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The Proposed Equal Rights Amendment:
Contemporary Ratification Issues
Thomas H. Neale
Specialist in American National Government
May 9, 2013
Congressional Research Service
CRS Report for Congress
Prepared for Members and Committees of Congress
The Proposed Equal Rights Amendment: Contemporary Ratification Issues
The year 2012 marked the 30th anniversary of the expiration of the proposed Equal Rights
Amendment’s extended ratification deadline. Since that time, new analyses have emerged that bear on the question of whether the amendment proposed in 1972 remains constitutionally viable.
This report examines the legislative history of an Equal Rights Amendment (ERA) and both identifies and provides an analysis of contemporary factors that may bear on its present and future viability.
An Equal Rights Amendment was first introduced in Congress in 1923. After 49 years of effort by supporters, an amendment declaring that “equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex” was proposed by Congress for ratification by the states in 1972. This amendment will be referred to hereinafter as “the proposed Equal Rights Amendment,” or “the proposed ERA.” Article V of the Constitution requires that three-fourths of the states, 38 at present, must ratify an amendment before it becomes part of the Constitution. In addition to this requirement, Congress has added a seven-year ratification deadline to the 18th, 20th, and all subsequent amendments. In the proposed ERA, the deadline was included in the preamble to the authorizing resolution, rather than in the body of the amendment.
As originally proposed, the amendment would have expired in 1979 if not ratified by 38 states.
Although the proposed ERA was eventually approved by 35 states, controversy and opposition combined with other issues to bring the ratification process to a halt as the deadline approached.
In 1978, Congress voted to extend the deadline until June 30, 1982. Opponents claimed the extension violated the spirit, if not the letter of the amendment process, but supporters insisted the amendment needed more time for state consideration, and that the deadline, as noted previously, was placed not in the amendment, but in the preamble to the authorizing resolution.
Notwithstanding the action of Congress, no further states ratified the proposed Equal Rights Amendment during the extension period, and it was presumed to have expired in 1982. During the same period, the legislatures of five states passed resolutions rescinding their earlier ratifications, a process referred to as rescission. The Supreme Court had agreed to hear cases on the rescission question, but the proposed ERA expired before they could be heard, and the High Court dismissed the cases as moot.
In recent years, proponents of the proposed Equal Rights Amendment have asserted that Congress possesses both the authority to repeal the original ratification time limit and its 1978 extension of that limit, and to restart the clock on ratification at the current level of 35 states, without a time limit. Thus, they contend that only three additional state ratifications would be necessary at any time in the future for the proposed ERA to be adopted as an amendment to the Constitution. This has been referred to as the “three state” approach. Joint resolutions to repeal the deadline and reopen the ratification process were introduced in the Senate and House of Representatives during the 112th Congress. Although no action was taken beyond routine committee referral, new versions of these measures may be introduced in the 113th Congress.
In support of their arguments, ERA proponents claim that Article V of the Constitution gives Congress uniquely broad authority over the amendment process. They also point to Supreme Court decisions, Dillon v. Gloss and Coleman V. Miller, that they claim provide support for this assertion. In addition, they cite the example of the 27th Amendment, also known as the “Madison Amendment,” which was ratified in 1992, after having been pending for 203 years. This, they maintain, further supports their assertion that proposed amendments that do not include time
limits within the body of the amendment text itself, remain viable and eligible for ratification indefinitely.
Opponents of further extension may argue that attempting to revive the amendment would be politically divisive, and that providing the proposed ERA with a “third bite of the apple” would be contrary to the spirit and perhaps the letter of Article V and the intentions of Congress in setting the earlier limits. They would arguably reject the example of the 27th Amendment, which, unlike the proposed ERA, never had a ratification time limit. Further, they might claim that efforts to revive the proposed Equal Rights Amendment ignore the possibility that state ratifications may have expired with the proposed ERA in 1982, and that proponents of the amendment do not address the issue of state rescission, which has never been specifically addressed by any U.S. court, but only dismissed by the Supreme Court because the cases accepted on appeal had become moot.
The “fresh start approach” provides an alternative means to revive the Equal Rights Amendment.
It consists of starting over by introducing a new equal rights amendment, identical to, but distinct from the 1972 proposal. S.J. Res, 10, introduced by Senator Robert Menendez in the 113th Congress, falls into this category.
These are some of the issues that could come before Congress should legislation repealing the earlier deadlines assigned to the proposed Equal Rights Amendment be given active consideration in the future, or should Congress seek to accede to additional ratifications without consideration of the expired deadlines in the congressional resolutions.
Congressional Research Service The Proposed Equal Rights Amendment: Contemporary Ratification Issues Contents Introduction
An Equal Rights Amendment: Legislative and Ratification History
Five Decades of Effort: Building Support for an Equal Rights Amendment in Congress, 1923-1970
Congress Approves and Proposes the Equal Rights Amendment, 1970-1972
First Vote in the House, 91st Congress—1970
Passage and Proposal by Congress, 92nd Congress—1971-1972
Congress Sets a Seven-Year Ratification Deadline
Ratification Efforts in the States
Ratification Is Extended in 1978, but Expires in 1982
Rescission: A Legal Challenge to the Ratification Process
Renewed Legislative and Constitutional Proposals, 1982 to the Present
“Fresh Start” Proposals
112th and 113th Congresses: Proposed “Fresh Start” Amendments
112th and 113th Congresses: “Three-State” and Related Legislative Proposals................. 12 Contemporary Viability of the Equal Rights Amendment
Article V: Congressional Authority over the Amendment Process
The Madison Amendment (the 27th Amendment): A Dormant Proposal Revived and Ratified
Ratification of the Madison Amendment: A Model for the Proposed Equal Rights Amendment?
