Push to Revive the Equal Rights Amendment

The names are one hundred and eighty three. The joint resolution is past. The sponsor of the bill, Representative Jackie Spear of California, said, there's no deadline for equality. Women want to be equal, and we want it in the Constitution. I am equal on this House floor with all of my male colleagues, but when I walk out, I have fewer rights and protections than them. I rise today because the women of America are done being second class citizens.

We are done being paid less for our work, done being violated with impunity, done being discriminated against for our pregnancies, Done being discriminated against simply because we are women. The e R A is about equality. My guest is Julie Sook, a professor of sociology and dean for the Master's Programs at the City University of New York. So Julie, explain

what the e r A would do. So, the e R A would add an amendment to the U s Constitution that guarantees equality of rights under the law without denial or abridgement on account of sex. And it's long been understood as an amendment that would grant equal citizenship status to women. So that's just fundamentally what it would actually do. And then there's this deeper question of what would it actually change about the law that we have now and the world that we inhabit, And I think

that's a deeper question. Virginia, you was the thirty eight and final state needed for ratifying the e r A, but it was a little late in doing that. So explain the situation. So the Equal Rights Amendment was actually adopted by Congress in nineteen seventy two. It was drafted and introduced for about fifty years before nineteen seventy two. But the Constitution says that both houses of Congress have

to adopt an amendment by a two thirds majority. In each House before it goes to the states for ratification, and so the Congress did not adopted until nineteen seventy two, and when it did that, it put a seven year deadline on ratification by the states. By the time you got to nineteen seventy seven, thirty five states had ratified, and currently you need thirty eight states in order to constitute the three fourths of the states that Article five

of the Constitution requires. So the problem was that by nineteen seventy seven, which was about five years in, there were only thirty five ratifications, and Congress got worried rightly that they would not get to thirty eight by the deadline.

So they extended the deadline once, and they extended it to two but the three ratifications that they were waiting for did not come in by night two, and so the e r A was long presumed dead after ninety two, but very interestingly, some states started ratifying it again in seventeen. Nevada ratified in seventeen, Illinois ratified in eighteen, and Virginia ratified it. So now we're at the magic number, which

is thirty eight. But there remains a legal and political question as to whether or not those three states that ratified after the deadline should be counted. There are dueling lawsuits by states. Let's start with the three states that passed the e r A in ten, eighteen, and nineteen

who are suing the national archivists. Virginia, Nevada, and Illinois are the three states that ratified in the twenty one century, and they are claiming in the lawsuit that the e r A should be recognized as part of the Constitution now. So they're suing the Archivist of the United States demanding that he add the e r A to the Constitution now on the theory that the deadline has no legal effect.

And so their legal theory is that because Article five does not mention any deadlines, the Equal Rights Amendment has met the requirements that are actually mentioned in the text of the Constitution at Article five, which is two thirds of Congress in each house and three fourths of the states ratifying. So that is the argument that is being put forth there. They noted that the last amendment to be added in took more than two years to be

ratified by thirty eight states. Yes, so that amendment was actually written by founding father James Madison himself, and it was proposed. It was adopted by both houses of Congress in seventeen eighty nine along with the original Bill of Rights, but they didn't get enough states to ratify it in the eighteenth or nineteenth centuries, and then there was a movement that began ratifications all over again in the nineteen eighties,

and they finally reached thirty eight ratifications in nineteen. The Justice Department's Office of Legal Council issued an opinion last month that told the National Archives it should not certify the e r A as they amendment tell us about

that opinion. That opinion says, the legal opinion taken by the Justice Department is that the e r A is no longer open to ratification because of the deadline that lapsed in two and therefore the three states that ratified after that deadline should not be counted as ratified states.

And therefore, if the e r A is going to be made into an amendment, Congress would have to go back to square one in passing it all over again by two thirds majority in both houses, and then you have to start the ratification process by the states all over again. So that is the Justice Department's position. It's a position with which, obviously to the three states that have ratified recently disagree, and that's the basis of their lawsuits.

To my mind, the one question that remains is whether or not Congress has the power to put deadlines in and also to extend deadlines or remove deadlines under the Constitution. And I believe that Congress actually does have the power to control the ratification process, and I think it's that power that may give Congress the power to impose deadlines that would also give Congress the ability to remove a deadline. You mentioned legal and political reasons. Is the Justice Department's

position more legal or political? Could a Justice Department under another president role differently, Yes, So I think whether it's legal or political, I believe that there are different reasonable positions that could be taken on this question, whether by a future Justice Department or even by a judge. So the Justice Department's position is that the deadline was valid and that it passed. And they've also taken the view that once a deadline passes, Congress is without power to

change the deadline after it has passed. And I think that's the question on which there is a lot of reasonable disagreement. That is, Congress actually extended the deadline once already. Of course, that deadline extension happened in before the deadline passed. So it's this question of timing, and I don't think that the Constitution or even some of the precedents about

deadlines on amendments offer a clear answer. Let's talk about the e r A itself and the arguments for and again, so what do advocates of the e r A say it will do. What are the implications of it? Well, I think the advocates fundamentally, I think it's important that a constitution recognize sex equality as a foundational principle in this nation's foundational document. I think that's the most important argument.

