Late last month, Illinois became the thirty-seventh state to ratify the Equal Rights Amendment, which would do what the Constitution currently does not: guarantee that women are equal to men. The ratification by the state’s House of Representatives, by a 72-45 vote, had symbolic resonance because Illinois was the home of Phyllis Schlafly, an anti-feminist activist who led a national campaign against in the ERA in the 1970s. But the vote was largely symbolic for another reason: It came 36 years too late.
A constitutional amendment, once it has been approved by two-thirds of the U.S. House and Senate, must be ratified by three-fourths of the states to become law—which, since Hawaii entered the union in 1959, amounts to 38 states. Alas, the ERA is not just one state short of passage because the deadline for state ratification was way back on June 30, 1982, by which time only 35 states had ratified it.
But the ERA isn’t just a relic of second-wave feminism. It’s still necessary today, as equality for women in the United States is not enshrined in the Constitution; it is merely a matter of legal interpretation. Some believe that the amendment may yet become law if a thirty-eighth state ratifies—the expired deadline notwithstanding.
The ERA, first introduced by suffragist Alice Paul in 1923, originally posited that “men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.” The amendment was reintroduced to Congress each year after that, until it passed in 1972. By that time, it had been rewritten to say, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
A slew of states were quick to ratify the amendment after it passed Congress in 1972, but the pace slowed down as right-wing groups mounted opposition campaigns. The ERA’s opponents argued that the amendment would be harmful to women, increase abortion rights, and open the door to same-sex marriage. The amendment initially faced a 1979 ratification deadline, which Congress later extended to 1982; only 35 states had ratified the ERA before the new deadline was up.
The ERA ratification effort picked back up again in the 1990s, when the Twenty-Seventh Amendment was passed after a 203-year ratification period. Advocates argued that the 1982 deadline was not constitutionally mandated and could easily be removed by Congress, and they developed a strategy to get three more states to ratify the ERA. Nevada ratified last year, and now Illinois. Carol Robles-Román, co-president and CEO of the ERA Coalition, believes North Carolina and Virginia are the most likely to become number 38.
There are, of course, some obstacles in the way. Besides the question of the expired deadline, there’s the fact that five of the 37 states rescinded their ratification: Nebraska, Tennessee, Idaho, Kentucky, and South Dakota. Still, even if the three-state strategy fails, it’s possible to start the process anew. Representative Carolyn Maloney and Senator Robert Menendez, both Democrats, have introduced bills in Congress to add the ERA to the Constitution. Maloney has re-introduced the Equal Rights Amendment eleven times since she was first elected in 1992. In that time, there has not been one formal congressional hearing on the amendment.
In the early 2000s, legal scholars began to argue that since the ERA’s defeat, the Supreme Court’s interpretations of the Fourteenth Amendment—which guarantees all citizens “equal protection of the laws”—had created a “de facto ERA.” If the court had interpreted the Constitution’s Equal Protection Clause to prohibit discrimination based on sex or gender, and the logic went, then the ERA wasn’t needed anymore.
But the ERA would expand legal protections for women. The Supreme Court has ruled on several occasions that the Equal Protection Clause applies to sex discrimination, but at a lower level of scrutiny than other forms of discrimination. The court’s 1976 ruling in Craig v. Boren created the category of “intermediate” scrutiny, which is applied to sex- and gender-based claims. Essentially, this means the government needs a less convincing reason to enact a law that discriminates based on sex than it does to enact one that discriminates based on race, religion, or national origin.
Right now, women who are sexually assaulted or harassed have civil legal recourse in two areas: employment and education. “If we’re sexually assaulted, if it isn’t within the scope of Title VII as it understands an employment relation, or Title IX in education, we don’t have any equality rights,” said Catharine A. MacKinnon, a law professor at the University of Michigan and a pioneer in the field of sexual harassment and sex discrimination law.
That could change under the ERA. “The Equal Rights Amendment makes possible and makes constitutional laws we don’t have now,” MacKinnon said. In 2000, the Supreme Court in U.S. v. Morrison struck down the federal civil remedy portion of the Violence Against Women Act, holding that Congress lacked the power to create it under the Fourteenth Amendment. With an ERA in place, that law would have been on much better constitutional footing, according to MacKinnon. Title VII and Title IX are “islands of equality” in a “sea of inequality,” according to MacKinnon, who said an ERA would “empower Congress to notice that sea of inequality and expand those islands to continents.”
Until the early 1970s, the Fourteenth Amendment hadn’t been interpreted to prohibit discrimination based on sex. And some still don’t believe it provides such protection. “Certainly the Constitution does not require discrimination on the basis of sex,” Justice Antonin Scalia bluntly stated in 2011. “The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that.”
Scalia, who died in 2016, was effective in bringing his brand of textual originalism from the fringe to the mainstream of conservative jurisprudence. It’s not hard to imagine a few more Supreme Court justices of his ilk urging us to remember its original intent.
“A constitution constitutes a society,” said MacKinnon. “It states its overarching values. And at this point, sex equality is only there by interpretation of the Equal Protection Clause in particular cases, not as a general principle, not as an overarching constituting norm, and it can be given or taken at any time.”
While it is true that lawyers have been able to demand pretty expansive protections for women in the courts, they’d be on much more solid footing with a clear constitutional mandate, rather than decades of muddled case law. Passing the amendment would also have tremendous symbolic value. Most European constitutions have been updated in the twentieth century to include equal protections for women, but the U.S. has not. Adding the ERA would send a huge cultural signal domestically and abroad.
“If you look at constitutions around the world, rewriting, amending, and recognizing what values have changed are vital to the health of any constitutional democracy,” said Julie Suk, who teaches antidiscrimination law at Cardozo Law. “That’s what I think we’ve missed out on.” She said the psychological and cultural benefit of passing the ERA might even be more important than the legal benefit. “If something that has symbolic importance changes the way that people function, [then] that changes more about how we live than what the law does,” said Suk. “Symbolic means that when people know our foundational document includes protections for women’s rights, they may behave differently.”
Most Americans believe the ERA already exists, that it’s ancient history. But if anything, the resurgence of the #MeToo movement, by spotlighting the continued second-class treatment of women in our society, shows us that the ERA is more important than ever. The political moment is ripe for it, as women are running for office in record numbers. As Robles-Román told me, “you don’t have to use a lot of words anymore” to convince people why the amendment is needed: “People understand what we’re saying, and what’s missing, and what needs to be done.”