Actress Alyssa Milano standing behind the Fearless Girl statue, speaks in favour of the adoption of the Equal Rights Amendment (Image: AP/Mark Lennihan)

“Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

So reads the pending Equal Rights Amendment (ERA) to the Constitution of the United States. Sounds reasonable. Who could argue with that?

Plenty of people, as it happens. The struggle to affirm equal constitutional rights for men and women has been waged for nearly a century. First proposed in 1923, just three years after the 19th Amendment gave women the vote, passage of the ERA has been a pitched battle.

For its supporters, victory looms at last.

The US Constitution can be amended in four ways. The most common is via a motion carried by two-thirds of both houses of Congress, then ratified by three-fourths of the states. At present this requires 38 states to approve any change.

In 1972, Congress passed the ERA and sent it to the states. The bill had widespread support. Then-president Richard Nixon endorsed it. Congress set a seven-year deadline for ratification. 35 states did so by 1977, but then the effort stalled. 

Resistance to the amendment was spearheaded by Phyllis Schlafly, a reactionary activist and staunch foe of feminism, abortion and homosexuality. She founded a countermovement called STOP ERA to foment a public backlash. Deploying culture war tactics that have become commonplace in the conservative movement, she argued that the ERA would strip women of their privileges and destroy families. Her attacks helped galvanise opposition and provided cover for male legislators to bury the bill. 

Schlafly’s successful rearguard action was recently portrayed by Australia’s Cate Blanchett, appearing alongside Aussie co-star Rose Byrne, in the docudrama miniseries Mrs. America.

In 1978, Congress extended the deadline by three years. However, no further progress was made, and the amendment languished. It might have remained dead and buried but for a twist of fate.

In 1982, the same year the ERA purportedly lapsed, an undergraduate at the University of Texas at Austin named Gregory Watson submitted an essay arguing that a long dormant amendment from the original Bill of Rights package remained live, and could still be ratified. His teacher was unimpressed, and gave Wilson a C for his paper.

Irked by this snub, Watson set out to prove his point by embarking on a letter-writing campaign urging state legislatures to ratify the amendment. And they did! On May 7, 1992, 203 years after it was drafted, the 27th Amendment was ratified.

This outcome challenged the notion that arbitrary deadlines were applicable to the amendment process. ERA supporters took heart. Some 25 years later, after continued pressure and spurred by the election of Donald Trump, Nevada became the 36th state to ratify the ERA. Illinois followed in 2018, then Virginia on January 15, 2020. 

But it’s not a done deal yet. There are still several hurdles to overcome.

First, the deadline must be waived. This can be done by a simple act of Congress, and the House of Representatives has already approved a joint resolution to this effect. On March 17, 2021 the House voted 222-204 to lift the deadline as part of Women’s History Month. Only four Republicans voted in favour. The resolution awaits consideration in the Senate, where its fate is uncertain. Minority Leader Mitch McConnell has previously declared himself “not a supporter.” However, Lisa Murkowski and Susan Collins, the two most senior Republican female Senators, have both confirmed their support of the joint resolution. Other GOP colleagues may join them.

Opponents argue that Congress can’t undo the deadline, because it was part of the original basis for ratification. Their arguments are undermined by Congress’s previous extension of the deadline, which did not negate any prior ratifications. Moreover, the deadline was imposed as part of the preamble to the amendment, rather than included in the text that would appear in the Constitution, implying that a Congressional supermajority is not required to repeal it.

Second, five states — Idaho, Kentucky, Nebraska, South Dakota, and Tennessee — each rescinded their ratifications in later years, which objectors claim voids the validity of the ERA. These arguments don’t stand up. 

Article V of the Constitution grants final authority over ratification to Congress. When states previously tried to rescind their ratifications to nullify the 14th, 15th and 19th Amendments, Congress rejected these attempts. Ratification is a one-way ticket.

Third, in the week prior to Virginia’s consent to the ERA, the Department of Justice issued a legal opinion concluding that because the deadline had passed the amendment had lapsed, and that Congress could not undo this. This was a Hail Mary effort by Trump’s attorney-general William Barr to block the change. Adhering to this advice, Archivist of the United States David Ferriero has refused to certify the amendment. 

His refusal is now being litigated. But as Barr surely knows, the Executive branch has no say in the ratification process. In accordance with Article V, the Supreme Court has previously held that Congress shall confirm new amendments. Powers granted by the Constitution itself cannot be ruled unconstitutional by the courts. The Archivist must follow the direction of Congress.

What would the 28th Amendment achieve? Foremost, it would cement in the supreme law of the land that all men AND women are truly equal, and must be treated as such. Critics point to laws and regulations that they contend have eliminated the need for the ERA. But laws and regulations can be reversed or circumvented. The Equal Pay Act passed in 1963, yet the gender wage gap persists. The Violence Against Women Act became law in 1994, but was allowed to expire in 2019. The Voting Rights Act of 1965 has been gutted by the Supreme Court, leading directly to the current Republican assault on voting rights.

Equal treatment would not just advantage women. Men would also benefit. With a majority of households now being dual income, and the steady rise of stay-at-home dads, equal pay for women affects men too. Other matters such as family leave, support services, and draft obligations could apply equally. It would also extend protections for LGBTQ Americans. More fundamentally, everyone benefits when gender is removed as grounds for discrimination against basic human rights.

The Equal Rights Amendment is due to enter force on January 15, 2022, two years after Virginia’s ratification. In the nonstop Republican propaganda barrage, expect the noise level to ramp up as that date approaches. But with 78% of American voters in support, including majorities of both Democrats and Republicans, it appears the US Constitution may soon welcome its 28th Amendment.