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THE EQUAL RIGHTS AMENDMENT'S REVIVAL:
QUESTIONS FOR CONGRESS, THE COURTS AND
THE AMERICAN PEOPLE
JOHN F. KOWALe
On March 22, 1972, Congress approved the language of a proposed Equal
Rights Amendment.' The measure had the simple - and long sought - goal of
enshrining the principle of gender equality in our Constitution, giving Congress the
express power to enforce its provisions through legislation. To go into effect, the
ERA required the approval of 38 of the 50 state legislatures. Congress set a deadline
of seven years, which it later extended to ten. But despite strong early momentum,
the campaign faltered three states short of the goal.2 Complicating matters further,
five state legislatures voted to rescind their earlier support. In March 1982, ERA
proponents conceded defeat.
Now, after a long period of dormancy, the campaign to ratify the ERA has
sprung back to life. In March 2017, the Nevada legislature lent its approval.3 And in
May 2018, Illinois became the 37th state to ratify.4 Does this mean, as proponents
say, that we are just one state away from ratifying the Twenty-Eighth Amendment?
The answer hinges on two procedural questions with no settled answer. Also unclear
is who gets to decide: Congress, the courts, or the American people?
I. THE QUESTION OF THE LAPSED DEADLINE
Can states act now-47 years after Congress proposed the ERA and 37 years
after the prescribed time for action has passed-to ratify it? It remains unclear. The
Constitution does not require that constitutional amendments be ratified in a fixed
period of time. Congress first imposed a time limit in 1917 when it crafted the
Prohibition Amendment. Limiting the time for consideration was the brainchild of
straddling senators who wanted to appear supportive of the Prohibitionists' cause
while reducing the odds the amendment would actually pass. A leading supporter
of Prohibition, Senator William Borah of California, objected on the grounds that
John F. Kowal is Vice President for Programs at the Brennan Center for Justice at New York
University School of Law.
1 H.R.J. Res. 208, 92nd Cong. (1972). See also THOMAS H. NEALE, CONG. RESEARCH SERV., R42979,
The Proposed Equal Rights Amendment: Contemporary Ratification Issues 7 (2013).
2 JOHN R. VILE, ENCYCLOPEDIA OF CONSTITUTIONAL AMENDMENTS, PROPOSED AMENDMENTS, AND
AMENDING ISSUES, 1789 2002, 179-180 (3d ed. 2010); Chronology of the Equal Rights Amendment,
1923-1996, Nat'l Org. for Women (Jan. 2014), https://now.org/wp-
content/uploads/2014/01/Chronology-of-the-Equal-Rights-Amendment.pdf [https://perma.cc/5QDU-
PQC6].
3 David Montero, Thirty-five Years Past a Deadline Set by Congress, Nevada Ratifies the Equal Rights
Amendment, L.A. TIMES (Mar. 20, 2017, 6:55 PM), https://www.latimes.com/nation/la-na-nevada-era-
2017-story.html [https://perma.cc/7XK8-CE2T].
4 Matthew Haag, The Equal Rights Amendment Was Just Ratified by Illinois. Mhat Does That Afean?,
N.Y. TIMES (May 31, 2018), https://www.nytimes.com/2018/05/31/us/equal-rights-amendment-
illinois.html [https://perma.cc/4CCB-96SB].
5 See ALAN P. GRIMES, DEMOCRACY AND THE AMENDMENTS TO THE CONSTITUTION 87-88 (1978).
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