In 1972, Sen. Ben Cardin was an on-the-rise Democratic member of the Maryland House of Delegates when that body voted to adopt the Equal Rights Amendment.
Now a third-term senator from Maryland, Cardin says he is excited about reviving the proposed constitutional amendment, which fell short of ratification in 1982.
“Even as we celebrate America’s first female vice president, our nation is held back as the only modern constitution that fails to enshrine full equality for both men and women. This is unacceptable,” Cardin said in a statement. “Most Americans are surprised to learn that the ERA is not already part of the U.S. Constitution. The states have done their job to make this happen. Now Congress must finally do its job and remove any legal obstacles to certifying the ERA.”
If the Equal Rights Amendment were adopted, the Constitution would state 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.”
But the Equal Rights Amendment has a long and tortured legislative history going back nearly 50 years and, more recently, a series of Trump administration Justice Department decisions and federal court rulings that are proving obstacles to Democrats in Congress.
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The House is set to move forward on legislation this week, through a joint congressional resolution, that would eliminate the 1982 ratification deadline that initially killed off the ERA.
The ERA, first proposed by the National Women’s political party in 1923 to give legal equality to both sexes and ban discrimination based on sex, did not find political life again until the late 1960s when Congress considered it. By October 1971, it garnered the mandatory two-thirds vote in the House and the same in the Senate in March 1971. At that point, the ERA was sent to the states for ratification.
However, although Congress included a seven-year deadline for states to ratify the ERA and extended the deadline to 1982, the amendment fell short by three states, three-fourths of all states, or 38 states, necessary for ratification. In fact, within the seven-year deadline, the ERA became more unpopular, and five states withdrew their support.
Since that time, three states with legislatures that did not ratify the ERA before the original deadline, Virginia, Illinois, and Nevada, have done so over the past four years. Longtime supporters of the ERA argue that ratifying the proposed amendment nearly 40 years after the deadline should not stop the amendment from becoming part of the Constitution.
Last month, Rep. Jackie Speier, a California Democrat, and Rep. Tom Reed, a New York Republican, introduced her House Joint Resolution to enable the swift ratification of the ERA by removing the amendment’s ratification deadline.
The resolution has 150 co-sponsors and a companion resolution in the Senate, spearheaded by Cardin and Sen. Lisa Murkowski, an Alaska Republican.
However, a federal judge dismissed a lawsuit by three Democratic state attorneys general that attempted to force the federal government to acknowledge Virginia’s ratification of the ERA last year, which would have put it over the top for ratification.
The U.S. archivist stated he would not take any action to certify the amendment’s adoption, referencing an opinion from the Department of Justice under the Trump administration.
U.S. District Judge Rudolph Contreras said in his opinion that Nevada, Illinois, and Virginia’s motives were “laudable,” but the ratifications came too late as a result of Congress setting deadlines for ratifying the ERA years previously.
Cardin is not deterred by this legal setback.
“This specific issue whether Congress can extend it has not been litigated. The court specifically said that they would not consider that point because it wasn’t before the court,” Cardin told the Washington Examiner.
Opponents of the ERA cite not only the ratification deadline issue but also religious liberty issues, women in combat, women registering for the military draft, and biological males and biological females participating on opposite-sex sports teams.
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“I need to fully read the text of the bill, but certainly I have a number of concerns about religious liberties,” Sen. Joni Ernst, an Iowa Republican, told the Washington Examiner. “I have concerns about biological males participating in women’s sports, so there are some issues that need to be resolved.”
The resolution’s future in the House this week is that it will likely pass, but finding 10 Republican senators to support its passage and overcome the filibuster, is a steeper climb.
“We’re going to keep working at it. We don’t have the numbers on our side that we need right now. We need to get those up,” Murkowski said.
