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Photograph of Jimmy Carter Signing Extension of Equal Rights Amendment (ERA) Ratification, 10/20/1978

We have good news and bad news, dear readers.

The good news: We are closer than ever to adding the Equal Rights Amendment to the Constitution!

The bad news: We still have a long way to go.

The Equal Rights Amendment would add just three sentences to the US Constitution. But those three sentences would, for the first time, enshrine the equality of the sexes in our country's foundational document.

The ERA reads simply:

Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3: This article shall take effect 2 years after the date of ratification.

One would think that, here in the 21st century, this would not be controversial. Yet here we are, nearly 100 years after the ERA was first introduced, and it still has not been ratified.

Now, we're closer than ever. With Democrats taking control of the Virginia legislature in 2020, it seems like the ERA is finally going to be ratified by enough states to be added to the Constitution. But what remains to be seen is whether that will actually mean anything.


The problem is that Congress put a limit on how long states had to ratify the ERA, and that date came and went in 1982. This raises a whole bunch of issues. Was Congress even allowed to give the states a deadline in the first place? Can Congress now extend the deadline? Could Congress retroactively extend the deadline, after Virginia ratifies? Can states that once ratified the ERA take their ratifications back? If it passes the House (it will pass the House), will devil incarnate Mitch McConnell even allow the Senate to vote on it?

The answers to those questions are unclear. But one thing is clear: Ratifying the ERA is a real possibility, for the first time in decades.

This week, the House Judiciary Committee took its first steps towards making the ERA a reality, voting 21-11 to advance House Joint Resolution 79, which would remove the ratification deadline.

The ERA is back! Is the ERA back?

Yes! (We hope.)

In last week's elections, Democrats won both houses of the Virginia legislature for the first time since 1994. And the incoming legislators have made it clear that they intend to ratify the ERA. After the election, Virginia Senate Democratic Leader Dick Saslaw told supporters:

One thing we are going to need to do right away is pass the Equal Rights Amendment in Virginia. It's high time we include the women of this country in the Constitution of the United States.

And Virginia Governor Ralph Northam has said that ratifying the ERA will be a top priority next legislative session.

If the Virginia legislators follow through with their promise, they will be the 38th state to ratify, meaning we will have finally reached the two-thirds threshold for constitutional amendments.

But the sad truth is that it remains unclear whether any of this matters.

Huh?

Despite Abigail Adams's plea to "Remember the ladies," our Founding Fathers entirely ignored the existence of women when they drafted the Constitution. And until the 19th Amendment was ratified in 1920, giving women the right to vote, it continued to do so.

The ERA, drafted by suffragettes Alice Paul and Crystal Eastman, was first introduced to Congress in 1923. After ignoring it for decades, Congress finally approved the ERA and submitted it to the states nearly 50 years later, in 1972. The approval also included a deadline: States would have until 1979 to ratify the amendment.

Initially, the ERA was exceedingly popular and had broad, bipartisan support. And then Phyllis Schlafly, a giant pile of rhinoceros dung in the shape of a woman, stepped up to the plate. Some call Schlafly the original Aunt Lydia, but I see her more as a Serena Joy. Schlafly didn't think women needed education, but she herself had a B.A., an M.A., and a J.D. She argued that women should be full-time wives and mothers, yet she was a lawyer, touring speaker, writer, and political activist.

Women like Schlafly are among the worst of the patriarchy's disciples. And her cuntfuckery didn't begin or end with opposing equal rights for women. Schlafly also supported racial segregation and discrimination, tried to ruin the lives of people she considered communists, and as recently as 2007, said that marital rape isn't actually rape or a crime. (Full disclosure: I may or may not have done shots to celebrate Schlafly's death in 2016.)

Thanks in large part to Aunt Phyllis's ratfucking, the ERA floundered. It had been ratified by 28 of the 38 required states when Schlafly started her tirade, but it then stalled at 35. Five states "rescinded" their ratification.

Congress extended the ratification deadline from 1979 to 1982, but no more states ratified the amendment.

