Pass the ERA if you like. It doesn't change anything

If you feel like you’re having a flashback to the 70s this week, you’re not alone. It might be because the Equal Rights Amendment is back in the news yet again. Why there’s been a renewed interest in this subject remains something of a mystery, but Time Magazine published a lengthy analysis over the weekend, complete with a history of the proposed amendment and how it might still be passed. Their analysis could use some work, however, and that becomes obvious just from reading the title: The U.S. Constitution Doesn’t Guarantee Equal Rights for Women. Here’s Why.

When American women won the right to vote — a milestone commemorated on Women’s Equality Day, which marks the anniversary of the Aug. 26, 1920 certification that the 19th Amendment had been ratified — it was just one part of an even larger fight for equality. From Mary Church Terrell’s endeavors to make sure African-American women were included in the fight for suffrage, to Margaret Sanger’s work to promote access to birth control, to Ruth Bader Ginsburg’s efforts to eliminate sex discrimination in the law, women before and after that day in 1920 have fought for wider rights.

And yet, the U.S. Constitution does not say that people are equal regardless of their sex.

That last sentence might be at least a little bit closer to the truth if it had said that the Constitution doesn’t specifically say that people are equal regardless of their sex. What it actually says, courtesy of the 14th Amendment is that all citizens, both natural-born and naturalized are equal in that no state shall pass any law abridging any of their rights.

So unless you don’t think women are human beings capable of qualifying for citizenship, we’ve already got that covered. But don’t let me dampen your enthusiasm. If people still want to pass the ERA the way it’s currently written, feel free.

But how would that happen? That’s the part where the Time article actually might be worth reading. First of all, there are 37 states that have ratified the amendment to date and only one more would be required to put it into effect… in theory. it was originally passed by Congress in 1972 with a deadline for getting the states on board set for 1979. That year they extended the deadline to 1982, but they were still stuck at 35 states.

Two more states, Nevada and Illinois, ratified the amendment in 2017 and 2018 respectively. But that was decades after the deadline, so does that even count? How do you get around the fact that the deadline is long since passed? It sounds like you might have to start over from scratch.

But Time quotes a legal expert (who conveniently enough works for the ERA Coalition) as saying that they might just be able to ignore the deadline. She lists a few reasons, starting with the fact that there nothing about the deadline in the language of the amendment itself. It’s true that four of the amendments passed since the original Bill of Rights had deadlines built into them and the rest did not. But they also didn’t exclude the possibility of Congress setting deadlines.

She then goes on to say that the Constitution doesn’t set any deadlines for the passage of amendments. This much is true, but it also doesn’t forbid having deadlines imposed. The original deadline was set (and extended) via joint resolutions of Congress. If their claim is that the deadline is unconstitutional by virtue of not being mentioned in the original document, why did nobody challenge it?

Her final point sounds like a bit more of a stretch. She notes that the Constitution says “one Congress can’t bind a future Congress.” Yes, but that doesn’t mean that a future Congress can simply ignore the work done by the previous ones or else we’d have to replay every law on the books every two years. At a minimum, it seems like they would need a new joint resolution invalidating the one from 1982.

So is it possible? I suppose it might be, but there would no doubt be legal challenges flowing like water and the courts might have to sort that mess out. But as I said above, if people really want to pass it, feel free. You won’t hear me objecting. But given the wording of the ERA, I fail to see how it changes anything unless you’re planning on reading all sorts of dangling penumbras into it. Oh, wait… I see. That’s exactly what you’re planning to do. (Emphasis added)

Advocates say that the amendment is held back by the sense among some people that it’s not necessary, but proponents argue that it could strengthen the legal basis for combating violence against women, pay inequality and maternity leave.

Meanwhile, some contemporary opponents argue the amendment could have more of an impact than they’d want, for example leading to the striking down of laws that restrict access to abortion.

I hope it doesn’t lead to bringing back prohibition, because I could use a stiff drink after reading all of that.