Equal Rights Amendment
The Equal Rights Amendment (ERA) is a proposed amendment to the United States Constitution that declares: "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex," with Congress empowered to enforce it and the amendment to take effect two years after ratification.[1] First introduced in Congress in 1923 by suffragist Alice Paul as an extension of women's equality efforts following the Nineteenth Amendment, the ERA sought to embed sex-based equality explicitly in the Constitution beyond the Equal Protection Clause of the Fourteenth Amendment.[2] It passed both houses of Congress with bipartisan majorities on March 22, 1972—the House by 354–24 and the Senate by 84–8—and was sent to the states for ratification, initially with a seven-year deadline expiring in 1979.[2][3] Despite early momentum with 30 states ratifying within the first year, the ERA stalled amid growing opposition, ultimately securing only 35 of the required 38 state approvals by the extended deadline of June 30, 1982, imposed by Congress in 1978.[2][3] Key resistance came from conservative activist Phyllis Schlafly, who founded the Stop ERA campaign in 1972, mobilizing housewives and traditionalists by arguing the amendment would erode sex-specific legal protections for women—such as labor laws exempting them from hazardous jobs, alimony preferences, and military draft exemptions—while inviting federal overreach into family law and potentially mandating co-ed facilities.[4] Schlafly's grassroots efforts, emphasizing causal outcomes like compelled female conscription and the dilution of maternal prerogatives under first-principles scrutiny of the ERA's broad language, proved decisive in flipping key unratified states like Illinois, Indiana, and North Carolina against it, highlighting divisions within the women's movement over whether constitutionalizing equality would advance or undermine practical female interests.[4][5] Post-deadline, three additional states—Nevada in 2017, Illinois in 2018, and Virginia in 2020—passed ratifications, prompting advocacy for retroactive validation, but a 2020 Department of Justice Office of Legal Counsel opinion affirmed the deadline's binding nature, rendering them ineffective absent congressional revival, which has not occurred.[3] As of 2025, the ERA remains unratified and outside the Constitution, its failure underscoring debates over the necessity of explicit sex equality provisions given judicial expansions of the Fourteenth Amendment, versus risks of unintended legal equalizations that ignore biological and social sex differences.[3] Proponents continue pushing resolutions to remove the deadline or resubmit the amendment, though legal scholars note such maneuvers face constitutional hurdles, preserving the status quo where sex discrimination claims rely on intermediate scrutiny rather than strict.[6]Text and Core Provisions
Original Resolution Text
The original Equal Rights Amendment resolution was drafted by Alice Paul, a key figure in the women's suffrage movement and founder of the National Woman's Party, in collaboration with Crystal Eastman.[7] It was formally introduced in the United States Congress on December 13, 1923, as House Joint Resolution 75 during the first session of the 68th Congress.[8] This marked the first federal proposal explicitly guaranteeing sex-based equality in the Constitution, building on the momentum from the 19th Amendment's ratification three years prior.[9] The resolution's core text proposed the following amendment:Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction. Congress shall have power to enforce this article by appropriate legislation.[1][9]This succinct language avoided specifying "under the law" or limiting protections to "on account of sex," potentially broadening its scope to invalidate sex-based distinctions in areas like labor laws or military service without explicit congressional override mechanisms beyond enforcement powers.[10] The phrasing reflected Paul's first-principles approach to equality, eschewing qualifiers that might preserve protective legislation deemed paternalistic by advocates.[11] Unlike subsequent versions, the 1923 text did not include separate sections for ratification deadlines or enforcement details, maintaining a minimalist structure akin to earlier constitutional amendments.[12] The resolution failed to advance beyond committee in 1923 but was reintroduced annually, with the original wording persisting until revisions in the 1940s shifted to a more targeted prohibition on denial of rights "on account of sex."[13] This initial formulation underscored the amendment's radical intent to embed absolute sex equality, influencing debates over its potential to dismantle state-level gender-specific regulations.[14]
Key Interpretations and Legal Scope
The Equal Rights Amendment (ERA), as proposed in 1972, consists of three sections, with Section 1 providing the substantive guarantee: "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex."[2] This language limits its scope to actions by federal and state governments, constraining official discrimination rather than directly regulating private conduct, consistent with the state action requirement under other constitutional provisions like the Fourteenth Amendment. Section 2 empowers Congress to enforce the amendment through appropriate legislation, mirroring enforcement clauses in amendments such as the Fifteenth, and Section 3 outlines the ratification process by three-fourths of states.[3] Originally drafted by Alice Paul in 1923, the ERA's intent centered on eliminating legal distinctions between men and women in domains including property rights, divorce settlements, employment opportunities, and inheritance, building on the Nineteenth Amendment's suffrage gains to achieve formal constitutional equality without sex-based exceptions.[2] Paul viewed it as affirming the Constitution's equal application to all citizens irrespective of sex, rejecting arguments for differential treatment based on perceived physical differences.[10] During congressional debates in the 1970s, proponents emphasized that it would invalidate overtly discriminatory statutes—such as those barring women from certain professions or jury service—while not necessarily voiding all sex-specific laws, asserting that truly protective measures (e.g., minimum wage laws) could survive if rationally tied to equality rather than paternalism.[15] Opponents, including activist Phyllis Schlafly, contended that the ERA's broad phrasing would mandate strict judicial scrutiny of any sex-based classification, potentially nullifying state protective labor legislation—such as restrictions on women's working hours or heavy lifting—from the early twentieth century, which had been upheld under rational basis review as safeguarding maternal health.[16] Courts interpreting analogous state equal rights provisions have occasionally struck down such laws when deemed outdated, as in a 1973 Michigan ruling invalidating weight-lifting limits for women under the state constitution's equality clause, though federal hypothetical analysis remains unsettled absent ratification.[17] Unlike the Fourteenth Amendment's intermediate scrutiny for sex discrimination established in Craig v. Boren (1976), the ERA would likely elevate sex to a suspect classification akin to race, requiring compelling governmental interest and narrow tailoring for any differential treatment, thereby expanding judicial oversight over policies like selective service registration, historically limited to men until policy shifts in 2015-2016.[18] The amendment's phrase "on account of sex" has prompted debate over its precision: original advocacy focused on biological sex as a binary category for equality purposes, without encompassing modern expansions to gender identity or sexual orientation, which postdate the 1923 drafting and lack explicit textual support.[19] Contemporary interpretations from advocacy groups assert broader coverage, potentially invalidating single-sex facilities or sports categories as discriminatory, but such views diverge from the historical record prioritizing empirical sex differences in law without affirmative mandates for quotas or redefinitions.[20] Absent ratification, no binding Supreme Court precedent exists, leaving scope to congressional intent and potential future litigation, where source credibility matters—early proponents like Paul emphasized anti-discrimination over substantive outcomes, while later analyses from institutions with documented ideological tilts may overstate transformative effects.[21]Potential Constitutional Implications