The Role of the Supreme Court Decisions in Dillon v. Gloss and Coleman v. Miller............. 20 Ancillary Issues
Origins of the Seven-Year Ratification Deadline
Congressional Promulgation of Amendments
The Proposed District of Columbia Voting Rights (Congressional Representation) Amendment—Congress Places a Ratification Deadline in the Body of the Amendment
Contacts Author Contact Information
Introduction In July 1923, at a conference held to commemorate the 75th anniversary of the historic Seneca Falls Convention, women’s suffrage leader and feminist Alice Paul announced her intention to develop and promote a new constitutional amendment. Originally named the Mott Amendment for Lucretia Mott, the prominent 19th century abolitionist, women’s rights activist, and social reformer, it was intended to guarantee equality under the law for men and women. It was proposed in the context of the 1920 ratification of the 19th Amendment, which established the right of women to vote: Paul, a prominent suffragist and member of the National Women’s Party, characterized the amendment as the next logical step for the women’s movement.1 The proposed “Mott Amendment” originally stated that “men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.” The proposed amendment was first introduced six months later, in December 1923, in the 68th Congress.
Nearly half a century passed before the Mott Amendment, later named the Paul Amendment, and ultimately modified to become the proposed Equal Rights Amendment (ERA), was approved by Congress and proposed to the states for ratification in 1972. In common with the 18th and 20th through 26th Amendments, the proposed ERA included a seven-year deadline for ratification; in this case the deadline was included in the proposing clause that preceded the text of the amendment. After considerable early progress in the states, ratifications slowed, and the process ultimately stalled at 35 states, three short of the 38 approvals (three-fourths of the states) required by the Constitution. As the 1979 deadline approached, however, ERA supporters capitalized on the fact that the seven-year time limit was incorporated in the amendment’s proposing clause (also known as the preamble to the joint resolution authorizing the amendment) rather than in the body of the amendment. Concluding that the amendment was not time-limited, Congress extended the ratification period by 38 months, through 1982. No further states added their approval during the extension, however, and the proposed ERA appeared to expire in 1982.
Since the proposed ERA’s extended ratification period expired in 1982, new analyses have emerged that have led ERA supporters to assert that the amendment remains viable, and that the period for its ratification could be extended indefinitely by congressional action.
This report examines the legislative history of the various proposals that ultimately emerged as the proposed Equal Rights Amendment and both identifies and provides an analysis of contemporary factors that may bear on its present and future viability.
An Equal Rights Amendment: Legislative and Ratification History Despite the efforts of women’s rights advocates in every Congress, nearly 50 years passed between the time when the Mott Amendment was first introduced in 1923 and approval of the proposed Equal Rights Amendment by Congress as submitted to the states in 1972.
“Alice Paul, Feminist, Suffragist, and Political Strategist,” The Alice Paul Institute, at http://www.alicepaul.org/ alicepaul.htm.
Five Decades of Effort: Building Support for an Equal Rights Amendment in Congress, 1923-1970 The first proposal for an equal rights amendment, drafted by Alice Paul, was introduced in the 68th Congress in 1923.2 In its original form, the text of the amendment read as follows:
Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.
Congress shall have power to enforce this article by appropriate legislation.3 Although Alice Paul characterized the then-Lucretia Mott Amendment as a logical and necessary next step in the campaign for women’s rights following the 19th Amendment, the proposal made little progress in Congress over the course of more than two decades. During the years following its first introduction, an equal rights amendment was the subject of hearings in either the House or Senate in almost every Congress. According to one study, the proposal was the subject of committee action, primarily hearings, on 32 occasions between 1923 and 1946, but it came to the floor for the first time, in the Senate, only in the latter year.4 During this period, however, the proposal continued to evolve. In 1943, for instance, the Senate Judiciary Committee reported a version of an equal rights amendment incorporating revised language that remained unchanged
Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
Congress and the several states shall have power, within their respective jurisdictions, to enforce this article by appropriate legislation.5 Throughout this period, amendment proponents faced opposition from traditionalists, organized labor, and some leaders of the women’s movement. According to one study of the amendment’s long pendency in Congress, “[t]he most persistent and most compelling trouble that crippled prospects for an ERA from its introduction in 1923 until a year after Congress initially passed it on to the states was opposition from most of organized labor during a period of ascending labor strength.”6 A principal objection raised by organized labor and women’s organizations that opposed the amendment was concern that the ERA might lead to the loss of protective legislation for women, particularly with respect to wages, hours, and working conditions.7 One historian
S.J.Res. 21, 68th Congress, 1st session, introduced on December 10, 1923, by Senator Charles Curtis of Kansas, and H.J. Res. 75, introduced on December 13 by Representative Daniel Read Anthony, also of Kansas. Representative Anthony was a nephew of women’s rights pioneer Susan B. Anthony.
Amelia Fry, “Alice Paul and the ERA,” in Joan Hoff Wilson, ed., Rights of Passage, The Past and Future of the ERA (Bloomington, IN: Indiana U. Press, 1986), pp. 13-16.
S.J. Res. 25, 78th Congress, introduced by Senator Guy Gillette of Iowa.
Gilbert Y. Steiner, Constitutional Inequality: The Political Fortunes of the Equal Rights Amendment (Washington, DC: Brookings Institution, 1985), p. 7.
Kathryn Kish Sklar, “Why Were Most Politically Active Women Opposed to the ERA in the 1920s?” in Rights of Passage, pp. 25-28. Opponents included the League of Women Voters and the General Federation of Women’s Clubs.
Steiner, Constitutional Inequality, pp. 7-10.