Equal Rights Amendment, Left for Dead in 1982, Gets New Life in the #MeToo Era

Illinois became the 37th state to ratify the Equal Rights Amendment, reviving once again the effort to formally prohibit discrimination based on gender in the Constitution and putting it within a single state of the 38 needed to ratify a constitutional amendment.

But while advocates for women's equality have celebrated the move as putting them on the verge of a victory nearly a century in the making, it's not clear that, even if one more state were to vote to ratify the amendment, it would go into force.

The ERA, passed by Congress and sent to the states for ratification in 1972, would guarantee equal rights under the law and prohibit discrimination based on sex. First introduced in Congress in 1923, the ERA had a seven-year deadline for ratification written into it. And though federal lawmakers extended the deadline by three years, to 1982, the amendment stalled at 35 states, three short of the three-fifths, or 38, states needed.

Activists credit the election of Donald Trump, the #MeToo movement and the resultant wave of feminist anger for dislodging the amendment from its four-decade malaise, and on March 22, 2017, the 45th anniversary of its passage in Congress, Nevada became the 36th state to ratify the ERA.

"This is about the United States Constitution, people. And half the people in this country aren't in it," state Rep. Lou Lang, a Democrat who sponsored the Illinois legislation, told The Chicago Tribune, following the ratification in the state's House by a single vote last Wednesday. "They aren't included in the United States Constitution. Isn't that enough for you to realize the historic moment and step back from predispositions you've had and your heels dug in the ground on this issue and that issue and the other issue?"

Additional efforts this year have failed in several other state legislatures, including Virginia, where it was blocked by a state Senate panel in February; in Arizona, where Republicans resisted procedural efforts to bring the bill up on April 10 – Equal Pay Day; and in Florida, where a bill was introduced in January but was not brought for a vote.

In the 1970s, arguments against the amendment's ratification were predicated on the theory – pushed by conservative activist Phyllis Schlafly – that the ERA would harm housewives and force women to be drafted into the military.

Modern opposition, however, tends toward the procedural. Some opponents argue that enshrining equal protections for women in the Constitution is unnecessary, claiming that the 14th Amendment's Equal Protection Clause has already been applied to outlaw discrimination based on sex.

In fact, polls have found nearly all Americans believe that the Constitution explicitly prohibits discrimination based on sex. However, the Supreme Court has said the question is open to interpretation, and the late Justice Antonin Scalia said "it doesn't" prohibit sex-based discrimination.

Separately, opponents have pushed against recent state ratification efforts because the deadline for ratification that Congress set in 1972 has expired.

The validity of the original three-year extension, passed by simple majorities in Congress and signed into law by President Jimmy Carter, was questioned by those who said it failed to meet the standards set out in Article V of the Constitution, which stipulates that amendments be passed by a two-thirds supermajority.

But advocates say the ratification of the 27th Amendment in 1992 – after 202 years pending before state legislatures – suggests Congress could simply pass a new measure to declare the ERA valid if the requisite number of states were to eventually ratify it.

Although some have argued that the precedent set by the 27th Amendment doesn't apply because that amendment didn't originally have a deadline, a 2013 report produced by the Congressional Research Service concluded that Congress could pass a resolution declaring the post-1979 ratifications valid and the amendment in force.

In addition to Arizona, Florida and Virginia, the other states that have not ratified the ERA are Alabama, Arkansas, Georgia, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina and Utah.

Aside from any legal wrangling over the ERA, however, political experts say renewed attention could feed into the already energized women's political movement ahead of elections this November.

"The Illinois legislature's decision to approve the Equal Rights Amendment is incredibly significant for residents of the state and sends a powerful symbolic message to the entire nation," Alvin Tillery, the director of the Center for the Study of Diversity and Democracy at Northwestern University, says in an email.

"Because it would likely take flipping a Republican-controlled legislature and the U.S. Congress to actually have the ERA ratified, the Illinois legislature's actions potentially give national Democrats a talking point for the midterm elections," Tillery says. "If national Democrats can develop good messaging on this issue, that links to the current concerns raised by the #MeToo Movement, the promise of actually ratifying the ERA could further boost excitement among women voters this fall."