And it's a fact that most constitutions around the world, and every constitution written after World War Two has language in it that explicitly speaks to sex equality or equality between women and men. And so that's something that I think that's extremely important. And there are many different things that it might do legally. One thing that it will

do legally is prohibit discrimination on account of sex. Part of the disagreement as to whether that's really necessary in the U s Constitution, right now is that the fourteenth Amendment of the U. S Constitution, adopted after the Civil War, has an equal protection clause in it. It doesn't say anything about women or about gender or sex. But since the nineteen seventies, the Supreme Court has said that the

Fourteenth Amendment prohibits sex discrimination. Even if you take the view that it does that there seems to be no harm in adding an amendment that also mentioned sex. I agree with you on that. I don't think there's any harm to it, and in fact, I would argue that it's also necessary to do it. And here's why. For a long time, people tried to bring lawsuits before judges and that eventually went up to the Supreme Court that challenged sex discrimination, and the courts said, but the Fourteenth

Amendment did not prohibit sex discrimination in those cases. And they really just changed what they were doing in a huge way in the n seventies. And it wasn't the coincidence that the Supreme Court started recognizing sex discrimination as a constitutional problem at the very moment that the e r. A was gaining political traction in the House of Representatives.

Was after the House of Representatives voted by an overwhelming majority to adopt the r A, and we were waiting for the Senate to act, but at that moment, the Supreme Court decided Read versus Read, which is the first case that says that sex classifications in the law should be scrutinized under the equal protection class of the Fourteenth Amendment. So I think one of the things that the the r A would do that's very important is to recognize the work that the e r A has already done

to change the Constitution. And a lot of that work has been done by women as constitution makers. There were women in Congress who advocated fiercely for the Equal Rights Amendment against a lot of opposition, uh, and then there were women who advocated in those Supreme Court cases like Read versus Read to recognize sex discrimination as a principle

under the Fourteenth Amendment. And I think that work has gone kind of invisible and unrecognized in the text of our constitution, and the e r A is really needed to acknowledge the contributions of women as constitution makers and acknowledge the process by which sex equality has become an important constitutional value. So it will have symbolic value as

well as legal value. Right and I think it's important to say symbolic as well as legal, not merely symbolic, because a story that I've just told with recognizing things that have already happened, I don't think of that as merely symbolic. I think that is actually legal. That is, we're acknowledging something that has changed, and we're recognizing the sources of that authority in the law. And I think doing that is very important for creating the legal conditions

by which other important legal change can happen. One argument of opponents of the e r A is that it would quash state a board action restrictions. Is that the case, well, the Equal Rights Amendment says equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex, and so the question would come up as to whether or not there are some abortion restrictions that amount to a denial

of equal rights on account of sex. And I don't think that you can answer the question about every single abortion regulation that exists. But if there exists some abortion regulations that are based on gender stereotypes and uh work in a manner that actually amount to discrimination against women, then I think there is an argument that the Equal

Rights Amendment is incompatible with some abortion restrictions. I do think that the debate has gotten a little confused because some of the opponents of the e r A suggests that every possible abortion regulation you could imagine would become invalid it, and I don't think that is true. But at the same time, I think it's important to recognize that reproductive justice is linked in important ways to equality for women, and that's something that's recognized by people who

are both pro life and pro choice. Finally, there seemed to be a lot of obstacles to the e r A. What do you think the chances are that it will actually be added to the Constitution. I think in the long run, it will be added to the Constitution. I can't predict what the Senate will do. There is a bipartisan bill in the Senate as well. I don't know if it's going to move and if they will get

enough votes, at least in this session. But I do think that this is the centennial year of the nineteenth Amendment, which gave women the right to vote, and a lot of the polling that has been done in states that had not ratified so there was a lot of polling in Virginia before Virginia ratified that suggested that of Virginians supported the e r A. I think there have been similar polls now in Utah suggesting that a majority, a healthy majority of Utah's UH support the r A. They

haven't yet ratified, So given that there is popular support for the e r A, I do think that in this particular year, when we're celebrating women having the right to vote for a hundred years, there might be some political consequences for members of Congress who are not willing to remove the deadline in this election year. And I think that if that happens, then perhaps next year or the year after, there might be support in both Houses

of Congress for removing the deadline. And I think if that happens, we will have an e r A that is added to the Constitution without its legitimacy is being questioned. Thanks for being on Bloomberg, lad Julie. That's Julie sifteen for the Master's Programs at the City University of New York.