Story at a glance

  • The U.S. Department of Justice says that the Equal Rights Amendment's deadline has expired and cannot be added to the U.S. Constitution.
  • The ERA would ban discrimination against women and guarantee equal constitutional rights for both sexes.
  • The amendment needs 38 states for ratification. It is technically approved in 37 states.

The deadline for states to review and potentially ratify the Equal Rights Amendment (ERA) has passed, the U.S. Department of Justice said in a statement issued Monday.

Supporters say the ERA would ensure that women have the same fundamental rights as men under the U.S. Constitution. It would protect against discrimination on account of sex or gender, according to the Alice Paul Institute

The current ratification bill is H.J. Res. 35

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This decision occurred just after Virginia Governor Ralph Northam (D) addressed the Virginia General Assembly and supported passing the ERA. Supporters say Virginia’s approval would push the ERA over the required three-fourths of states necessary for constitutional amendment. 

The Equal Rights Amendment, first introduced in the early 1920s, was approved by the House and the Senate in 1972 to be sent to the states for a vote. The deadline to ratify was extended to 1982, but at that point only 35 states supported it, just three shy of the required 38. 

Recent efforts to ratify the ERA have been seen in state legislatures of Nevada and Illinois in 2017 and 2018 respectively. Virginia, one of the states who has not yet ratified the ERA, aimed to do so in the current legislative session. 

The argument formed in the opinion of the Office of Legal Counsel for President Donald Trump nullifies these decisions on the basis that the deadline for states to vote passed in 1982, and that Congress cannot “revive” the proposed amendment after that deadline.

Assistant Attorney General Steven A. Engel of the Office of Legal Counsel also said in the issued opinion, “We conclude that Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the States,.” 

The decision also notes, “Should the people of the United States wish to adopt the ERA as part of the Constitution, then the appropriate path is for Congress (or a convention sought by the state legislatures) to propose that amendment once more, in a manner consistent with Article V of the Constitution.”

Several Congressional members have criticized this decision, including one of the ERA’s sponsors, Rep. Carolyn Maloney (D-N.Y.) who tweeted that although she is “disappointed” with the memo, she “does not believe that the OLC has the final word to dictate how Congress or the states proceed in amending the Constitution.”

States can potentially challenged the Department of Justice opinion in court. Meanwhile, supporters of the ERA are working to eliminate the deadline on the amendment through congressional action.

Published on Jan 09, 2020