Today in 1972: Congress passes the Equal Rights Amendment

March 22, 2013

Today in Legal HistoryDoes the Constitution prohibit discrimination on the basis of sex?

It depends on who you ask.

According to Supreme Court Justice Antonin Scalia, “[i]t doesn’t.”

On the other hand, several Supreme Court rulings say otherwise: 1977’s Reed v. Reed first held that the Fourteenth Amendment’s Equal Protection Clause applied to disparate treatment on the basis of sex; 1976’s Craig v. Boren christened the “intermediate scrutiny” standard to use in such cases; and 1996’s U.S. v. Virginia further affirmed these holdings.

The disparity in views on this issue, though, illustrates an important point: whether the Constitution actually prohibits sexual discrimination is open to interpretation – because it does not do so explicitly.

This hasn’t been for a lack of trying.

Alice Paul, one of the principal leaders of the women’s suffrage movement, wrote a proposed constitutional amendment in 1923 that would have explicitly prohibited discrimination by state and federal governments on the basis of sex.

The amendment was introduced in Congress the same year, but failed to pass either house.  In every subsequent congressional session since, in some form or another, it was reintroduced.

Finally, on March 22, 1972 – almost 50 years after it was drafted – the Equal Rights Amendment (ERA) passed both houses of Congress and was sent to the states for ratification.

The final text of the amendment was simple:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

Despite the seemingly benign language of the ERA, opposition to the act was sufficient that it was never ratified by the requisite two-thirds (38) of the states.  Only 35 states voted to ratify the ERA.

Interestingly, all of these ratifications came within the first five years of Congress’ passage of the amendment.  What’s more, as time progressed further from the ERA’s passage, more and more states voted to rescind their ratification.

Although rescissions of ratifications are not recognized by the Constitution and are very likely not binding, it does demonstrate that, as the nation advanced into the late 1970s and early 1980s, there was a public shift away from the broad public support of women’s rights.

Again, with such innocuous language, why was there such opposition to the ERA?

Legally speaking, the most significant change that would have been effected by the ERA would have been increasing the standard under which the constitutionality of sexually discriminatory laws is evaluated by the courts.  Specifically, instead of the current “intermediate scrutiny” standard, laws that discriminate on the basis of sex would have to survive a “strict scrutiny” analysis.

Since strict scrutiny lives up to its name, very few (if any) sexually discriminating laws would survive a legal challenge.

Beyond this, however, we don’t really know for sure how the ERA would have impacted federal and state laws.

It is perhaps this element of uncertainty that has sparked so much opposition.  After all, an explicit constitutional guarantee of equality is quite sweeping, and it may affect legal areas outside of the strict male-female paradigm (i.e. sexual orientation).

Despite opposition to the ERA, its proponents nonetheless hope that passage is still likely in the near future.

Citing to the precedent of Twenty-Seventh Amendment, which was ratified 203 years after it passed Congress, ERA proponents claim that, should three more states ratify the amendment, Congress could take action to recognize the amendment as ratified.

The Supreme Court ruled in 1939’s Coleman v. Miller that ratification of constitutional amendments is a “political question” and that “ultimate authority [rests with] Congress in the exercise of its control over promulgation of the adoption of amendment.”

Thus, even though the deadline of the amendment lapsed in 1982, Congress could very likely declare the amendment ratified should three more states join the 35 that have already ratified it.

Of course, this has been the case for over 30 years, and yet, the ERA remains ungratified.

Will circumstances change in the next 30 years such that the ERA becomes a constitutional amendment?