The American Constitution Society advocates for the Equal Rights Amendment (“ERA”) to be recognized as the 28 th Amendment to the U.S. Constitution. We provide programming and resources to help foster greater understanding of this century-long fight for gender equality.
The ERA is critical to addressing a founding failure of our Constitution – its silence on gender equality. The 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,” and gives Congress power to enforce this proscription against gender discrimination. Thirty-eight states have acknowledged this founding failure and ratified the ERA in accordance with the procedure provided in Article V. It is part of the Constitution and should be treated as such.
Article V of the U.S. Constitution lays out two methods by which the Constitution can be amended. Every amendment to the Constitution has utilized the same method. Two-thirds of each chamber of Congress proposed an amendment to the Constitution and that amendment was subsequently ratified by the legislatures of three-fourths of the states. The ERA has satisfied each of these steps.
On March 22, 1972, the 92nd Congress passed House Joint Resolution 208, proposing the ERA and sending it to state legislatures for ratification. By a vote of 354-24 in the House and 84-8 in the Senate, each chamber comfortably surpassed the required two-thirds threshold.
On January 27, 2020, Virginia became the 38th state to ratify the ERA. As a result of Virginia’s ratification, the ERA reached the three-fourths of states threshold and thereby satisfied all requirements prescribed in Article V to become the 28th Amendment to the Constitution.
ACS has and will continue to hold national and chapter events about the need to acknowledge the ratification of the ERA and recognize it as the 28th Amendment.
Letter from Russ Feingold to Hon. Carolyn Maloney, then-Chair, Committee on Oversight and Reform in the U.S. House of Representatives on the 50th Anniversary of the ERA.
Mar 21, 2022 Press ReleaseCorresponding Oversight Committee Press Release regarding Russ Feingold's March 21 letter.
Mar 22, 2022Statement by Russ Feingold Before the Senate Judiciary Committee
Feb 28, 2023Broken Law Podcast Episode 95: Why The ERA Is More Important Than Ever
MARCH 28, 2023
The Equal Rights Amendment (ERA) was first introduced in 1923. 100 years later, with 38 states having ratified it, should it be considered the 28th Amendment to the U.S. Constitution? Lindsay Langholz speaks with Kathleen Sullivan about the status of the ERA and why the ERA is more important than ever. READ MORE »
Broken Law Podcast Episode 67: Sex, Gender Identity, and the Constitution
SEPTEMBER 13, 2022
On this episode, we discuss sex, gender identity, and the Constitution. That’s because we are talking about the Equal Rights Amendment (ERA) and the argument that it is already the 28th Amendment to the Constitution. Lindsay Langholz is joined by Kate Kelly, author of “Ordinary Equality,” to discuss the ERA’s long journey, the women and queer activists who kept the project going for so long, and why their work and their fight are still relevant today. READ MORE »
This week kicked off Women’s History Month. Not coincidentally, this week also saw the Senate Judiciary Committee hold a hearing on “The Equal Rights Amendment: How Congress Can Recognize Ratification and Enshrine Equality in Our Constitution.” It is great to see the Senate champion the ERA, which I believe has met all constitutional requirements for […]
Timed to honor Women’s History Month, the House voted last week to remove the time limit on the ratification of the Equal Rights Amendment (ERA). The ERA, which would explicitly enshrine sex equality in the Constitution, was proposed by Congress in 1972 and sent to the states for ratification within seven years. A supermajority of […]
This week, the House of Representatives will take up H. J. Res. 79, which would remove the time limit on ratification of the Equal Rights Amendment. The recent ratifications by Nevada, Illinois, and Virginia have put the practice of imposing time limits to the test, and a lawsuit by the Attorneys General of those three […]
This week, the House of Representatives will take up H. J. Res. 79, which would remove the time limit on ratification of the Equal Rights Amendment. The recent ratifications by Nevada, Illinois, and Virginia have put the practice of imposing time limits to the test, and a lawsuit by the Attorneys General of those three states challenges the time limit’s effectiveness. Whatever happens in the litigation, however, it remains clear that Congress has broad power over the ratification process—so much so that to a great extent, its judgments are not even subject to judicial review. Congress can and should act now to remove the time limit, honoring the expressed will of those three states and the many others—now 38 in all—that have voted in favor of constitutional equality.
Much has been made of Justice Ruth Bader Ginsburg’s recent comments about the Equal Rights Amendment, in which she expressed a preference that the ratification process “start over.” Importantly, Justice Ginsburg did not comment about the pending legislation to remove the time limit, or about the pending lawsuit by the state Attorneys General. Judges do not comment on pending or forthcoming lawsuits—and for good reason. In our constitutional system, judges do not resolve issues in the abstract; they reserve judgment until they have seen and heard the arguments for each side, presented by counsel in an adversary proceeding. Justice Ginsburg did not cross this important line. What she expressed was a preference for a “new beginning” in the face of the “controversy” over what she called the “late comers,” as well as the handful of states that have voted to rescind. To be sure, the existence of this controversy is undeniable and unfortunate. In 2020, there should be no controversy about the Equal Rights Amendment. That is precisely why members of Congress plan to take an important step to resolve it by removing the time limit altogether.
The arguments in support of the current efforts are powerful. The time limit on the ERA does not appear in the body of the amendment itself; Congress chose to place it in the accompanying joint resolution. Through this choice, Congress reserved for itself the power to change it, under the familiar premise that one Congress cannot bind future Congresses. Congress made such a change in 1978, extending the time limit by another three years. And it can do so again now. Doing so would eliminate the argument that the validity of the Equal Rights Amendment depends on something other than Article V of the Constitution, which states in plain text that an amendment “shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several States.”
On the merits of the Equal Rights Amendment, Justice Ginsburg’s views are clear. Although she acknowledges the progress that has been made over many years, she recognizes the limits of that progress, even under the 14th Amendment’s Equal Protection Clause. She also notes that even if the ERA were merely symbolic at this point, “it is a very important symbol.” After all, every Constitution written in the world since 1950—even Afghanistan’s—contains a provision equivalent to the ERA. In testimony in support of H. J. Res. 79, scholar and former dean of Stanford Law School Kathleen Sullivan explained that the absence of an equal rights guarantee from our Constitution is a “national embarrassment.” Congress now has the power to correct it.