Ratification of the Equal Rights Amendment (ERA) would embed a explicit prohibition against denying equality of rights on account of sex directly into the U.S. Constitution, potentially elevating sex-based classifications to the highest level of judicial scrutiny akin to race or national origin under the Equal Protection Clause of the Fourteenth Amendment.[22][23] Currently, courts apply intermediate scrutiny to sex discrimination claims, requiring a substantial government interest and means substantially related to that interest, as established in Craig v. Boren (1976).[24] The ERA's text—"Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex"—would likely mandate strict scrutiny, demanding that sex-based laws serve a compelling governmental interest and be narrowly tailored, thereby invalidating a broader array of differential treatments between sexes.[25] This shift could profoundly affect military conscription policies, as the male-only Selective Service registration requirement—upheld under intermediate scrutiny in Rostker v. Goldberg (1981)—might fail strict scrutiny, compelling Congress to either extend registration to women or eliminate it entirely.[25] Opponents, including legal scholars, argue that the ERA would prohibit government actions "on account of sex," potentially barring sex-specific protections like women-only labor regulations or alimony preferences in divorce, which historically differentiated based on presumed economic vulnerabilities tied to sex.[25] Proponents counter that it would primarily reinforce existing statutory protections under Title VII and Title IX without disrupting benign classifications, though empirical analysis of state ERAs suggests varied judicial interpretations, with some upholding single-sex institutions under narrow exceptions.[17] In reproductive rights, the ERA could challenge restrictions on abortion as sex discrimination, given that only women bear pregnancies; conservative analysts contend it might provide an alternative constitutional basis for abortion access, superseding state limits post-Dobbs v. Jackson Women's Health Organization (2022) by deeming prohibitions as abridging women's equal rights.[26][27] Conversely, it might constrain affirmative measures favoring women, such as gender quotas in employment or education, by subjecting them to strict scrutiny without the deference afforded under current doctrine.[28] Privacy-related laws, including sex-segregated bathrooms, prisons, and shelters, could face invalidation if viewed as non-essential classifications, as argued by ERA critics who highlight causal risks to women's safety from compelled co-mingling.[25] Overall, the ERA's implications hinge on interpretive breadth: a literal reading would dismantle most remaining sex-based legal distinctions in areas like family law, property division, and public accommodations, fostering formal equality but potentially eroding sex-specific safeguards evolved from biological differences.[2] Legal debates persist, with some scholarship warning of unintended erosion of women's distinct protections, while others emphasize its role in preventing judicial rollback of sex equality amid shifting political majorities.[25][22]Historical Origins and Early Advocacy
Roots in Women's Suffrage and Early Proposals
The Equal Rights Amendment emerged directly from the women's suffrage movement following the ratification of the Nineteenth Amendment on August 18, 1920, which granted women the right to vote but left many legal inequalities intact, such as sex-based labor protections and property rights disparities. Leaders like Alice Paul, founder of the National Woman's Party (NWP) in 1916, argued that suffrage alone was insufficient to achieve full legal equality, viewing remaining sex-specific laws as discriminatory barriers rooted in outdated notions of female dependency.[29] Paul's advocacy stemmed from her experiences in the militant suffrage campaigns, including imprisonment and force-feeding during protests, which convinced her that constitutional guarantees beyond voting were essential to dismantle systemic sex discrimination.[15] In 1923, Paul and Crystal Eastman drafted the initial version of the ERA during a convention in Seneca Falls, New York, commemorating the 75th anniversary of the 1848 women's rights convention that had first articulated demands for legal equality.[10] The amendment's text read: "Men and women shall have equal rights throughout the United States and in every place subject to its jurisdiction," later revised to emphasize non-abridgment of rights on account of sex.[30] It was formally introduced in Congress that year by Senator Charles Curtis in the Senate and Representative Daniel R. Anthony Jr.—nephew of suffragist Susan B. Anthony—in the House, marking the first explicit federal proposal to constitutionally prohibit sex-based discrimination.[31] This timing reflected the NWP's strategic pivot post-suffrage, prioritizing an amendment to override state laws that treated women as a protected class rather than equals under the law.[32] Early proposals faced immediate resistance from within the suffrage coalition, as groups like the League of Women Voters prioritized protective legislation for working women over abstract equality, fearing the ERA would invalidate minimum wage and hour laws tailored to female labor.[33] Despite annual reintroductions from 1923 onward, the amendment garnered limited support in the 1920s and 1930s, with only six senators backing it by 1926, underscoring divisions between radical equality advocates and those favoring incremental reforms.[1] Paul's insistence on first-principles equality, uncompromised by special protections, positioned the ERA as a logical extension of suffrage's unfinished agenda, though it highlighted tensions between formal rights and practical socioeconomic considerations.[15]Interwar Period Developments (1923–1940s)
The Equal Rights Amendment (ERA) was drafted in 1923 by Alice Paul, chair of the National Woman's Party (NWP), and Crystal Eastman, and introduced to the 68th United States Congress on December 13, 1923, as Senate Joint Resolution No. 43 and House Joint Resolution No. 67.[15][2] The amendment's text stated: "Men and women shall have equal rights throughout the United States and in every place subject to its jurisdiction."[30] Despite annual reintroductions by NWP members in every congressional session from 1923 through the 1940s, the ERA received no committee hearings in the Senate and limited attention in the House, remaining bottled up in the Judiciary Committees.[31] Opposition to the ERA during the interwar period stemmed primarily from labor unions and progressive women's organizations, which prioritized sex-specific protective labor legislation, such as limits on women's working hours and prohibitions on night work, enacted in many states since the early 1900s.[34][35] Critics, including figures like Florence Kelley of the National Consumers League, argued that such laws safeguarded women from physical strain and exploitation, given biological differences in strength and reproductive roles, and feared the ERA would invalidate these measures, subjecting women to the same hazardous conditions as men.[36][34] Proponents, led by Paul and the NWP, countered that protective laws perpetuated discrimination by excluding women from higher-paying jobs and reinforcing stereotypes of female frailty, advocating instead for constitutional equality to eliminate all sex-based legal distinctions.[36] This divide deepened in the 1930s amid the Great Depression and New Deal policies, which expanded federal labor protections but maintained sex-specific exemptions in laws like the National Labor Relations Act.[35] By the early 1940s, amid World War II labor shortages that drew millions of women into the workforce, the ERA gained visibility through endorsements in major party platforms.[13] The Republican Party platform of 1940 explicitly favored submitting an equal rights amendment to the states, a position the Democratic Party adopted by 1944.[37][10] However, organized resistance intensified, with groups like the General Federation of Women's Clubs and the Women's Joint Congressional Committee lobbying against it, culminating in the formation of the National Committee to Defeat the Un-Equal Rights Amendment in 1944.[9][38] Congressional hearings in 1945 and 1946 highlighted ongoing tensions between equality advocates and defenders of protective statutes, but the ERA failed to advance beyond subcommittee consideration, reflecting persistent fears that uniform legal treatment would erode tailored safeguards for women.[39]Divisions Within Feminist Movements
