 28th Amendment to the U.S. Constitution and urging "all bar associations and the legal community as a whole to support implementation of the ERA."[5]
Over the years, the ABA has consistently expressed support for the ERA. It adopted pro-ERA resolutions in 1972, 1974 and 2016,[6] but this new resolution is the first passed since Virginia ratified the ERA. It's also the first ABA resolution to call for the ERA's immediate implementation.[7]
The ABA is the largest voluntary association of lawyers not only in America, but also in the world. It has now affirmed that the ERA has met the constitutional standard for ratification. The ABA resolution also addresses the two lingering procedural questions that have been used to prevent the ERA from being recognized as a legitimate part of the Constitution and implemented.
The primary procedural issue cited in the battle over the ERA is the seven-year time limit Congress placed in its preamble — not in the text of the amendment itself. The time limit was extended in 1978 by a simple majority vote, and moved from 1979 to 1982.[8] No additional states ratified in that time period.
When the extended time limit expired in 1982, the ERA was still three states short of ratification. However, the necessary remaining states ratified the ERA in 2017, 2018 and 2020 respectively — well after the preambulatory time limit in question had expired.
It is now the clear position of the ABA that this time limit is not determinative and should not keep the ERA out of the Constitution.[9]
The second outstanding procedural issue involves the five state legislatures that purported to rescind their prior ratifications of the ERA: Nebraska (1973), Tennessee (1974), Idaho (1977), Kentucky (1978) and South Dakota (1979). North Dakota[10] and West Virginia[11] have both attempted to rescind their ERA ratification in one house of their Legislatures in the past four years, so this has arisen as a contemporary issue as well.
However, Article V is silent on both time limits for ratification and the authority of states to withdraw prior ratifications.
Answers to these questions can be found in both the history of other amendments to the Constitution and the democratic structure of the Constitution, particularly Article V.
As explained by Michelle Kallen, the former solicitor general of Virginia, and attorney Morgan Maloney, "several states have attempted to rescind their ratifications of constitutional amendments including the Fourteenth, Fifteenth, and Nineteenth Amendments,"[12] but these attempted rescissions were never accepted, and those amendments are considered to be duly ratified parts of the constitution today.
And, as the Office of Legal Counsel put it in 1978 when Congress voted to extend the time limit on the ERA from 1979 to 1982, "ratification must be unconditional and irrevocable."
Procedural issues aside — why do we need the ERA? This isn't merely a psychic victory. Assuming we can prevail on the outstanding legal questions, it will make an actual difference in people's lives.
In September 1994, Christy Brzonkala began her freshman year at Virginia Tech.[13] During her first few weeks of classes, she said she was raped by two members of the varsity football team.[14] After the brutal assault, Brzonkala was unable to attend classes, overdosed on pills and withdrew from school due to severe emotional distress.[15]
She filed a complaint against the alleged perpetrators with the university. At a hearing conducted by the school, one of the accused, Antonio Morrison, "admitted having sexual contact with her despite the fact that she had twice told him 'no.'"[16]
Though the school did initially find "Morrison guilty of sexual assault and sentenced him to immediate suspension for two semesters," ultimately neither of the men ended up actually getting suspended.[17] Both were allowed to continue playing on the school's highly ranked football team.[18]
Brzonkala found herself without any recourse, but discovered that after years of tireless advocacy from survivors like her, Congress had recently passed the Violence Against Women Act.[19] She learned the law contained a provision creating a federal civil remedy for survivors of gender-based violence, even if no criminal charges had been filed against the perpetrator.
She filed a lawsuit against both her former classmates under VAWA.[20] When she filed the case, VAWA had been on the books for just a week.[21]
Providing a way for survivors to find justice in civil court was one of VAWA's express purposes. In fact, legislators at the time referred to the civil rights remedy as one of its most significant portions.[22] When the law was first proposed, the Senate presented ample evidence that women didn't have a sufficient legal remedy for rape and violence under existing state-level criminal or civil law.[23] At the time, 36 state attorneys general publicly supported the VAWA civil remedy.[24]
But in court, the lawyers for Brzonkala's perpetrators argued that that portion of VAWA was unconstitutional because Congress did not have the authority under the commerce clause or Section 5 of the 14th Amendment to justify the civil remedy.
Brzonkala's case, U.S. v. Morrison,[25]made its way to the U.S. Supreme Court.[26] In 2000, the justices ultimately agreed with the alleged perpetrators' argument.
The interstate commerce clause[27] gives Congress the power to regulate commerce and has been interpreted to cover a wide range of things, including combating racial discrimination.[28] However, the court in Morrison found that "[g]ender-motivated crimes of violence are not, in any sense of the phrase, economic activity."
Put plainly, despite heaps of evidence of the financial impact of gender-based violence, the court decided VAWA didn't have enough of an economic hook for Congress to use it to provide a meaningful remedy for survivors.
