The Equal Rights Amendment: A Century-Long Fight for Constitutional Equality Remains Unresolved
The Equal Rights Amendment (ERA), a proposed amendment to the U.S. Constitution designed to guarantee equal legal rights for all American citizens regardless of sex, has been a subject of intense debate and legal wrangling for over a century. First conceived in 1923, the ERA has seen periods of fervent support, significant setbacks, and renewed hope, yet remains absent from the Constitution. Despite meeting the constitutional threshold for ratification with 38 states endorsing it, its inclusion in the nation’s supreme law remains elusive.
On March 22, 1972, a pivotal moment arrived when the U.S. Senate passed the ERA, sending it to the states for ratification. The expectation was that it would soon become the 28th Amendment, solidifying gender equality in the very foundation of American law. This wave of optimism coincided with the second-wave feminist movement, a period characterized by women challenging traditional roles, advocating for equal rights, and making significant strides in politics and society. Figures like Shirley Chisholm, who boldly ran for president, and Gloria Steinem, a prominent feminist icon, symbolized the era’s push for equality.
However, unlike other constitutional amendments, the ERA was subjected to a ratification deadline. Initially set for seven years, the deadline was later extended to 1982. By that time, 35 states had ratified the amendment, still three short of the required 38. This deadline ultimately became a central point of contention, casting a shadow over the amendment’s future.
The original version of the ERA, known as the Lucretia Mott Amendment, was simple yet profound: "Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction. Congress shall have the power to enforce this article by appropriate legislation." In 1943, the wording was revised and the amendment was renamed the Alice Paul Amendment, in honor of the prominent suffragist. The revised version stated: "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex."
Alice Paul, a key figure in the women’s suffrage movement and a tireless advocate for gender equality, dedicated her life to the cause. She drafted the first version of the ERA in 1923, just three years after women gained the right to vote after a 70 year struggle. Despite her unwavering commitment, Paul did not live to see the amendment enshrined in the Constitution. In 1972, after Congress passed the ERA and sent it to the states for ratification, representatives from the National Organization for Women New Jersey visited Paul, only to find her in tears, fearing that the necessary number of states would not ratify it.
In recent years, the ERA has experienced a resurgence of support. Nevada ratified the ERA in 2017, followed by Illinois in 2018, and Virginia in 2020, bringing the total number of ratifying states to 38, the constitutional threshold. Supporters, including President Joe Biden, have declared the ERA as law. Yet, it remains absent from official versions of the Constitution.
Several arguments have been raised against the ERA’s necessity and potential impact. Some argue that existing constitutional amendments, particularly the 14th Amendment, already provide sufficient legal protection against gender discrimination. The 14th Amendment guarantees equal protection under the law for all citizens.
Opponents also voice concerns that the ERA could have unintended consequences. Some worry that it could eliminate laws specifically designed to protect women, while others fear it could be used to undermine abortion rights or mandate gender-neutral public facilities. The potential for women to be included in a military draft is another concern raised by opponents.
Despite these arguments, proponents of the ERA maintain that it is essential to explicitly enshrine gender equality in the Constitution. They argue that doing so would provide a clear and unequivocal legal foundation for women’s rights, ensuring that they are treated equally in all aspects of life.
The legal status of the ERA remains contested. A 2020 memo from the Department of Justice’s Office of Legal Counsel stated that the ERA had failed to secure the necessary ratifications within the prescribed deadlines and therefore was no longer pending before the states. This position was reinforced in 2024 when the National Archives announced it would not add the ERA to the Constitution, citing the 2020 memo and a subsequent memo in 2022.
Advocates for the ERA dispute the validity of the deadline and argue that the amendment should be recognized as part of the Constitution. They point out that the ERA is the only amendment in U.S. history to have been given a time limit for ratification and emphasize that the people have spoken through the ratification by 38 states.
While the battle for federal recognition continues, some states have taken matters into their own hands. States including California, Washington, Oregon, Texas, Utah, Nevada, Colorado, New Mexico, Pennsylvania, Iowa, Florida, Massachusetts, Virginia, and Delaware have their own Equal Rights Amendments in their state constitutions, providing additional legal protections against gender discrimination.
The struggle for the ERA continues, underscoring the enduring complexities of achieving full gender equality in the United States. Whether it will eventually be recognized as the 28th Amendment remains to be seen. The debate over the ERA reflects fundamental questions about gender roles, legal interpretation, and the meaning of equality in American society.
