Equal Rights Amendment advocates should take ‘dead’ for an answer

Sensible Americans consider the Equal Rights Amendment a long-dead relic, but its supporters, incredibly, are still trying to revive it.

Congress proposed the ERA in March 1972, and it expired when its ratification deadline passed with insufficient state support. No one likes to lose, but ERA advocates, who appeared to have advanced through the stages of grief to acceptance, have regressed to the first one: denial. They just won’t take “dead” for an answer.

In their latest gambit, they want President Joe Biden to put the 1972 ERA in the Constitution by ordering the Archivist of the United States to say it is so. The Archivist has already refused and this is another embarrassing swing-and-a-miss.

Rep. Martha Griffiths (D-Mich.) introduced House Joint Resolution 208 in 1971 to propose this constitutional amendment: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” With the support of women’s groups, Griffiths included a seven-year ratification deadline to increase congressional support, while predicting that the states would ratify the ERA within two years.

She was wrong. By March 1979, 35 states had ratified the 1972 ERA, but five of them had rescinded their approval. No new states joined, even after Congress extended the deadline until June 1982. The deadline was binding, and ERA advocates came up short.

The 1972 ERA is not on life support, hibernating or in suspended animation. Everyone knew that the deadline was valid and binding and that the 1972 ERA expired when that deadline passed without ratification by three-fourths of the states. When feminist leader Gloria Steinem appeared on “The Oprah Winfrey Show” in January 1986, she explained that “it now has to start the process over again… be passed by the House and Senate and go through all of the states’ ratification process.” Steinem was right.

But anything can happen in the world of make-believe. Three states — Nevada in 2017, Illinois in 2019 and Virginia in 2020 — passed resolutions “ratifying” the 1972 ERA that was no longer pending before them. Ignoring the five pre-deadline ratification rescissions, and counting these post-deadline ratifications, ERA advocates say, means that the 38-state threshold has been reached and the 1972 ERA is now part of the Constitution. But they can’t seem to get anyone in charge to agree.

The Supreme Court has effectively decided, without saying so explicitly, that the 1972 ERA is no longer pending before the states. After the 1972 ERA’s original deadline passed, Idaho and Arizona sued for a declaratory judgment that the measure had failed. The Supreme Court dismissed the suit in 1982, after the extended deadline passed, as moot after considering a memorandum by the acting solicitor general that “the Amendment has failed of adoption” and was no longer pending before the states.

After passing their faux ratification resolutions, Nevada, Illinois and Virginia sued, hoping to force the archivist to certify and publish the 1972 ERA as part of the Constitution. The Biden Justice Department defended the archivist in this litigation and, in a brief filed with the U.S. Court of Appeals for the D.C. Circuit in March 2022, argued that the states “have not identified any relevant legal authority requiring the Archivist to certify the adoption of an amendment ratified after a deadline imposed by Congress.”

A panel of judges appointed by Presidents Obama, Trump and Biden, unanimously agreed. In fact, every court to consider the issue has concluded that the 1972 ERA is no longer pending before the states.

In 2020, then-Archivist David Ferriero sought an opinion from the Justice Department’s Office of Legal Counsel. Based on that advice, he said that the 1972 ERA could not be certified. Undeterred, Sen. Kirsten Gillibrand (D-N.Y.) and 45 fellow Democrats have now written President Joe Biden, asking that he “direct the archivist of the United States to certify and publish the Equal rights Amendment (ERA) as the 28th Amendment.”

To their credit, Colleen Shogan and William J. Bosanko, the current archivist and deputy archivist of the United States, have already issued a statement that the 1972 ERA “cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.”

But, insisted Gillibrand in a post on X, ERA advocates have “the support of legal experts” and the League of Women Voters. (Here’s my analysis of the “legal experts” arguments.) As for the League of Women Voters, which initially led ERA opposition for decades, they fully supported Griffiths’s addition of a binding ratification deadline to the 1972 ERA. They gambled, and they lost. They cannot now try to have it both ways.

The ERA’s original objectives of eliminating discriminatory laws and putting the equality principle in the Constitution have been achieved without it. The states long ago rejected putting the 1972 ERA in the Constitution.

The jaws of defeat are closed and locked. Advocates should accept “dead” for an answer and move on.

Thomas Jipping is a Senior Legal Fellow in the Meese Center for Legal and Judicial Studies at The Heritage Foundation.

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