Following the ratification of the Nineteenth Amendment in 1920, the women's suffrage victory revealed underlying fractures in the broader feminist movement, particularly over the proposed Equal Rights Amendment (ERA) introduced by Alice Paul and the National Woman's Party (NWP) in 1923.[9] The NWP, emphasizing individual legal equality, advocated for the ERA to eliminate all sex-based distinctions in law, viewing such measures as inherently discriminatory and obstructive to women's full citizenship.[40] This position clashed with social feminists, who prioritized protective legislation tailored to women's perceived physical vulnerabilities and family responsibilities, including state laws limiting women's work hours to ten per day and prohibiting night shifts or heavy lifting.[41] Social feminists, often aligned with labor unions like the Women's Trade Union League and figures such as Florence Kelley, argued that these protections were essential achievements of progressive reform, shielding working-class women from exploitation amid industrial hazards and long hours that could impair health and childbearing.[42] They contended that the ERA's blanket equality provision would invalidate such laws through judicial invalidation, as courts had begun striking down similar measures under equal protection doctrines, potentially forcing women into unsafe conditions without recourse.[41] Eleanor Roosevelt, emerging as a key voice in the 1930s, echoed this opposition, asserting that the ERA overlooked class realities and biological differences, prioritizing middle-class professional interests over the needs of wage-earning mothers.[43] The interwar debate intensified mutual accusations: equal rights advocates branded protective laws as patronizing relics that infantilized women and barred them from equal competition, while social feminists criticized the ERA as abstract individualism detached from material inequalities, likely benefiting employers by dismantling hard-won safeguards.[40] This rift manifested in congressional lobbying battles, with NWP members picketing Democratic conventions and labor groups blocking ERA inclusions in party platforms through the 1940s.[9] By 1940, despite wartime shifts toward women's workforce integration, the division endured, stalling federal ERA approval and highlighting a core tension between formal legal sameness and contextual differences in feminist strategies for advancement.[41]Mid-Century Revival and Political Dynamics
Post-World War II Momentum
Following World War II, the Equal Rights Amendment gained renewed attention amid widespread recognition of women's contributions to the wartime economy, where female labor force participation peaked at approximately 36% in 1945, prompting debates over extending legal equality beyond suffrage.[44] The National Woman's Party, led by figures like Alice Paul, sustained advocacy efforts, introducing the ERA in every congressional session and emphasizing its necessity to eliminate sex-based legal distinctions in areas such as property, divorce, and employment.[45] In July 1945, the House Judiciary Committee reported the ERA favorably, reflecting post-war momentum, but progress stalled due to organized opposition from labor unions and progressive groups fearing the amendment would invalidate state protective labor laws—such as limits on women's working hours and restrictions on hazardous jobs—that had been enacted since the early 20th century to shield women from exploitation.[46] This concern, articulated by American Federation of Labor representatives like Lewis Hines, prioritized causal preservation of sex-specific regulations over formal equality, viewing the ERA as a threat to hard-won worker safeguards.[46] The Senate floor debate in July 1946 exemplified this tension; the ERA received 38 votes in favor but fell short of the required two-thirds majority at 35 against, marking a narrow defeat amid lobbying by opponents including the National Committee to Defeat the Un-Equal Rights Amendment, which distributed critiques from figures like Eleanor Roosevelt arguing for continued protections.[31] [46] In response, alternatives like the 1947 Taft-Wadsworth Bill proposed limited equality measures while retaining special protections, influencing subsequent policy and diverting momentum from the pure ERA text.[46] By 1950, the Senate passed a version of the ERA attached to a rider that explicitly nullified its equal protection for labor laws, underscoring persistent resistance from organized labor and highlighting the amendment's challenge in reconciling formal rights with pragmatic economic safeguards.[31] Congressional hearings on the ERA persisted through the 1950s and into the 1960s, gradually building awareness of systemic sex discrimination, though ratification efforts remained dormant until broader civil rights shifts later accelerated support.[46]Party Shifts in Support and Opposition
The Equal Rights Amendment initially enjoyed bipartisan support, with the Republican Party becoming the first major party to endorse it in its 1940 platform, followed by the Democratic Party in 1944.[47] Both parties reaffirmed this commitment in subsequent platforms through the mid-20th century, reflecting broad consensus on the principle of sex-based equality under the law.[10] Congressional approval of the ERA on March 22, 1972, demonstrated continued bipartisanship, passing the House by a vote of 354–24 and the Senate 84–8, with support from majorities in both parties.[15] However, as ratification efforts progressed in the states during the 1970s, divisions emerged along ideological lines within the Republican Party, driven by concerns over potential consequences such as mandatory military conscription for women, erosion of sex-specific labor protections, and challenges to traditional family structures. Conservative activist Phyllis Schlafly played a pivotal role in galvanizing Republican opposition, founding the Stop ERA campaign in 1972 to argue that the amendment would disadvantage women by eliminating beneficial distinctions based on sex.[48] Her efforts mobilized a coalition of social conservatives, particularly within the Republican base, leading to the defeat of ratification in key states and influencing party dynamics. By 1980, the Republican National Convention's platform committee voted to remove explicit support for the ERA, endorsing equal rights principles through alternative means like enforcement of existing laws rather than constitutional amendment.[49][50] In contrast, the Democratic Party maintained consistent advocacy for the ERA throughout the 1970s and beyond, integrating it into its platform as part of broader civil rights and gender equality goals.[10] This divergence contributed to a emerging gender gap in electoral politics, with women voters increasingly aligning with Democrats amid the ERA debates of the 1980s.[51] The Republican shift reflected a broader realignment toward social conservatism, prioritizing protections for traditional roles over formal constitutional equality.[52]Impact of Second-Wave Feminism
Second-wave feminism, which gained momentum in the 1960s, played a central role in reviving and advancing the Equal Rights Amendment after decades of dormancy. Activists focused on dismantling legal barriers to women's equality in employment, education, and public life, viewing the ERA as essential for constitutional protection against sex-based discrimination. Betty Friedan's 1963 book The Feminine Mystique catalyzed awareness of women's unfulfilled potential beyond domestic roles, inspiring organizational efforts that prioritized the amendment.[53] The establishment of the National Organization for Women (NOW) in June 1966, co-founded by Friedan and others, elevated the ERA to the organization's top legislative goal, alongside abortion rights. NOW conducted nationwide lobbying, marches, and testimony before Congress, pressuring lawmakers amid broader civil rights advancements. This advocacy contributed to the House of Representatives passing the ERA on October 10, 1971, by a vote of 354–23, followed by Senate approval on March 22, 1972, with a 84–8 margin.[54][55] The movement's mobilization led to rapid initial ratifications, with 22 states approving the ERA within five months of congressional passage and 30 by the end of 1973, reflecting heightened public discourse on gender roles. Figures like Gloria Steinem, through Ms. magazine founded in 1972, amplified calls for ratification, framing the ERA as a cornerstone of women's liberation. However, this aggressive push also provoked a conservative backlash, exemplified by Phyllis Schlafly's STOP ERA campaign starting in 1972, which mobilized housewives concerned about mandatory military service for women and erosion of protective labor laws.[56][57] Critics, including legal scholars, later argued that the ERA's absolute prohibition on sex-based classifications could invalidate women-specific policies, such as single-sex bathrooms or affirmative actions favoring women, potentially undermining targeted protections rather than enhancing equality. While second-wave efforts succeeded in congressional approval and partial ratifications—achievements attributed to sustained grassroots pressure—the failure to secure the required 38 states by the 1982 deadline underscored strategic overreach and underestimation of cultural resistance to rapid legal changes. Empirical outcomes, such as subsequent court rulings under the Fourteenth Amendment providing many ERA-like protections without constitutional amendment, suggest the movement's impact was more in norm-shifting than in necessitating the ERA itself.[58][59]Congressional Approval and Initial Ratification