In considering Brzonkala's case, the Supreme Court justices also decided the civil remedy couldn't fit under the power of the 14th Amendment, declaring that there is no equal protection right to be free from gender-based violence.[29]
The court explained that the amendment isn't designed to protect people from "merely private conduct, however discriminatory or wrongful."[30] In the court's eyes, there was simply no constitutional avenue that Congress could use to help vindicate survivors in federal court.
The Constitution's silence on gender equality robbed Brzonkala of the legal justice she deserved. After 30 years of VAWA's other important protections, the question still remains: Do people have a constitutional right to be free from gender-based violence? The answer is, lamentably, no.
This highlights one concrete example of why we still need the ERA, and why attorneys and leaders in the profession, including those behind the ABA resolution, are still fighting for it.
If recognized, the ERA would enshrine gender equality into our nation's Constitution. This way, attorneys and judges could easily utilize congressionally created protections against sex discrimination, without any of the legal gymnastics Brzonkala's lawyers were forced to attempt.
Since Morrison was decided, the court has only become more conservative with six of nine current justices self-proclaimed originalists.[31] But, even originalists have to admit that Article V of the U.S. Constitution provides a way to edit our foundational document. Updating the Constitution is an original idea, dating back to the Constitution's ratification.
Once an amendment has been ratified, the archivist of the U.S. has a statutory duty to certify and publish it.[32] So now, all that stands between the U.S. and constitutionalized gender equality is a signature from the archivist. Once she's signed the document, it will be published in the Federal Register as a signal to the nation that it is an official part of the U.S. Constitution.
Another possibility that President Joe Biden has pointed to[33] is for Congress to pass a resolution reaffirming the ERA as the 28th Amendment and eliminating any doubt about the purported time limit.[34] This could be done by a simple majority vote.[35]
In the meantime, there are many things attorneys across the country can do to support implementation of the ERA.
Many state legislatures — like Hawai'i,[36] Illinois,[37] Maryland[38] and Minnesota[39] — have passed resolutions urging the president to publish the ERA as the 28th Amendment. Resolutions in additional states would help raise the profile and boost the ERA's legitimacy.
Local bar associations can also pass similar resolutions.[40] In 2022, the California Legislature adopted a resolution that tasked the California Law Revision Commission with studying state law to identify any deficiencies that prevent compliance with the federal ERA.[41]
There are also efforts currently underway in several states to pass state-level ERAs that need the support of the legal profession. For example, the ERA is on the ballot in New York next week as Proposition 1.[42]
Additionally, there are live efforts in several of the unratified states to still ratify the ERA and help bolster it against the rescission argument.[43]
Attorneys who are ERA advocates can also write op-eds or position papers for local outlets in support of finalizing the ERA.[44] At the same time, they should directly urge their federal representatives to join the Congressional Caucus for the ERA,[45] and champion it in their public-facing materials, websites and speeches.
It is essential that we finalize the ERA with haste. Once finalized, it will permanently place the words "sex" and "equality" directly in the U.S. Constitution. This will allow Congress to pass a whole new slate of previously unachievable laws that together could provide robust protection against violence, as well as tangible remedies for survivors.
Finalizing the ERA would help Congress return VAWA to its most powerful version, giving survivors a way to sue the people who violated them. Leaving survivors of sexual assault without legal recourse not only harms them — it also fails to deter abusers from continuing to assault women.
The reality is that when the framers of the Constitution drafted our founding documents, there were many people they didn't even consider endowing with rights. They certainly weren't thinking of women as part of "we the people." As a result, for over two centuries, our Constitution has excluded over 50% of the U.S. population.
Finalizing the ERA will help fix that foundational mistake, and give Congress the tools it needs to protect and help vindicate victims of sexual assault and others who experience discrimination on the basis of sex.
This is why the ABA has made its implementation a top priority and lent legitimacy to the 28th Amendment's enforceability. It matters.
Kate Kelly is senior director of the Women's Initiative at the Center for American Progress. She's the author of the book, "Ordinary Equality: The Fearless Women and Queer People Who Shaped the U.S. Constitution and the Equal Rights Amendment."
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.californialawreview.org/print/the-worlds-most-difficult-constitution-to-amend.
[2] https://equalitynow.org/era_explainer.
[3] Its author Alice Paul had three different law degrees. Representative Martha Wright Griffiths who was dubbed the "mother of the ERA" for her role in getting it through Congress in 1972 was also an attorney. ERA proponent Pauli Murray was credited by Ruth Bader Ginsburg in her brief in Reed v. Reed as the intellectual author of the theory that the 14th Amendment prohibited sex discrimination. Representative, attorney and famed orator Barbara Jordan was also an ERA advocate.
[4] https://www.americanprogress.org/article/what-comes-next-for-the-equal-rights-amendment/.
[5] https://www.americanbar.org/news/reporter_resources/annual-meeting-2024/house-of-delegates-resolutions/601/.
[6] https://www.americanbar.org/content/aba-cms-dotorg/en/news/reporter_resources/annual-meeting-2024/house-of-delegates-resolutions/601/.
