A New Beginning? Justice Ginsburg and the Equal Rights Amendment

Timed to honor Women’s History Monththe House voted last week to remove the time limit on the ratification of the Equal Rights Amendment (ERA). The ERAwhich would explicitly enshrine sex equality in the Constitutionwas proposed by Congress in 1972 and sent to the states for ratification within seven years.  A supermajority of the states – 35 of them – ratified the ERA by 1977but that was still three states short of the 38 needed to constitute the three-fourths of the states required under Article V of the Constitution.  Congress extended the deadline by another three yearsbut no additional states ratified the ERA until 2017decades afterwards. Three states – NevadaIllinoisand Virginiaratified the ERA from 2017 to 2020leading to litigation in courts and resolutions in Congress aiming to overcome the ratification deadlines.

The late Justice Ruth Bader Ginsburg was a lifelong proponent of the ERA.  While she litigated cases to persuade the Supreme Court to scrutinize sex discrimination under the Fourteenth Amendment through the 1970sshe developed a case for the ERA in her scholarly writings.  She argued that an explicit textual guarantee of sex equality in the Constitution was needed to give coherence and legitimacy to strong doctrinal development of the principle of gender equality. In the absence of a clear constitutional declaration of the equal citizenship stature of men and womencourts hesitated to develop the principle robustlyRBG wrote in 1979because judges were understandably uneasy about stepping into “the gray zone between interpretation and alteration of the Constitution.”

Even though the Supreme Court that she joined did in fact shape sex equality as a constitutional principle in United States v. Virginia in 1996Ginsburg continued to sayin public speechesthat the U.S. Constitution needed an ERA.  But her argument shifted: she emphasized its expressiverather than doctrinal significance.  Her granddaughters and all Americans needed reassurance from the text of their pocket constitutions that the equal citizenship stature of women was as foundational to our political and legal order as other human rightssuch as free speech.  After World War IIgender equality guarantees became a legitimating feature of every modern constitution.  In February 2020in a public interview at Georgetown, Justice Ginsburg said:

The Constitution’s Preamble says‘We the People . . . in Order to form a more perfect Union.’ The Union will be more perfect if we added this clarion statement to our fundamental instrument of government: Men and women are persons of equal-citizenship stature. . . . Why should the rest of the world have the equivalent of an ERA while the United States lags behind?

Howeverit was the opponents of the ERArather than its proponentswho quoted Justice Ginsburg in the House floor debates about the future of the ERA last week. In that 2020 Georgetown interviewwhen asked for her prognosis for the ERA after the late ratifications by three statesJustice Ginsburg had replied:

I would like to see a new beginning. I’d like it to start over. There’s too much controversy about a latecomer like Virginia ratifying long after the deadline passed. Plusa number of states have withdrawn their ratification. If you count a latecomer on the plus sidehow can you disregard states that said‘We’ve changed our minds’?

ERA opponents in the House quoted these words to argue that the only legal way to add the ERA to the Constitution now is to introduce it anewand that keeping the ERA alive by removing the deadline would be illegal.

This position misapprehends Justice Ginsburg’s impromptu preference for a “new beginning” as a legal ruling about what the constitution requires.  But Justice Ginsburg’s 1970s scholarship and congressional testimony as a law professor laid out reasoned arguments for why Congress had the constitutional power to change the ERA’s ratification deadline.  Although the situation in 2021 is differentin that Congress’s action would change the deadline retroactively by removing it rather than extending a deadline before it arrivedRBG’s careful reasoning about the legitimacy of the ERA deadline extension is as applicable to the current deadline removal effort.

RBG understood that Congress was the “director of the amendment process.” She described the ratification deadline as “a procedural fact of the amendment process.” Article V authorizes Congress to “propose” amendments and to designate the “mode of ratification.”  FurthermoreArticle I Section 8 empowers Congress to make all laws that are “necessary and proper” for executing its other constitutional powersincluding those under Article V. RBG arguedciting Coleman v. Millerthat it was proper for Congress to make the political judgment as to whether the public interest and relevant conditions warranted a change in the ratification time periodin much the same way that legislatures could decide to extend statutory statutes of limitations.  The ERA’s time limit was placed in the preamble to the proposed ERA and not in the constitutional text itself; it said that the amendment would be part of the constitution “when ratified” “within seven years” “by three-fourths of the several states” – leaving it unanswered as to whether it would be part of the Constitution if the states took longer than seven years.  Other ratification deadlinesfor instancethat for the Prohibition Amendmentwere placed in the constitutional text (and were therefore part of what the states ratified)and used language that explicitly expressed the intent that the amendment proposal expire if not ratified within seven years; Section 3 of the 18^th Amendment reads“This article shall be inoperative unless it shall have been ratified . . within seven years.”