Passage in 1971–1972
Representative Martha Griffiths (D-MI) introduced H.J. Res. 208, proposing the Equal Rights Amendment, which stated: "Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress."[60] [61]
On October 12, 1971, the House of Representatives passed H.J. Res. 208 by a vote of 354 to 24, exceeding the two-thirds majority required for constitutional amendments, with bipartisan support including 96 Republicans and 258 Democrats voting in favor.[62] [61] [63] Griffiths's leadership was instrumental, as she had reintroduced the measure after earlier versions stalled, overcoming concerns about potential impacts on labor laws through procedural maneuvers.[62] [63]
The resolution then moved to the Senate, where debate focused on amendments that were ultimately rejected, preserving the original text.[64] On March 22, 1972, the Senate approved it by a vote of 84 to 8, again surpassing the two-thirds threshold with strong bipartisan backing—55 Democrats and 29 Republicans in favor—despite opposition from figures like Senator Sam Ervin (D-NC), who argued it could disrupt traditional family structures and state protections.[65] [64] [66] This passage marked the first time Congress had approved such a broad equality provision based on sex, reflecting momentum from second-wave feminism and shifting political attitudes toward gender roles, though the seven-year deadline embedded in the resolution would later prove contentious.[65] [60]
Early State Ratifications (1972–1977)
The Equal Rights Amendment (ERA) garnered rapid initial support from state legislatures following its congressional passage on March 22, 1972. Hawaii ratified it first, mere hours after Senate approval, on March 22, 1972.[67] Delaware and New Hampshire followed on March 23, 1972, with Idaho and Iowa ratifying on March 24, 1972.[68] This swift action reflected broad bipartisan enthusiasm in many states, particularly in the Northeast and West, where feminist organizations and labor unions lobbied effectively amid the momentum of second-wave feminism. By the end of March 1972, six additional states—including Kansas on March 28, Nebraska on March 29, and Texas on March 30—had approved the amendment, bringing the total to nine ratifications within the first week.[68][69] The pace continued through spring 1972, with 15 states ratifying by late April, including Alaska on April 5, Tennessee on April 4, West Virginia on April 22, and Wisconsin on April 26.[68] Further approvals followed in May and June, such as Maryland on May 26, New York on May 18, Michigan on May 22, Massachusetts on June 21, and Kentucky on June 27, pushing the count to 22 by the end of 1972.[68] These early ratifications occurred predominantly in Democratic-controlled legislatures, though some Republican-majority states like Delaware and New Hampshire also supported it, underscoring the amendment's initial cross-party appeal as a measure for constitutional equality without anticipated controversy over issues like labor protections or military service.[69] Ratifications slowed but persisted into 1973–1977, adding 13 more states to reach a total of 35 by the period's end. Notable approvals included Vermont on March 1, 1973; Wyoming on January 26, 1973; North Dakota on February 3, 1975; and Indiana on January 24, 1977.[68] However, early momentum faced setbacks from rescission attempts: Nebraska rescinded its ratification on March 15, 1973; Tennessee on April 23, 1974; and Idaho on February 8, 1977.[68] These actions, concentrated in Midwestern and Southern states, highlighted emerging opposition from conservative groups concerned about potential erosion of traditional gender roles and state-specific laws on alimony and exemptions from military drafts, though the legal validity of rescissions remained disputed.[15] Despite such challenges, the ERA fell short of the 38 states required for certification, with unratified holdouts including Alabama, Arizona, and Arkansas.[68]| Year | Number of Ratifications | Cumulative Total | Key States |
|---|---|---|---|
| 1972 | 22 | 22 | Hawaii, Delaware, New Hampshire, Idaho, Iowa, Kansas, Nebraska, Texas, Tennessee, Alaska, West Virginia, Wisconsin, Maryland, New York, Michigan, Massachusetts, California, Pennsylvania, Kentucky |
| 1973 | 6 | 28 | Vermont, New Mexico, Oregon, South Dakota, Washington, Wyoming |
| 1974–1976 | 3 | 31 | Montana (1974), Maine (1974), Ohio (1974), North Dakota (1975) |
| 1977 | 4 | 35 | Indiana (1977), and prior-year completions |
Ratification Deadline and Extension Efforts
 Congress submitted the Equal Rights Amendment to the states for ratification on March 22, 1972, with a deadline of seven years from that date, expiring on March 22, 1979.[2][3] This time limit was specified in the congressional resolution proposing the amendment, rather than in the amendment text itself.[3] By early 1979, 35 states had ratified the ERA, falling short of the 38 required for adoption.[2] With ratification efforts stalling, ERA supporters lobbied Congress for an extension. On October 6, 1978, prior to the original deadline, both the House and Senate passed H.J. Res. 638 by simple majorities, extending the deadline by 39 months to June 30, 1982.[70] President Jimmy Carter signed the resolution into law on October 20, 1978.[67] The extension aimed to provide additional time for unratified states, particularly in the South and Midwest, to reconsider amid ongoing campaigns by feminist organizations.[67] The extension faced immediate legal and procedural challenges. Critics, including opponents like Phyllis Schlafly's Eagle Forum, contended that Congress could not unilaterally alter the ratification terms after submission to the states, arguing the original seven-year limit was binding.[71] Legal scholars debated whether the deadline's placement in the proposing clause rendered extensions invalid, with some states like Idaho filing lawsuits claiming the measure exceeded congressional authority under Article V of the Constitution.[3] Despite the extension, no additional states ratified the ERA by June 30, 1982, leaving it three states short.[2]Challenges to Ratification Process
State Rescissions and Their Validity
Five states passed resolutions to rescind their prior ratifications of the Equal Rights Amendment between 1973 and 1979: Nebraska on March 15, 1973; Tennessee on April 23, 1974; Idaho on February 8, 1977; Kentucky on March 20, 1978; and South Dakota on March 5, 1979.[68] These actions reduced the effective ratification count from a peak of 35 states in 1977 to 30, according to opponents of the ERA who viewed the rescissions as legally effective.[1] Proponents, however, maintained that the rescissions were invalid, arguing that state ratifications under Article V of the Constitution are irrevocable once formally submitted to the federal government.[72] Article V specifies that constitutional amendments require ratification by the legislatures of three-fourths of the states but is silent on the permissibility of rescission before that threshold is met.[73] Historical precedents are inconsistent: during the ratification of the Fourteenth Amendment in 1868, Congress disregarded rescission attempts by Ohio and New Jersey, counting their initial approvals toward the required total; similar treatment occurred for some rescissions during the Fifteenth Amendment process.[74] In contrast, Secretary of State William Seward accepted a rescission by New Jersey for the Fourteenth Amendment in 1868, though Congress later overrode this by joint resolution.