New Life for the Equal Rights Amendment

        “Democratic sweep in Virginia gives new life to the Equal Rights Amendment” screams the CNN headline on November 6, 2019. Democrats now control the government of Virginia, one of only 13 states that has never ratified that proposed Amendment.

        The Equal Rights Amendment, passed overwhelmingly by Congress in 1972, would dictate that “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”  

        Constitutional amendments require a 2/3 vote of both houses of Congress and ratification by ¾ of the states (which amounts to 38 of them). When initially passed, Congress set a seven-year deadline for the Amendment to be ratified. 35 states did ratify the amendment during that time, though 5 of these voted to rescind their ratifications. Congress did extend the deadline through 1982, though no more states ratified during the extension.

        In 2017 and ‘18, Nevada and Illinois became the 36th and 37th states to ratify the Amendment. So, Virginia appears poised to be the 38th, potentially putting the ERA over the top.

        Because there have been so few constitutional amendments, case law is very unclear regarding the procedure. Still, two questions would be critical

        First, could Congress extend or eliminate the deadline by simple majority rather than a two-thirds vote? Since amendments require two-thirds, it could be forcefully argued that the extension or elimination of the deadline would require the same two-thirds vote. On the other hand, one might argue that the deadline alteration is merely a procedural issue, as the amendment itself was already passed by the two-thirds vote. While huge majorities of both houses in the 1970s were willing to pass the ERA, getting two thirds of Congress to agree to anything controversial in today’s atmosphere of divisive politics could be difficult.

        Second, it is unclear that ratification can be rescinded. Certainly, once an amendment has been ratified and is in force, it would be difficult to argue that the amendment could be nullified by states rescinding their ratifications. Even before an amendment is in force, there is no obvious constitutional mechanism by which ratification can be rescinded. If the rescission were valid, five more state ratifications would be required even with Virginia.

        The next question becomes: What would the effect of the Amendment be if it were passed. Let’s start with the premise that the amendment would directly affect only government action, not private action. Private discrimination based on gender is already prohibited by federal law in many areas, such as housing and employment. This Amendment would have little or no effect on these federal laws.

        Regarding government action, gender-based discrimination is already scrutinized under the 14th amendment’s “equal protection” clause. There are many examples of such scrutiny, perhaps the most famous being the 1995 forced integration of Virginia Military Institute, a formerly men-only state-run military school.

        Long story short, laws that differentiate based on classes of people are assigned one of three levels of scrutiny:

        “Non-suspect” classifications are subjected only to “rational basis” review, which rarely results in overturning a law.

        Quasi-suspect classifications are subjected to “medium scrutiny,” which requires that the law be substantially related to an important government interest.

        Suspect classifications are subjected to “strict scrutiny,” which requires that the law be necessary to achieve a compelling government interest.

        While gender-based classifications have historically been subjected to medium scrutiny, in the Virginia Military Institute case, Justice Ruth Bader Ginsburg’s opinion observed that gender-based classifications would only be approved if supported by an “exceedingly persuasive justification.” While not quite strict scrutiny, many scholars consider the standard at least something between medium and strict scrutiny.

        As there is no level of scrutiny above strict, the most the equal rights amendment could do would be to force gender-based classifications to be subjected to strict scrutiny. All such government classifications would need to be necessary to achieve a compelling government interest to apply. Issues relating to the private sector would continue to be governed by the applicable federal and state laws.

        It was common during the equal rights amendment debates in the 1970s to argue that passage of the amendment would end the use of gender-segregated rest rooms or dorm rooms. This, of course, is fallacious. Gender-segregated rest rooms or dorm rooms run by anyone but government agencies would be unaffected. Those run by government authorities, such as national parks or state schools, would simply have to show that running separate rest rooms or dorm rooms is necessary to achieve a compelling state interest, a hurdle that doesn’t seem overwhelmingly difficult in regard to these questions.

        All in all, passage of the Equal Rights Amendment, though much more likely to become reality than it was on November 4, seems like a lot of work to achieve what might turn out to be minor (or no) changes.