WASHINGTON (CN) — The Equal Rights Amendment inched one step closer to becoming the 28th Amendment to the U.S. Constitution as the House voted 232-183 Thursday to remove a deadline standing in the way of ratification.
U.S. Representative Jennifer Wexton presided over the historic vote and her placement Thursday was significant: The Virginia congresswoman was elected in 2018 as part of the freshman Democrat class who flipped the full House to a Democrat majority and turned red strongholds in her state blue.
Virginia last month also became the latest state — and final one needed per the three-fourths threshold — to ratify the law commonly shortened to ERA.
“This was not simply symbolic,” Wexton said of Virginia’s passage of the amendment that ultimately catalyzed Thursday’s long-awaited vote. “Affirming equality in the Constitution will strengthen state and federal laws that protect women. … It must be a constitutional right for women, not just an inscription above the entrance to the Supreme Court.”
The Equal Rights Amendment consists of just two dozen words: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
Its supporters have been fighting for ratification since 1923 when suffragist Alice Paul first introduced the ERA to Congress. For 40 years the bill languished in committee before the first black woman elected to Congress, Shirley Chisholm, renewed fervor around it.
By 1970, the first woman elected to the House Committee on Ways and Means, Representative Marcia Griffiths, D-Mich., managed to kick the ERA out of its confinement in committee and force a full vote on the House floor — the same floor where Wexton and others presided Thursday.
For decades, however, the bill has remained in limbo thanks to a deadline included by the Senate when it approved the ERA in 1972, giving states just seven years to ratify or see the amendment killed. Virginia sealed the 38-state majority this year — incidentally, the same year that women’s suffrage reaches its 100th anniversary.
The passage of H.J. Res. 79 on Thursday removes the 1982 deadline that was established after the seven-year limit first ran out. With passage in the House successful, the next step toward codification into the Constitution is to secure S.J. Res. 6 in the Senate.
The Senate resolution already enjoys some bipartisan support from Republicans including Senators Lisa Murkowski of Alaska and Susan Collins of Maine, but whether the women will be able to whip the requisite votes for passage remains to be seen. There is no assistance expected from Senate Majority Leader Mitch McConnell who roundly dismissed the ERA during a press conference on Feb. 5.
Opponents to the amendment mostly take issue with the ratification deadline, arguing that because the majority of states needed to ratify failed to do so when the time limit first came up, Congress does not have the authority to backtrack and remove the expiration date now.
“House Democrats are trying to retroactively revive the failed Congress,” Representative Doug Collins, a Georgia Republican, said Thursday. “Congress doesn’t have the right to do it. It did not pass. It did not get approved. Now there is an end run to go around that.”
Each time this argument was presented at debate Thursday, Representative Jerry Nadler, a New York Democrat, would repeat the same refrain:
“If Congress can enact a resolution placing a time limit, it can enact a resolution removing a time limit,” the House Judiciary Committee chairman said.
The Department of Justice Office of Legal Counsel disagrees.
After Virginia ratified the amendment in January, the OLC issued a nonbinding opinion stating that the ratification process for the whole of the United States must be restarted because the 1982 deadline had already expired.
Following that office’s lead, the National Archives and Records Administration, an agency responsible for certifying amendments to the Constitution handed down by Congress, issued a statement saying it would not certify the amendment unless a court ordered it.
This in turn drove a lawsuit by three attorneys general representing Virginia, Nevada and Illinois.
Controversy surrounding the ERA also emanates from a December suit from a separate trio of states, Alabama, Louisiana and South Dakota, which argue that the expired deadline made the amendment moot.
Further complicating the process, Kentucky, Idaho, Nebraska, South Dakota and Tennessee have voted to rescind their ratification.
Republicans like Representative Debbie Lesko of Arizona pointed to this as one of the reasons to reject the amendment before providing another theory well-tread by ERA opponents.
Lesko said women’s equality is already protected under the 14th Amendment and that ratification of the ERA would give activists the means to unwind anti-abortion legislation.
The 14th Amendment is not as explicit as the ERA when it comes to preserving civil rights protections for women although historically civil rights groups like the ACLU have relied upon it to defend against discrimination. Notably, it was the 14th Amendment that protected the right of same sex couples to marry in Obergefell v. Hodges.
But by creating a clear-cut amendment like ERA, Speaker of the House Nancy Pelosi argued during an impassioned speech from the floor Thursday that it enshrines discrimination protection and makes it unequivocal.
Pelosi also sought to disabuse critics of the notion that the ERA is solely an end-run to promote abortion.
“What is that about? Women should not have the same status of equality as men? This has nothing to do with the abortion issue. That’s an excuse. It’s not a reason,” she said. “It has everything to do with respect for women. For your daughter, your sister, your wife, your mother. You’re saying by voting against this, your daughter, your sister, your mother, your spouse should not have equal protection under the law?”
Representative Carolyn Maloney said the glaring injustices that women still face today underscore the necessity to ratify ERA.
“We’ve seen it when judges don’t enforce equal pay for equal work,” the New York Democrat said. “We’ve seen it when Congress doesn’t have the authority to outlaw genital mutilation. We will persist until it is firmly guaranteed. We demand our equality be spelled out in the Constitution, and we spell it: E-R-A.”
Wisconsin Representative Jim Sensenbrenner opposed the resolution Thursday, saying it would unleash a Pandora’s box of litigation.
“Let’s not enrich lawyers,” said the Republican Sensenbrenner.
Equality Now human rights attorney Kate Kelly told Courthouse News the formula for making ERA law of the land is not that complicated.
“Article 5 of the Constitution leaves the ratification process up to Congress,” Kelly said. “Today’s vote eliminates a deadline Congress put in and thus Congress can remove it.”
The vote in the House prompted Kelly to think of at least one American foremother on Thursday.
“’As Susan B. Anthony said, ‘Failure is impossible.’ We will change the Constitution to make it more inclusive, full stop,” Kelly said. “The vote today in the House to eliminate the old and arbitrary deadline is a major step toward that goal. There never should have been any deadline on equality in the first place.”
The fight to ratify the ERA as the 28th Amendment could end up in the Supreme Court. If it does, the words of the late Justice Antonin Scalia may echo at oral arguments.
In 2010 Scalia was asked whether the 14th Amendment applied to sex discrimination.
“Clearly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t,” Scalia said. “Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures and they enact things called laws.”
Nearly a year later when Scalia made a rare appearance before the Senate Judiciary Committee, he was pressed to clarify his statement and told lawmakers: “The 14th Amendment says nothing about private discrimination, only discrimination by government.”
The resolution’s lead sponsor, California Representative Jackie Speier summarized the tension between lawmakers split on ERA with a pithy remark just ahead of the vote.
“You say, ‘just restart the process’ yet you are the same people who have already said you won’t vote for it,” the Democratic Speier said.
Relying on a “patchwork quilt of laws and precedents” just doesn’t cut it anymore, she argued.
Only five Republicans sided with Democrats on the resolution: Representatives John Curtis of Utah, Brian Fitzpatrick of Pennsylvania, Tom Reed of New York, Rodney Davis of Illinois and Jeff Van Drew of New Jersey, who was a Democrat up until recently.