[75] A 1973 Department of Justice memorandum concluded that a state cannot rescind ratification after an amendment's adoption but left open the question prior to three-fourths ratification, emphasizing that any such power would derive from congressional practice rather than constitutional text.[72] The General Services Administration, responsible for tracking ERA ratifications in the 1970s, initially treated rescissions as ineffective, continuing to count rescinding states as ratified.[15] This stance prompted litigation, including Idaho v. Freeman (1982), where a federal district court ruled that Idaho's rescission was valid under principles allowing legislative reversal of non-final actions, though the ruling's precedential value was limited as the case became moot after the extended 1982 deadline expired without further ratifications.[15] No Supreme Court decision has resolved the issue, leaving the validity of ERA rescissions unsettled; a 2018 Office of Legal Counsel opinion noted that Congress would need to determine their effect before certifying the amendment, even absent deadline constraints.[76] In practice, the National Archives has not altered its records to reflect rescissions as effective, preserving the original 35-state count for historical purposes.[68]Deadline Disputes and Congressional Actions
![Photograph of Jimmy Carter signing the ERA extension][float-right] The Equal Rights Amendment, proposed by Congress on March 22, 1972, included a seven-year ratification deadline set to expire on March 22, 1979, as specified in the proposing resolution rather than the amendment text itself.[77] With only 35 states having ratified by early 1979, Congress passed H.J. Res. 638 in October 1978 by simple majorities in both houses—233–189 in the House and 60–37 in the Senate—extending the deadline to June 30, 1982; President Jimmy Carter signed it into law on October 20, 1978.[3] [78] No additional states ratified during the extended period, leaving the ERA three states short of the required 38.[2] Disputes arose over the enforceability of the deadline, with ERA proponents arguing that Article V of the Constitution grants Congress discretion over procedural conditions like time limits, but does not make them binding, citing historical precedents where amendments were ratified after proposed deadlines, such as the 27th Amendment ratified in 1992 after 203 years.[15] Opponents, including the Department of Justice's Office of Legal Counsel (OLC), maintained in a 2020 opinion that the ERA expired upon the deadline's passage, as Congress's inclusion of a time limit indicated intent to make it conditional, and post-deadline revivals would undermine the Article V process.[78] The 1978 extension itself faced challenges for using simple majorities rather than the two-thirds vote required for proposing amendments, leading federal courts in 1982 to rule it invalid in cases like Idaho v. Freeman, though these decisions did not resolve broader ratification questions.[79] Post-1982, Congress has taken no successful action to further extend or remove the deadline, but recent efforts include the House passing H.J. Res. 17 on March 17, 2021, by a 232–192 vote to retroactively eliminate the time limit and direct the Archivist to certify ratification based on prior state actions.[80] Similar measures, such as H.J. Res. 25 in the 118th Congress (2023–2024), sought to declare the ERA valid without the deadline, passing the House but stalling in the Senate.[77] These resolutions reflect ongoing partisan divides, with supporters viewing deadlines as non-jurisdictional and opponents, per OLC guidance, arguing that an expired proposal cannot be revived without restarting the Article V process, a position reinforced by federal courts dismissing related lawsuits.[73] [3]Legal Precedents on Time Limits
In Dillon v. Gloss (1921), the U.S. Supreme Court established that Congress holds the implied authority under Article V to impose reasonable time limits on the ratification of proposed constitutional amendments, even though the Constitution itself contains no such explicit provision, as a means to promote the contemporaneity of state legislative actions.[81] The Court upheld a seven-year deadline for the Eighteenth Amendment, deeming it a reasonable duration that aligned with the amendment process's underlying principles of timely popular consent.[82] This precedent has been cited in subsequent analyses of amendment deadlines, including for the ERA, where Congress included a seven-year limit in the proposing resolution (H.J. Res. 208) that expired on March 22, 1979.[83] The Supreme Court further addressed timeliness in Coleman v. Miller (1939), ruling that determinations of whether a proposed amendment remains viable after a prolonged period—absent a fixed deadline—constitute nonjusticiable political questions reserved to Congress, which has ultimate supervisory authority over the ratification process.[84] For amendments like the ERA, where the deadline appeared in the congressional proposing resolution rather than the amendment text itself, this has fueled debate over enforceability; however, lower courts have generally treated such deadlines as binding instructions from Congress. In 1979, Congress attempted to extend the ERA deadline by three years to June 30, 1982 (H.J. Res. 638), but several federal district courts subsequently deemed the extension invalid as an improper alteration of the original proposal, though the Supreme Court declined to review these rulings.[18] Post-1982 challenges to late ERA ratifications have reinforced the deadline's practical effect in judicial decisions. In Virginia v. Ferriero (D.D.C. 2020), the U.S. District Court for the District of Columbia held that Virginia's 2020 ratification was invalid because the 1982 deadline had lapsed without further congressional action, dismissing a suit to compel the Archivist of the United States to certify the ERA.[3] The U.S. Court of Appeals for the D.C. Circuit affirmed related aspects in companion litigation, emphasizing that courts defer to congressional deadlines unless Congress explicitly removes or ignores them.[3] A 2020 memorandum from the Department of Justice's Office of Legal Counsel concluded that the ERA expired upon the deadline's passage and that post-deadline ratifications could not revive it without new congressional approval, a position reaffirmed in 2024 by the National Archives and Records Administration.[85] No Supreme Court decision has directly invalidated or upheld post-deadline ERA ratifications, leaving the issue partially in congressional hands per Coleman.[86]Post-Deadline Ratification Attempts
The Three-State Strategy (2017–2020)
The three-state strategy, formulated in the 1990s but actively pursued from 2017 onward, sought to secure ratification of the Equal Rights Amendment (ERA) by obtaining approvals from three additional states beyond the 35 that had ratified by 1977, arguing that the 1982 congressional deadline was non-binding or removable via legislation.[87] Proponents contended that Article V of the Constitution imposes no time limits on ratification, rendering the ERA viable despite the elapsed period, and lobbied state legislatures while advocating for congressional action to eliminate the deadline through resolutions like Senate Joint Resolution 5.[88] This approach faced criticism for disregarding historical precedent, as no amendment has been ratified after such a prolonged delay, and for ignoring prior state rescissions that reduced the effective count below 35.[1] On March 21, 2017, Nevada became the 36th jurisdiction to ratify the ERA, passing Senate Joint Resolution 2 under Democratic control of the legislature, 45 years after congressional approval.[89] Advocates highlighted this as reviving momentum, though opponents noted Nevada's ratification occurred without addressing the expired deadline or the constitutionality of post-deadline actions.[18] Illinois followed on May 30, 2018, approving House Joint Resolution 4 by a vote of 72–45 in the House and 37–11 in the Senate, becoming the 37th state and joining Nevada in challenging the Archivist of the United States to certify the ERA.[15] The state's action explicitly affirmed that the ratification deadline was invalid under Article V, a position supported by legal scholars but contested by constitutional experts citing Congress's authority to set conditions.[3] Virginia's ratification on January 15, 2020, marked the culmination of the strategy, with the Democratic-majority General Assembly passing House Joint Resolution 1 (89–53 in the House) and Senate Joint Resolution 2 (21–17 in the Senate), purportedly reaching the 38-state threshold.[15] Immediately following, Virginia, Illinois, and Nevada filed suit against Archivist David Ferriero in U.S. District Court for the District of Columbia, demanding certification of the ERA as the 28th Amendment, though the case was dismissed in 2021 on grounds that the deadline had lapsed and Congress had not removed it.[90] Despite these efforts, the strategy did not result in official adoption, as the Department of Justice's Office of Legal Counsel advised against certification due to the time limit and unresolved rescissions from states like Idaho and Kentucky.[3]Later Ratifications and Reconsiderations