There may be policy reasons to decide not to allow the ERA to continue to be ratified over forty years after the “when ratified” time limitbut such policy decisions are the province of Congressrather than the courts. This is consistent with the recent dismissal by a district court of the case brought by the three late-ratified states against the National Archivistseeking a declaration of the ERA’s validity. As the court dismissed the case for lack of standingand alternatively reasoned that the seven-year deadline imposed by Congress was legally effectiveit explicitly refrained from deciding the “difficult issue” as to whether Congress could extend or remove the deadline to validate the ERA’s resurrectionand the question of whether state efforts to rescind prior ratifications should be given effect.

As for rescissionsRBG testified that it was for Congress to decideonly after the thirty-eighth ratification occurredwhether to count any rescinding states as ratified states.  Indeedafter two states ratified and then rescinded their ratifications of the Fourteenth AmendmentCongress decided in 1868 to recognize that the Fourteenth Amendment was ratified. That step was necessarythough not sufficientto direct the nation on the long path to racial justice that is still being paved. Although she – and many other ERA proponents – can appreciate the cleaner path of a brand-new ERAher writings about the ERA and Article V clearly understood Congress to be the proper decisionmaker to resolve the controversy caused by lateness or rescission.  And that is precisely what the resolutions in Congress proposing to remove the deadline on ERA ratification seek to donow that 38 states have ratified the amendment.

For RBGCongress was not only in charge of the amendment process; it was also the primary implementer of the Equal Rights Amendment. In the inaugural issue of the Harvard Women’s Law Journalshe wrote:

With the Equal Rights Amendmentwe may expect Congress and the state legislatures to undertake in earnestsystematically and pervasivelythe law revision so long deferred. And in the event of legislative defaultthe courts will have an unassailable basis for applying the bedrock principle: All men and all women are created equal.

Section 2 of the ERA empowers Congress to enforce the amendmentand Section 3 delays the effective date of the ERA to two years after the date of ratificationso that Congress and state legislatures would comprehensively review and rewrite laws to ensure gender-equal rights. Courts would play a secondary rolestepping in when legislative action failed to guarantee equality. When Nevada ratified the ERA in 2017nearly four decades after the deadlineERA proponents quoted that paragraph from RBG’s article on the flooraffirming the importance of new laws advancing such policies as pregnant worker fairness and pay equity to the amendment’s meaning.

On March 17the ERA deadline removal bill reached the floor of the House along with the Violence Against Women Act reauthorization bill. That daythe Senate Judiciary Committee concurrently held hearings on the Equality Actwhich the House had recently passed.  The next daythe House Education and Labor Committee held hearings on the Pregnant Worker Fairness Act. In the 1971 words of Congresswoman Patsy Mink as she advocated for the ERA on the House floorthe ERA is “constitutional backing” for extensive legislation to eliminate situations that are discriminatory in effect. Such legislation will be critical to overcoming the devastating disproportionate economic effects of the Covid-19 pandemic on womenespecially working motherswho have left the work force in alarming numberslargely due to the new caregiving burdens created by the shutdown of schools and daycares.  If future legislation to counter the dynamics that push women into traditional gender roles is challenged on other constitutional groundsthe ERA could save such legislation. In this unprecedented female recessionan unprecedented revival of a constitutional amendment on gender equality may be appropriate.

Nonethelessthe questions Justice Ginsburg raised about late ratifications and rescissions point to an important consideration in approaching the novel resurgence of the ERA:  the process by which the constitution changes can shape the change that is achieved. Congress’s process for recognizing that the ERA has been ratified is an opportunity for a democratically elected national body to stimulate a new era of policymaking. The legislative process of hearings and floor debates can articulate the goals of the ERA that have endured since the 1970s and become most urgent in 2021. In this unprecedented gendered economic crisisa new way of forging a new beginning may be warranted.

Equal Rights Amendment (ERA), Equality and Liberty