[7] Several powerful female leaders within the legal profession have expressed support for the ABA's resolution, including Commission on Women in the Profession's chair Karol Corbin Walker, past ABA president Mary Smith, and longtime ERA advocate and Winston & Strawn partner Linda Coberly. Coberly spoke before the vote and said, say, "[The ERA] is an essential signal, symbol and conferral of rights to women and girls and everyone in the United States."
[8] https://thehill.com/opinion/civil-rights/3482787-if-there-was-ever-a-time-to-pave-the-way-for-the-equal-rights-amendment-its-now/.
[9] https://www.americanbar.org/content/dam/aba/directories/policy/annual-2024/601-annual-2024.pdf.
[10] https://apnews.com/general-news-2aee248b867d09f0758776a25b3ac620.
[11] https://www.newsandsentinel.com/news/local-news/2022/02/a-forgotten-era-west-virginia-senate-approves-resolution-to-rescind-state-equal-rights-amendment-ratification/.
[12] https://nmcdn.io/e186d21f8c7946a19faed23c3da2f0da/bec921723f6f43b1965ed273674fa252/files/Kallen--amp--Maloney_Original.pdf.
[13] https://supreme.justia.com/cases/federal/us/529/598/.
[14] https://msmagazine.com/2021/10/21/equal-rights-amendment-supreme-court-sexual-assault-era-violence-against-women-vawa-united-states-v-morrison-christy-brzonkala/.
[15] https://www.washingtonpost.com/archive/local/2000/05/20/no-winners-in-rape-lawsuit/13d5f845-fb16-4ccc-a22c-4d0e3461e0bc/.
[16] https://supreme.justia.com/cases/federal/us/529/598/.
[17] https://supreme.justia.com/cases/federal/us/529/598/.
[18] https://www.washingtonpost.com/archive/local/2000/05/20/no-winners-in-rape-lawsuit/13d5f845-fb16-4ccc-a22c-4d0e3461e0bc/.
[19] https://nnedv.org/content/violence-against-women-act/.
[20] https://www.ca4.uscourts.gov/opinions/Published/002437.P.pdf.
[21] https://www.wsj.com/articles/SB947195670975638364.
[22] https://www.c-span.org/video/?154583-1/gender-based-violence-brzonkala-v-morrison.
[23] https://msmagazine.com/2021/10/21/equal-rights-amendment-supreme-court-sexual-assault-era-violence-against-women-vawa-united-states-v-morrison-christy-brzonkala/.
[24] https://www.c-span.org/video/?154583-1/gender-based-violence-brzonkala-v-morrison.
[25] https://www.oyez.org/cases/1999/99-5.
[26] https://supreme.justia.com/cases/federal/us/529/598/.
[27] https://www.senate.gov/artandhistory/history/minute/Interstate_Commerce_Act_Is_Passed.htm#:~:text=On%20
February%204%2C%201887%2C%20both,%E2%80%9D%E2%80%94to%20regulating%20railroad%20rates.
[28] https://msmagazine.com/2024/03/20/equal-rights-14th-amendment/.
[29] https://msmagazine.com/2024/03/20/equal-rights-14th-amendment/.
[30] https://supreme.justia.com/cases/federal/us/529/598/.
[31] https://slate.com/news-and-politics/2024/05/throw-out-originalism-do-inclusive-constitutionalism.html.
[32] https://www.govinfo.gov/app/details/USCODE-2009-title1/USCODE-2009-title1-chap2-sec106b.
[33] https://www.whitehouse.gov/briefing-room/statements-releases/2023/08/26/statement-from-president-joe-biden-on-equal-rights-amendment-centennial/.
[34] https://www.congress.gov/bill/118th-congress/senate-joint-resolution/39.
[35] https://thehill.com/opinion/civil-rights/3482787-if-there-was-ever-a-time-to-pave-the-way-for-the-equal-rights-amendment-its-now/.
[36] https://www.billtrack50.com/billdetail/1598681.
[37] https://www.billtrack50.com/billdetail/1582806.
[38] https://www.billtrack50.com/billdetail/1685427.
[39] https://www.billtrack50.com/billdetail/1510258.
[40] https://www.nycbar.org/press-releases/city-bar-co-sponsored-resolution-supporting-implementation-of-the-equal-rights-amendment-adopted-by-the-american-bar-association-house-of-delegates/.
[41] http://www.clrc.ca.gov/pub/2024/MM24-06.pdf#:~:text=In%202022%2C%20the%20Legislature%20adopted%20a%20resolution,
authorizes%20and%20requests%20that%20the%20California%20Law.
[42] https://www.nyequalrights.org/.
[43] Georgia https://www.billtrack50.com/billdetail/1611304; Missouri https://www.billtrack50.com/billdetail/1658166; North Carolina https://www.billtrack50.com/billdetail/1593285; Utah https://www.billtrack50.com/billdetail/1681151.
[44] https://www.chicagotribune.com/2022/09/26/michele-thorne-the-biden-administration-offers-thoughts-and-prayers-on-the-era-can-it-do-more/.
[45] https://bush.house.gov/era.