No additional states ratified the Equal Rights Amendment after Virginia became the 38th state to do so on January 27, 2020.[3] Legislative efforts to secure further ratifications in the 12 remaining unratified states—Arizona, Arkansas, Florida, Georgia, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Texas, and Alabama—continued through 2025 but failed to produce approvals.[18] For instance, bills were introduced in Arizona and Georgia legislatures in multiple sessions from 2021 onward, often advancing in committees but stalling in full chambers due to partisan opposition and concerns over potential impacts on existing sex-based distinctions in law, such as those in military draft requirements or family policies.[18] In states that had previously ratified, some reconsiderations emerged, primarily aimed at clarifying or retracting prior actions amid debates over the amendment's post-deadline viability. On February 11, 2022, the West Virginia Senate unanimously adopted Senate Concurrent Resolution 48, rescinding the state's original 1972 ratification and declaring it invalid due to the 1979 deadline expiration, with lawmakers citing the need to affirm legislative intent against retroactive validation.[91] The resolution, which passed by voice vote among attending senators, did not advance to the House of Delegates for concurrence and thus lacked full legislative effect.[92] This action reflected broader conservative skepticism toward ERA revival efforts, particularly following the Supreme Court's 2022 Dobbs v. Jackson Women's Health Organization decision, which some linked to fears that the amendment could constitutionally entrench expansive interpretations of sex equality affecting abortion regulations.[93] No verified instances of states reversing prior rescissions or reaffirming ratifications occurred post-2020, though advocacy groups continued pressing unratified states without success.[69] These developments underscored persistent divisions, with empirical ratification thresholds unmet and legal uncertainties reinforcing the amendment's stalled status absent congressional intervention on the deadline.[3]Congressional Reintroduction Efforts (2021–2025)
In the 117th Congress (2021–2022), House Joint Resolution 17 (H.J.Res. 17) was introduced on February 3, 2021, by Representative Jackie Speier (D-CA) to eliminate the ratification deadline for the 1972 Equal Rights Amendment (ERA).[94] The resolution passed the House of Representatives on February 23, 2021, by voice vote under suspension of the rules, reflecting support from ERA proponents who argued that the deadline was a non-essential congressional imposition not specified in Article V of the Constitution. A companion Senate Joint Resolution 1 (S.J.Res. 1), introduced by Senator Ben Cardin (D-MD) on February 8, 2021, was referred to the Senate Committee on the Judiciary but received no further action, stalling the effort amid debates over the validity of post-deadline state ratifications. During the 118th Congress (2023–2024), similar momentum continued with H.J.Res. 25, introduced on January 9, 2023, by Representative Ayanna Pressley (D-MA), affirming that the ERA had achieved ratification by three-fourths of the states following late approvals in Nevada (2017), Illinois (2018), and Virginia (2020).[77] The measure, cosponsored by over 140 representatives, was referred to the House Committee on the Judiciary on January 31, 2023, where it remained pending without a vote, as procedural hurdles and opposition questioning the amendment's timeliness prevented advancement. Senate efforts paralleled this, with S.J.Res. 4 introduced by Senator Cardin, but it too stalled in committee, highlighting persistent divisions on whether congressional action could retroactively validate expired ratifications without a fresh proposal. In the 119th Congress (2025–), H.J.Res. 80 was introduced on March 24, 2025, by Representative Pressley to formally establish the ERA's ratification, building on prior deadline-removal attempts and coinciding with Equal Pay Day observances.[95] A bicameral push involving Pressley and Senator Lisa Murkowski (R-AK) reintroduced resolutions affirming ERA support and seeking to nullify the 1972 deadline, garnering bipartisan cosponsors but facing early referral to committees without reported floor consideration as of October 2025.[96] These initiatives marked a shift from earlier "start-over" bills proposing a new ERA text—last routinely introduced before 2023—toward validating the original amendment, though critics contended such moves bypassed constitutional norms on time limits and rescissions by states like Idaho and Kentucky.[97] No start-over legislation appeared in the 118th or 119th Congresses, reflecting strategic focus on archival and judicial validation over restarting the process.[97]Ongoing Legal and Executive Developments
Key Lawsuits on Ratification Validity
In State of Idaho ex rel. Evans v. Freeman, filed in 1981 in the U.S. District Court for the District of Idaho, the state challenged the validity of its own 1978 legislative rescission of the 1972 ratification of the ERA, alongside objections from Arizona and other entities to Congress's 1979 extension of the original seven-year ratification deadline to June 30, 1982.[98][99] The court dismissed the case on justiciability grounds under Article V of the Constitution, ruling that federal courts lack jurisdiction over state ratification or rescission processes, as these are political questions reserved to Congress; a stay by the Supreme Court followed, but the case did not resolve the substantive validity of rescissions or extensions.[98] This decision reinforced prior precedents like Coleman v. Miller (1939), emphasizing congressional authority over ratification timelines without judicial override.[100] A related challenge emerged in the same litigation against the extension's constitutionality, arguing it altered the proposing resolution's terms and violated Article V by imposing a new deadline without fresh congressional proposal; however, the district court's justiciability dismissal preempted a merits ruling, leaving the extension's effects unadjudicated in court, though the Office of Legal Counsel later opined in 2020 that such extensions do not retroactively validate post-deadline actions.[78][99] No subsequent federal ruling has overturned the extension's procedural validity, but it failed to secure the required 38 states before expiring, with 35 ratifications counted at that point.[3] More recently, Virginia v. Ferriero, initiated in January 2020 in the U.S. District Court for the District of Columbia by Virginia (joined by Illinois and Nevada), sought a writ of mandamus to compel Archivist David Ferriero to certify the ERA as the 28th Amendment following Virginia's January 27, 2020, ratification, claiming the 1982 deadline was invalid as not embedded in the amendment text itself per Article V.[90][101] The district court dismissed the suit in March 2021, holding the states lacked standing due to no concrete injury and that the Archivist had no nondiscretionary duty to certify without congressional direction, as the ERA remained unratified per the expired deadline.[102][103] The U.S. Court of Appeals for the D.C. Circuit affirmed the dismissal in February 2023, rejecting arguments that the deadline was merely precatory and affirming Congress's authority to impose time limits, as upheld in precedents like Dillon v. Gloss (1921); the court declined to order certification, noting the ERA's ratification window had closed with only 35 valid states.[104][105] The Supreme Court denied certiorari in October 2023, leaving the three post-1982 ratifications (Nevada 2017, Illinois 2018, Virginia 2020) unrecognized federally, consistent with the Department of Justice's 2020 determination that deadlines bind ratification validity.[78][85] These rulings underscore that Article V grants Congress, not courts or executives, final say on ratification completion, with deadlines enforceable as political constraints absent explicit textual inclusion.[6]Executive Statements and Archival Positions
