This week, the House will consider Joint Resolution 79, which removes a time limit to ratify the Equal Rights Amendment. By doing so, Congress could eliminate any doubt that the Equal Rights Amendment became effective last month, when Virginia became the 38th state to ratify it.
Congress passed the Equal Rights Amendment in 1972 with bipartisan support. The momentum was contagious, with states ratifying in quick succession. Yet the opposition was well organized and vocal, capitalizing on fears about the entry of women into the labor force and a perceived threat to traditional gender roles. By the end of the 1970s, only 35 states had ratified it, three short of the requirement under the Constitution. In 1978, Congress voted to extend the time limit of seven years to 1982. However, the extension period passed without any more ratifications.
In recent years, however, the Equal Rights Amendment has reemerged, stronger than ever. The old 1970s arguments against it no longer make sense, as women have blazed a path to the highest levels of business, the military, and government service. Yet equality remains elusive, and it is constantly under threat. An overwhelming number of Americans favor an amendment to the Constitution that would guarantee equality under the law regardless of sex. Three more states have now also ratified the Equal Rights Amendment, with the shared understanding that the very process that extended the time limit out to 1982 could now remove it altogether.
The case for removing the time limit is a powerful one. The process for an amendment is set out in Article Five of the Constitution, which does not contemplate time limits at all. In fact, ratification of the 27th Amendment on salaries for Congress took over 200 years. Congress did not actually begin the practice of imposing deadlines until it proposed the Prohibition Amendment in 1917, with a deadline included as a separate clause in the amendment itself. The effectiveness of that kind of deadline has never been tested, however, one thing is clear. It would be difficult to change such a deadline once the states started to ratify the text that included it.
For the Equal Rights Amendment, however, Congress did not impose a deadline in the amendment itself. It chose to place a time limit of seven years in the joint resolution. The consequence of this choice, and by all accounts its purpose, was that Congress retained the power to change the joint resolution if the circumstances warrant. After all, one Congress cannot bind a future Congress. Further, the Supreme Court has held that Congress has broad power over the amendment process, a power that extends throughout the process of ratification. That power is so broad, in fact, that if Congress decided to remove the Equal Rights Amendment time limit today, that decision would not be subject to judicial review.
Some argue that the 1972 joint resolution expired years ago, so it can no longer be changed. This is incorrect. There is nothing in the text of the 1972 joint resolution suggesting it would ever expire. The plain text is the starting point for every effort to interpret an act of Congress. This is the true legacy of the late Justice Antonin Scalia, and it has transformed how Supreme Court advocates write briefs and how justices write opinions. According to the plain text of the 1972 joint resolution, the time limit is a limit on ratification, not a sunset provision on the joint resolution itself. Congress knows how to pass a sunset provision when it wants to, like it had done in the Violence Against Women Act. It did not do that here.
No matter what happens in Congress, there is still a path forward for the Equal Rights Amendment. A court could hold that the time limit is simply ineffective. The validity of an amendment depends on Article Five, which says 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.” Congress cannot change that process just by passing a resolution. The recent lawsuit filed by the attorneys general of Illinois, Nevada, and Virginia will address this issue, unless Congress acts first.
In the history of our Constitution, a time limit in Congress has never stood in the way of an amendment that has been ratified by three fourths of the states. Congress should act now to resolve the issue and make clear that the Equal Rights Amendment is valid and guarantees equality under the law for all regardless of sex. There should be no time limit on equality.
Linda Coberly is the chair of the appellate and critical motions practice for the law firm of Winston and Strawn in Chicago. She also serves as the chair of the legal task force with the national Equal Rights Amendment Coalition.