February 11, 2020
Congress Can and Should Take Action on the ERA
Linda Coberly leads the Appellate & Critical Motions Practice of Winston & Strawn LLP and serves as Chair of the ERA Coalition’s Legal Task Force.
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.