President Jimmy Carter signed H.J. Res. 638 on October 20, 1979, extending the Equal Rights Amendment's ratification deadline from March 22, 1979, to June 30, 1982, in an effort to allow additional time for the required 38 states to approve it.[2] This action followed Congress's approval of the extension, though it faced legal challenges questioning Congress's authority to impose or alter time limits originally set by Congress itself. Subsequent presidents expressed varied positions, with Ronald Reagan opposing the ERA during his 1980 campaign and presidency, arguing it would undermine traditional family structures and state protections for women.[31] In contrast, Bill Clinton supported ratification efforts in the 1990s, though no further states ratified before or after the extended deadline.[21] On January 17, 2025, President Joe Biden issued a statement declaring the ERA the "law of the land" as the 28th Amendment, claiming it had met ratification requirements through 38 states, including post-1979 approvals, and urging its inclusion in the Constitution despite the expired deadline.[106] This assertion, however, holds no legal effect, as executive declarations cannot unilaterally amend the Constitution or override congressional deadlines and judicial precedents.[107][108] The National Archives and Records Administration, tasked with certifying ratified amendments, has consistently held that the ERA remains unratified. On December 17, 2024, Archivist Colleen Shogan stated that the ERA "cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions," citing the expired 1982 deadline, five state rescissions deemed valid by courts, and the absence of congressional action to revive it.[85] This position aligns with precedents like Idaho v. Freeman (1982), which affirmed time limits and rescission validity, and underscores that certification requires verifiable compliance with Article V processes, not executive fiat. The Archives maintains custody of ERA documents but will not publish it without requisite ratification, rebuffing Biden's declaration as insufficient to alter its archival status.[109]Status as of 2025
As of October 2025, the Equal Rights Amendment (ERA) remains uncertified as the 28th Amendment to the U.S. Constitution, despite ratifications by 38 states, including Virginia as the 38th on January 27, 2020.[85] The National Archives and Records Administration affirmed on December 17, 2024, that certification is precluded by the expired ratification deadline of June 30, 1982, unresolved state rescissions from the 1970s, and established judicial precedents on time limits for amendments.[85][110] These procedural barriers, rooted in congressional imposition of the deadline via the 1972 proposing resolution and upheld in cases like Idaho v. Freeman (1982), override arguments that Article V of the Constitution permits indefinite ratification periods absent explicit textual limits.[110] In January 2025, outgoing President Joe Biden issued a statement declaring the ERA the "law of the land," urging its publication despite the deadline, but this executive assertion lacks binding legal force and does not alter the Archivist's certification role under 1 U.S.C. § 106b.[21] Congressional efforts persisted into the 119th Congress, with H.J.Res. 80 and S.J.Res. 38 introduced in 2025 to retroactively establish ratification by removing the deadline and affirming the 38 states, alongside a March 25, 2025, bicameral resolution by Rep. Ayanna Pressley and Sen. Lisa Murkowski supporting implementation.[95][111][96] None of these measures had advanced to enactment by October 2025, reflecting ongoing partisan divides and the absence of supermajorities needed for procedural overrides.[18] Key lawsuits, including a 2023–2025 California federal challenge seeking to compel certification, have not yielded rulings validating post-deadline ratifications, with courts deferring to congressional intent on time constraints as in United States v. Foster (1938) and subsequent precedents.[110] Proponents' claims of rescission invalidity under first-in-time ratification rules remain untested at the Supreme Court level, while empirical critiques highlight that existing 14th Amendment equal protection jurisprudence has substantively advanced sex discrimination remedies without ERA-specific text, as evidenced by decisions like Reed v. Reed (1971) and United States v. Virginia (1996).[112] Thus, the ERA's legal viability hinges on future congressional removal of barriers or a constitutional reinterpretation, neither realized as of late 2025.[85]Arguments For and Against Adoption
Proponents' Claims and Evidence
Proponents argue that the Equal Rights Amendment (ERA) is necessary to embed an explicit prohibition against sex discrimination in the U.S. Constitution, as the Equal Protection Clause of the Fourteenth Amendment has been interpreted to subject sex-based classifications to only intermediate scrutiny rather than the strict scrutiny applied to race or religion.[22] This doctrinal distinction, originating in Craig v. Boren (1976), permits governments to maintain sex-specific policies if they serve important objectives and remain substantially related to achieving them, allowing outcomes like the Supreme Court's upholding of male-only draft registration in Rostker v. Goldberg (1981).[22] Under the ERA, advocates claim, courts would apply strict scrutiny to all sex-based laws, placing the burden on the government to demonstrate a compelling interest and narrow tailoring, thereby invalidating most differential treatments and providing robust protection against arbitrary discrimination.[15][22] Proponents cite persistent empirical disparities, such as the uncontrolled gender pay gap—where women working full-time earned median weekly wages of 83.6% of men's in 2023—as indicative of systemic issues that statutory laws like the Equal Pay Act of 1963 have failed to fully eradicate without constitutional reinforcement.[113][15] They further contend that the ERA would safeguard against erosion of gains from legislation such as Title IX (1972) or court precedents amid shifting judicial or political landscapes, ensuring long-term equity in domains including employment, education, military service, and public benefits.[22][15] This explicit textual mandate, proponents assert, would particularly benefit marginalized subgroups like women of color and LGBTQ+ individuals facing compounded discrimination, by elevating sex as a suspect classification on par with others.[22] Evidence of viability includes recent state ratifications—Nevada in 2017, Illinois in 2018, and Virginia in 2020—culminating the required 38 states, alongside polls showing 85% public support for congressional passage of the ERA.[15][114] Advocates from organizations like the American Association of University Women emphasize that without the ERA, reliance on "patchwork" protections leaves equality vulnerable to reversal, underscoring the amendment's role in institutionalizing causal accountability for discriminatory outcomes.[22]Opponents' Concerns and Empirical Critiques
Opponents of the Equal Rights Amendment (ERA), prominently including activist Phyllis Schlafly, argued that its broad language—"Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex"—would invalidate longstanding sex-specific legal protections benefiting women, such as exemptions from compulsory military service and labor regulations limiting women's hours or physical demands in hazardous jobs.[115] Schlafly contended that these distinctions recognized biological differences and family roles, warning that the ERA would compel equal treatment in conscription, potentially drafting women into combat roles during wartime, a concern rooted in the amendment's prohibition on any abridgment of rights based on sex.[48] Critics noted that pre-ERA Supreme Court rulings, like Rostker v. Goldberg (1981), upheld male-only registration under the Military Selective Service Act by citing women's traditional non-combat roles, a deference the ERA's strict scrutiny standard would likely overturn.[52] Empirical critiques highlight that state-level equal rights provisions, adopted in 23 states by 2022, have not demonstrably accelerated gender equality outcomes beyond federal protections like Title VII of the Civil Rights Act of 1964 or the Fourteenth Amendment's equal protection clause.