And that seemed to be that -- until the 2016 election and emergence of the #MeToo movement enraged and empowered women everywhere. Nevada, number 36, ratified the ERA in 2017, followed by Illinois, number 37, in 2018. If Virginia ratifies, it will be magic number 38.

But there are still a lot of open questions ...

One way or another, there is going to be litigation over the ERA and it's all but certain that the Supreme Court will have to weigh in. And the questions raised by the ERA's unique procedural stance don't have a direct analogue in history. There are several open questions that we just don't have the answers to yet.

Can Congress even put a deadline on ratification?

Precedent says yes to this one. In1921, a man charged with violating the prohibition laws put in place by the 18th Amendment argued that the 18th Amendment was invalid because Congress had put a time limit on its ratification. The Supreme Court said nah, Congress is allowed to affix a reasonable time frame for a constitutional amendment to be ratified.

Can the deadline be extended?

Again, we just don't know. If Congress has the ability to create a deadline, one would think they could also extend that deadline. But maybe not. The 1979 deadline was included in the congressional resolution as well as the resolutions of 24 of the ratifying states. Does that mean their ratifications of the ERA are no longer valid? Again, the Constitution itself offers no guidance here.

Will Mitch McConnell even allow a vote on extending the ratification deadline?

Until at least January 2021, Republicans control the Senate. Republican Senators Lisa Murkowski and Susan Collins are co-sponsors of the Senate resolution to extend the deadline, giving it a good chance of passing if it makes it to the floor. But since Democrats took the House, the Senate has been where legislation goes to die. And it's hard for us to believe that Grim Reaper Mitch McConnell would ever do the right thing.

Can the deadline be extended retroactively?

If McConnell lets the ERA resolution die in the Senate, it seems likely that Virginia will ratify the ERA before the deadline is officially extended by Congress. In that situation, Congress and/or the courts would have another issue to consider: whether Congress can change the ratification deadline after the required 38 states have ratified.

Can states take back their ratification?

Five states have already tried to rescind their ratification, because after voting to ratify the ERA, they decided they really didn't care about women, after all. Can they take back their ratification and say "loljk"?

There actually is some precedent on this one, and the precedent we have says no takesies backsies (but also, it's up to Congress).

The 1939 case Coleman v. Miller and the history of the 14th Amendment may give us some insight. In Coleman, the Supreme Court ruled that it's Congress, not the courts, that gets to determine whether a ratification is valid. And in another situation, Congress found that the Fourteenth Amendment had been properly ratified despite some states trying to un-ratify it.

So it seems like, if Congress approves the ERA's ratification, courts probably shouldn't step in to stop it.

But ...

Know what sucks?

The fate of the Equal Rights Amendment is currently in the hands of a bunch of old male sexists who think "feminism" is a dirty word.

First, we have Mitch McConnell, who might actually be the worst person to ever live.

Then we get to McConnell's puppet master, Donald Trump, who has been credibly accused of rape, sexual assault, and sexual harassment by at least 23 women.

And finally, we have the five conservative justices on the Supreme Court, who include one man who has been credibly accused of sexual assault, another man who has been credibly accused of sexual harassment in the workplace, and two more men who have never seen a restriction on women's rights that they didn't like.

But let's not go out on a low note!

The fact that the ERA is back is fucking phenomenal! It shows that the rage women felt after we elected the pussy-grabber-in-chief can be turned into real, tangible action. And we are closer than we have ever been to adding equal rights for women to the US Constitution.

There's a lot of fuckery going on right now with women's rights and reproductive rights, and passing the ERA could give us some needed protection. Republicans opposing the ERA in the House Judiciary Committee argued that the ERA could possibly end the Hyde Amendment or give protections to transgender people -- and to all of that, we say HELL YES!

It's far past time for the Constitution to acknowledge what most of us have known all along: Women deserve better.

This badass Polish lady is our current mood:

[CNN / Smithsonian / NYT]

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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.
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