This post is authored by Julie Suk, a Professor of Sociology & Political Science at The Graduate Center – CUNY and a Visiting Professor at Yale Law School. She is the author of We the Women: The Unstoppable Mothers of the Equal Rights Amendment (forthcoming August 2020).

In January 2020, the Virginia legislature voted to ratify the Equal Rights Amendment to the U.S. Constitution, almost forty years after the ratification deadline.

Has the Constitution been amended? In a lawsuit filed in DC federal court, Virginia says that the ERA is now part of the Constitution. But the defendant National Archivist won’t publish the ERA in the Constitution, in deference to the Trump Administration’s opinion that the deadline for states to ratify the ERA expired in 1979.

Who is right, Virginia or the Archivist?  More importantly, who decides?

Last week, I filed an amicus brief in the case, joined by constitutional law colleagues Erwin Chemerinsky, Noah Feldman and Reva Siegel. Supporting none of the litigants, we argue that whether the ERA is part of the Constitution under these unprecedented circumstances is a political question for Congress in the first instance, not the courts or the Executive Branch.

Virginia, Nevada, and Illinois – the states that ratified after Congress’s deadline -- are asking a court to decide that the ERA was validly ratified and order the Archivist to publish it. Five states that did not ratify the ERA, or that ratified and rescinded their ratifications, have intervened. Their Answer tells the court that “[n]o state could have ‘ratified’ the Equal Rights Amendment in recent years because the deadlines for ratifying that amendment expired years ago.” The Archivist seems to think it’s up to the Executive Branch. If the court reaches the merits of the ERA’s validity, more members of the sitting federal judiciary, on the DC Circuit and the Roberts Court, will eventually decide the fate of the ERA.  But Congress should be the first mover on whether an amendment is ratified, particularly when states disagree.

The question of who decides matters, for the long-term legitimacy of the amendment in the eyes of the American people.  In Congress, the House passed a resolution lifting the deadline on ratification in February, and a similar resolution has been introduced in the Senate with 48 sponsors so far.  Thirty-five Senate seats are on the ballot this November. Consistent with Coleman v. Miller, which affirmed Congress’s power to determine reasonable time frames for the ratification of constitutional amendments, a court should not prematurely pronounce on whether the ERA has been or can yet be ratified.

Although the prospect of getting a federal judge to add the ERA to the Constitution now may have immediate appeal for ERA proponents, much can be gained by persuading Congress to lift the deadline, validate late ratifications, and reject rescissions.  An amendment’s procedural path makes a difference to its meaning and transformative potential.  The legislative process by which Congress is weighing the ERA’s timeliness provides opportunities for the ERA’s meaning to be updated for the twenty-first century.  These opportunities help legitimize a constitutional amendment after a generation has gone by.  Moreover, congressional debate about the broad range of issues implicated by the ERA– rather than court adjudication of the states’ Article V theory – is more likely to produce an ERA with the bite that its proponents seek.

The ERA’s supporters hope for a robust ERA to improve our living Constitution – an ERA that will reverse twenty-first century gender injustice, even though it was adopted in 1972 and ratified by most states before 1977. Proponents want the ERA to go beyond judicially-created sex equality under the Equal Protection Clause, to reach pregnancy discrimination, the problems exposed by the #MeToo movement, and the gender inequities at home and at work laid bare by the Covid-19 crisis. Gender equality provisions promoting real equality have proliferated in other constitutional democracies around the world since the ERA was proposed.

A robust ERA responsive to today’s concerns is being made in Congress through legislative hearings and debates; a litigation against the Archivist about whether Article V allows deadlines is no comparable forum for this political exchange. A twenty-first century Congress, with record numbers of women and women of color elected to represent the nation’s people, is already adding new public meaning to the 1972 Equal Rights Amendment.  Congress is doing the overtly political work of setting new constitutional aspirations that a judge is likely to avoid when deciding the legal validity of a ratification deadline based on an interpretation of Article V.

In April 2019, a subcommittee of the House Judiciary Committee held a hearing on removing the deadline on the ERA, the first hearing in over three decades. Constitutional law expert Kathleen Sullivan’s testimony embraced gender equality provisions in constitutions around the world, and noted that “there is not a single other democracy in the world that lacks a sex-equality provision as does the U.S. Constitution.”  In November 2019, the House Judiciary Committee voted to report the ERA deadline removal favorably for a full vote by the House.  In the markup hearing, committee member Pramila Jayapal argued that the ERA was still needed today because it could strengthen constitutional protection for parents and families, by reaching discrimination based on pregnancy, childbirth, and caregiving responsibilities.  “A vote for the ERA is a vote for families,” she said.  

The House Judiciary Committee’s written report, issued in January 2020, suggested that the ERA “could provide a basis for Congress to engage in affirmative efforts to support gender equality both at home and in the workplace.” It “could provide a basis for plaintiffs to challenge laws or policies that have a disparate impact on women.” The report also said that “the ERA's prohibition against discrimination ‘on account of sex’ could be interpreted to prohibit discrimination on the basis of sexual orientation or gender identity.”

And, in the floor debate leading to the House’s vote to lift the deadline, Speaker Nancy Pelosi pointed to the 62 percent of pregnant women and new mothers who were in the workforce; yet the law allowed them to be placed on unpaid leave or forced out of their jobs.  Freshman Congresswoman Rashida Tlaib, the first Muslim woman ever elected to Congress, said that the ERA was “about women of color, women with disabilities, transgender women, immigrant women.”  Meanwhile, opponents explained that they opposed the ERA because it could expand abortion rights. Some proponents responded by acknowledging the connection between sex equality and reproductive healthcare, whereas others disavowed it. Congress – the lawmaking body of democratically elected representatives from throughout the nation – is the institution that can update the ERA and debate how it addresses these twenty-first century issues.

On June 4, 2020, Senator Murkowski marked the 101st anniversary of the Senate’s adoption of the women’s suffrage amendment on the Senate floor, by recognizing Virginia’s ratification of the ERA and advocating for the Senate resolution to remove the deadline. “I have asserted time and again . . . that you cannot put a time limit on women’s equality. . . Women’s equality is fundamental to the American way of life, and it is far past time to be expressly recognized in the Constitution.” In that same speech, she acknowledged the persistence of racial injustice and its connection to the struggle for women’s equality.  “Today, June 4, is not only a recognition of women’s suffrage, but it is the funeral of George Floyd.”

Congressional efforts to remove the ratification deadline provide the institutional setting amenable to answering the important substantive questions of why the ERA remains necessary and what its twenty-first century goals are.  As the nationally representative political branch, Congress can expand and update the ERA’s meaning as part of its political assessment of the amendment’s continued timeliness. While Congress is actively debating these issues, it would be inappropriate for a court to deem the ERA expired in the course of adjudicating the parties’ claims and defenses.  As various actors ask judges to embrace or reject the Equal Rights Amendment, our amicus brief reminds judges why Congress must decide first.  Congress has the power to remove the ERA deadline as part of its constitutionally prescribed role in making amendments under Article V.

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