[116] For instance, gender pay gaps and workforce participation rates in ERA states such as California and New York track national trends without unique advancements attributable to constitutional sex equality mandates, suggesting redundancy and potential for judicial overreach without causal improvements in women's socioeconomic status.[58] Opponents further argued that the ERA could prohibit affirmative measures addressing sex-based disparities, such as women-only scholarships or health programs, by barring government action "on account of sex," thereby endangering targeted remedies that have empirically narrowed gaps in education and employment.[58] Schlafly and groups like the Eagle Forum emphasized unintended expansions of federal power, predicting the ERA would federalize issues like education and family law, eroding state autonomy and traditional protections for homemakers in divorce settlements or widow's benefits, which historically presumed male breadwinner roles.[115] Critiques point to historical parallels in state ERAs, where challenges to single-sex institutions—such as Mississippi University for Women being deemed unconstitutional in United States v. Virginia (1996) under intermediate scrutiny—intensify under a federal ERA's anticipated higher standard, potentially dissolving women-specific safe spaces without evidence of reciprocal benefits for female advancement.[55] These concerns underscore a causal view that erasing sex-based classifications overlooks empirical differences in physical capabilities and societal roles, risking policies that disadvantage women in practice despite nominal equality.[58]Unintended Consequences and Historical Parallels
Opponents of the Equal Rights Amendment, including activist Phyllis Schlafly, warned that its ratification would compel the inclusion of women in military conscription and combat assignments by prohibiting sex-based classifications in law. Schlafly's Eagle Forum contended that the ERA's mandate for equal treatment would invalidate selective service restricted to men, as affirmed by the Supreme Court in Rostker v. Goldberg (1981) under existing equal protection standards allowing intermediate scrutiny for sex distinctions. Without the ERA, Congress retained flexibility to exempt women from the draft based on traditional roles; ratification would impose strict scrutiny, potentially forcing either universal conscription or its abolition to comply with nondiscrimination principles.[117][118] A further concern raised was the amendment's potential to nullify state and federal protective labor laws tailored to women's physical differences, such as limits on night work, maximum hours, or hazardous occupations. In the 1920s and 1970s debates, labor advocates and ERA critics argued that these statutes, upheld in cases like Muller v. Oregon (1908), safeguarded women from exploitation while recognizing biological realities; the ERA's blanket equality provision could subject such measures to invalidation as discriminatory. Proponents of protective legislation, including some women's groups, feared employers would exploit the change to impose uniform standards, eroding gains from Progressive Era reforms without commensurate benefits in wages or conditions.[119][120] Additional argued consequences included disruptions to family law preferences, such as alimony or child custody biases favoring women, and mandates for unisex public facilities, which Schlafly claimed would undermine privacy and traditional homemaking roles. These predictions stemmed from interpretations of the ERA's text—"Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex"—as overriding gender-specific exemptions in areas like insurance rates or sports segregation. While some effects, like women's combat integration, occurred legislatively post-2015 without the ERA, critics maintained constitutional entrenchment would preclude future reversals or accommodations for sex differences.[117][121] The ERA controversy parallels earlier fissures within the women's rights movement, particularly the 1920s opposition from working-class advocates and unions who prioritized protective labor codes over abstract equality, mirroring Schlafly's later emphasis on practical privileges for women. This divide echoed debates preceding the 19th Amendment, where suffragists like Alice Paul pushed for broad rights expansions despite warnings of societal upheaval, including family instability and workforce displacement for men. Both eras highlighted tensions between formal legal equality and policies acknowledging sexual dimorphism, with initial ERA resistance in 1923 foretelling the 1970s mobilization against perceived overreach. State-level equal rights provisions, adopted in 22 states by 1972, offer limited analogs; for instance, courts in Pennsylvania and New Mexico have struck sex-based laws under state ERAs, but without widespread evidence of the dire outcomes forecasted federally, though broader national application might amplify interpretive risks.[120][119]State and Comparative Equal Rights Frameworks
Adoption of State-Level ERAs
Several U.S. states have adopted provisions in their constitutions prohibiting discrimination on the basis of sex, often modeled after or inspired by the federal Equal Rights Amendment (ERA) proposal, though varying in scope and language. These state-level equal rights amendments (ERAs) or gender equality provisions emerged in two main waves: a small number in the late 19th and early 20th centuries during statehood or constitutional revisions, and a larger surge in the 1970s amid national ERA advocacy, with sporadic additions since. As of 2025, at least 20 states include such protections, typically ratified through legislative processes requiring voter approval via referendum in most cases.[116]) The earliest adoptions occurred in Western states granting women suffrage and rights during territorial or early statehood phases. Wyoming's constitution, effective July 10, 1890, includes a provision stating that "both male and female citizens of this state shall equally enjoy all civil, political and religious rights and privileges." Utah's constitution, adopted January 4, 1896, similarly guarantees equality under state law irrespective of sex. These provisions predated the federal ERA's introduction by decades and were often tied to broader equality guarantees rather than standalone ERAs.[116] A significant expansion followed the federal ERA's congressional passage in 1972, prompting states to enact parallel measures independently. Comprehensive state ERAs—mirroring the federal text by broadly prohibiting denial of rights on account of sex—were adopted in Alaska (effective 1972), Hawaii (1972), Illinois (1970, predating federal but aligned), Montana (1972), and Washington (1972). Other states added narrower gender equality provisions, such as Pennsylvania (1971), Virginia (1971), Colorado (1972), Maryland (1972), Texas (1972), Minnesota (1972), New Mexico (1973), New Hampshire (1974), and Connecticut (1974, comprehensive). Massachusetts followed in 1976 with a provision barring sex-based discrimination in rights enjoyment. These were typically proposed by legislatures and approved by voters, reflecting contemporaneous debates over women's legal status.[116] Later adoptions include Iowa's gender equality provision (1998) and Nevada's comprehensive ERA (approved by voters November 8, 2022, effective thereafter). New York voters approved Proposal 1 on November 5, 2024, amending the state constitution to prohibit denial of equal protection based on sex, among other categories, via a ballot measure following legislative referral in 2022 and 2023; it took effect upon certification post-election. These provisions generally apply strict scrutiny to sex-based classifications under state law, though their enforceability varies by judicial interpretation.[116])| State | Type | Adoption Year |
|---|---|---|
| Wyoming | Gender equality | 1890[116] |
| Utah | Gender equality | 1896[116] |
| Illinois | Comprehensive ERA | 1970[116] |
| Pennsylvania | Gender equality | 1971[116] |
| Virginia | Gender equality | 1971[116] |
| Alaska | Comprehensive ERA | 1972[116] |
| Colorado | Gender equality | 1972[116] |
| Hawaii | Comprehensive ERA | 1972[116] |
| Maryland | Gender equality | 1972[116] |
| Minnesota | Gender equality | 1972[116] |
| Montana | Comprehensive ERA | 1972[116] |
| Texas | Gender equality | 1972[116] |
| Washington | Comprehensive ERA | 1972[116] |
| New Mexico | Gender equality | 1973[116] |
| New Hampshire | Gender equality | 1974[116] |
| Connecticut | Comprehensive ERA | 1974[116] |
| Massachusetts | Gender equality | 1976[116] |
| Iowa | Gender equality | 1998[116] |
| Nevada | Comprehensive ERA | 2022[116] |
| New York | Equal protection (includes sex) | 2024) |