Controversial congressional resolution revives debate on ERA

Members of the Utah ERA Coalition were among activists nationwide who applauded the recent passage of House Joint Resolution 17, which retroactively removed the original ratification deadline for the Equal Right Amendment (Photo courtesy of the Utah ERA Coalition).

WASHINGTON, D.C. – U.S. Rep. Blake Moore, R-District 1, joined Republican colleagues on Mar. 17 in a futile attempt to block the retroactive removal of the deadline for ratification of the Equal Right Amendment (ERA).

“Women’s rights are human rights,” Moore said after the GOP effort to kill House Joint Resolution 17 failed on the floor of the House of Representatives, “and I will work with Utah stakeholders to ensure that women across our country and around the world have equal opportunities, are fairly represented in leadership positions and are treated with dignity and respect.

“However, H.J. Res. 17 is not a vote on women’s rights or even the 1972 Equal Rights Amendment. It is a vote that would overturn Article V (of the U.S. Constitution) and remove the right of Americans to participate in the amendment of our Constitution.”

The controversial resolution was approved by the full House by a vote of 222 to 204. Backers of the ERA extension, including President Joe Biden, are hailing its passage as a bipartisan victory for women’s rights because four Republican discarded party loyalty to join 218 Democrats in that majority. All 204 “nay” votes came from GOP representatives.

The text of the proposed Equal Right Amendment reads: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

The roots of the ERA movement date to the 1920s, when the proposed text of a constitutional amendment guaranteeing gender equality drafted by suffragettes Alice Paul and Crystal Eastman was introduced in Congress.

The measure was finally passed by the U.S. House and Senate five decades later and sent to state legislatures for consideration with a deadline of Mar. 22, 1979.

The ERA needed ratification by 38 states and had garnered the approval of 35 legislatures by 1977, when strong opposition led by activist Phyllis Schlafly gathered political momentum. Under conservative pressure, lawmakers in five states – Nebraska, Tennessee, Idaho, Kentucky and South Dakota – voted to rescind their approval of the amendment.

In 1978, Congress passed a joint resolution extending the ERA ratification deadline to June 30, 1982, but no additional states ratified the amendment during that period.

“Article V of the Constitution articulates a clear process for amendments and this legislation violates that process,” Moore argued, referring to H.J. Res. 17. “Congress passed the Equal Rights Amendment in 1972 with a two-thirds vote and determined that it must be ratified by three-fourths of the states within seven years. A sufficient number of states never ratified the amendment and it expired. The Constitution clearly states that additional states can therefore no longer ratify the amendment.”

Moore and his GOP colleagues aren’t exactly alone in that opinion.

The non-partisan House Office of Legal Counsel has previously delivered an opinion that the ERA is dead and would have to be reintroduced and debated in Congress before the process of its ratification could begin again.

But women’s advocacy groups insist that the ERA has already been ratified and have gone to court to push that argument.

Despite its long expired deadline, the Nevada legislature ratified the ERA in 2017 in a largely symbolic act of political theater. Illinois followed suit a year later, as did Virginia in January 2020.

Since they dispute the validity of five states rescinding their approval of the ERA, proponents of the measure now insist that the amendment has been ratified by 38 states.

When the U.S. Archivist denied feminist demands that the ERA be formally added to the Constitution due to the expired deadline, they appealed to the 1st Circuit Court of Appeals. After their suit was dismissed there, the ERA activists appealed to the U.S. Supreme Court, which declined to hear their case late in 2020.

“Instead of restarting the (ratification) process as required,” Moore said, “Democrats have now introduced H.J. Res. 17 to circumvent the Constitution by retroactively removing the ERA ratification deadline through a simple majority vote. They are attempting to override both the Constitution and the Supreme Court because they know that the ERA, if reintroduced, would no longer earn a two-thirds majority in Congress or be passed by three-fourths of the states.”

In addition to their stand of the principle of Article V of the Constitution, Moore said Republicans oppose the ERA as written because it could be interpreted to broadly expand the legality of abortion.

“I would gladly support a new vote on an amended version of the ERA that could not be interpreted by the courts to support taxpayer-funded abortions, strike down pro-life protections or erode conscience protections,” Moore added. “But Democrats have refused to adopt that amended language …”

Capitol Hill observers suggest that the constitutionality of the Mar. 17 House vote is dubious at best. But, if a similar measure were to pass the evenly divided U.S. Senate due to defections by GOP women there, even a legally questionable revocation of the ERA’s ratification deadline could be used to strengthen its advocates’ arguments in court.

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