The amendment fits on a single piece of paper and has a main clause with just 24 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.” The movement for its passage began with a proposal from the suffragist Alice Stokes Paul in 1923, and its current wording dates to 1943.
When the House and Senate each finally approved the ERA, in 1972, the resolution included a seven-year deadline for ratification by three-quarters of the states—a timeline that had been absent from the early amendments to the Constitution but had become standard for proposals in the 20th century. Congress ultimately extended the deadline to 1982, when the amendment was three states short of the threshold for ratification. But by then, the momentum for passage had long since faded.
Nevada became the 36th state—and the first in 42 years—to ratify the ERA in 2017, and Illinois followed a year later.
“This is a really unprecedented situation,” says Linda Coberly, an appellate lawyer who heads a legal task force for the ERA Coalition, a group pushing for the amendment’s adoption. Never before has a constitutional amendment been fully ratified after a congressionally imposed deadline has passed. The last amendment to be added governed salary raises for members of Congress and was ratified by the states in 1992, more than 200 years after Congress first approved it. But it did not have a deadline attached to it.
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The battle likely will move to Capitol Hill, where legislation to remove the ERA deadline altogether is pending in both the House and Senate. Buoyed by the Virginia elections, Democrats on the House Judiciary Committee are expected to consider a bill written by Representative Jackie Speier of California as soon as next week, according to people familiar with the committee’s plans.
A companion bill in the Senate has the support of Republican Senators Susan Collins of Maine and Lisa Murkowski of Alaska, but whether Senate Majority Leader Mitch McConnell will give it a vote is unclear. ERA advocates hope that the GOP’s imperative to win back the support of women voters in a crucial election year will prompt McConnell to act. The Republicans’ 53–47 majority is up for grabs in 2020, and one of their most vulnerable senators up for reelection is Collins. (A McConnell spokesman declined to comment.)
Regardless of whether Congress acts, a legal challenge is all but assured if Virginia ratifies the ERA early next year. Supporters of the amendment could contest the validity of the deadline itself, while opponents would challenge Congress’s ability to extend a deadline long after it has passed.
Credit for defeating the ERA in the 1970s has largely gone to Phyllis Schlafly, the conservative activist who rallied women against the amendment on the grounds that men and women were fundamentally different and that its ratification would threaten gender-specific protections that were long baked into the law, such as exemption from military service. Schlafly died in 2016, but her daughter Anne Cori has picked up her cause.