LATELY, PROPONENTS of the Equal Rights Amendment have claimed that they only need three more states to ratify it, instead of 38 as the Constitution requires. In doing so, they’re asking for special treatment, not equal treatment.
In March 1972, Congress sent the ERA to the states. The measure had a seven-year limit, which had been requested by its proponents, for ratification.
The amendment, which read “Equality of rights under law shall not be denied or abridged … on account of sex,” was ratified by 30 states within 12 months. But, in the next six years, only five more states ratified it, because lawmakers learned that the ERA wasn’t just about securing equal pay for equal work or enshrining women in the Constitution.
In her 1971 testimony, U.S. Rep. Bella Abzug of New York and an advocate for women’s rights, said that the ERA would eliminate “all existing legal distinctions based on sex” and would reject “the assumption that sex is ever a reasonable legal classification.”
Thus, under the strict scrutiny of the courts, no law could ban abortion or prohibit the use of tax money to pay for abortion, because only women become pregnant. Tax exemptions for churches that have only male clergy would be illegal. Women could be drafted alongside men to fight in ground combat units. Women-only private facilities, as well as separate boys’ and girls’ sports teams at public schools, also would be banned. Prisons, hospital rooms and school dorms — as well as private schools — would not be allowed to have separate facilities based on sex.
Every effort to amend the ERA to allow common-sense sex-based distinctions failed. Radical ideology won.
In 1977, with the ERA still three states short of ratification, and with the March 1979 deadline looming, ERA proponents — including those who had fought for the original seven-year-limit — lobbied Congress to give states seven additional years to ratify it. This worried many of the same people who had argued for the amendment.
Eleanor Smeal, president of the National Organization of Women, said, “We believe the life of the Equal Rights Amendment is indeed in peril.”
Pro-ERA publications weighed in against the later deadline. The Washington Post said, “Extending the deadline is, in our view, a bad idea. It smacks of … expedient rules-changing.” The New York Times, the Chicago Sun-Times and other newspapers agreed that the longer deadline would be a manipulation of the process.
Yet, on Oct. 20, 1978, Congress, within the first deadline, extended the deadline for ratification to June 30, 1982 — and prohibited states from rescinding their approvals of it.
The extension was challenged. In the 1981 case Idaho v. Freeman, a federal court ruled that the time limit originally set for ratification was reasonable and that Congress couldn’t change it. (The U.S. Supreme Court later declined to hear an appeal of the ruling, ruling the issue moot because the ERA had failed to be ratified.)
Now, some proponents claim that, because the wording on the ERA’s seven-year limit is in the amendment’s preamble, Congress has the power to change it. But this question was decided decades ago — in the 1939 U.S. Supreme Court decision Coleman v. Miller, the court ruled that a time limit for ratification is valid whether it’s placed in the preamble or in the body of a resolution. Additionally, 24 states ratified the ERA with the wording on the seven-year limit included. How can those ratifications be valid today, nearly 40 years after the original deadline?
In 1994, when I was a member of the Virginia General Assembly, the office of Jim Gilmore, who was then Virginia’s attorney general, wrote to me: “Because the Equal Rights Amendment was not ratified within either the original or the extended time limit established by Congress for its ratification … any action by the General Assembly to ratify it now would be a nullity.”
By 1982, 35 states had ratified the ERA, and five had rescinded their ratifications. In 2017-18, two states — Illinois and Nevada — attempted to resurrect the amendment and ratified it.
Despite these recent political maneuvers, the Virginia General Assembly should acknowledge the facts and stop posturing on a dead ERA.
Also published at the pilotonline.com