Last week, the Illinois State Legislature ratified the Equal Rights Amendment, an addition to the U.S. Constitution that would provide protection from discrimination based on sex.
Julie Suk, who specializes in equality and anti-discrimination law as a professor at the Cardozo School of Law at Yeshiva University, says the deadline expired years ago, though.
“There was a deadline for ratification of the ERA originally when the amendment was adopted by Congress in 1972,” she says. “The deadline was set for seven years.”
Later, the deadline was extended to 1982. But the ERA was fiercely opposed by activists like Phyllis Schlafly – though the amendment was passed by Congress, it failed to be ratified by the minimum 38 states.
“Since the deadline has passed, some people have argued that any post-deadline ratifications would not be valid,” Suk says. “We have two states now that have ratified after the deadline – Nevada last year and Illinois last week. It’s important to note that the deadline was not part of the Equal Rights Amendment itself. It was just in the proposing legislation for the Equal Rights Amendment.”
Hoping to circumvent the ratification deadline, some ERA supporters are working on a strategy in Congress.
“Deadlines have been used since the prohibition amendment, but the deadline differently in the ERA was part of the proposing legislation,” she says. “So one theory is that as long as Congress removes the deadline by legislation – there is a bill in Congress right now that would remove that 1982 deadline – then that would obviously validate the two ratifications that occurred after 1982.”
Others are offering an argument that the deadline isn’t actually valid.
“Because it creates an additional barrier to amending the Constitution that’s not mentioned in Article V,” Suk says, “and such an additional barrier to constitutional change would itself not be authorized by the Constitution and not valid.”
If the deadline can be circumvented, the ERA still needs to be ratified by one more state before it could become part of the Constitution – and Suk says that could be Virginia, which already has an ERA in its state constitution.
Written by Jen Rice.