Wall Street Journal: House Votes to Eliminate Deadline on Adding ERA to Constitution

WALL STREET JOURNAL, NATALIE ANDREWS

The House voted to eliminate the deadline for adding the Equal Rights Amendment to the Constitution, though the court battle continues over the validity of the ratification time limit Congress once set.

The resolution passed Thursday by a vote of 232-183, with five Republicans joining the Democratic majority. It isn’t likely to be taken up in the GOP-led Senate, where it has limited Republican support.

“This is an historic day. A happy day as the House takes action to move our nation closer to the founding—our founding ideal that all are created equal,” House Speaker Nancy Pelosi (D., Calif.) said on the House floor. The speaker, who isn’t required to vote, cast a vote in favor of the resolution.

The effort to pass the ERA has seen a revival as of late, as more state legislatures have voted to ratify the 24-word amendment to the Constitution that says “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

It was first passed by Congress in 1972, and after an extension, states had 10 years to secure the three-fourths supermajority needed to ratify the measure, though proponents argue Congress has the power to lift the deadline. The battle will likely find its way to the Supreme Court.

“The existence of a deadline has been used by those who don’t favor constitutional equality as a reason not to pursue it,” said Rep. Abigail Spanberger (D, Va.), adding that the passage of this resolution takes that off the table. Because Constitutional amendments are relatively rare, there is little legal precedent guiding disputes over the state ratification process and deadlines.

Virginia became the 38th state to vote to ratify the Equal Rights Amendment, reaching the three-fourths required to amend the Constitution, a point of pride. After the ratification, copies of the resolution were delivered to the members of the Virginia congressional delegation, which has celebrated its role in becoming the last state to ratify the resolution.

The ERA’s proponents believe that having gender equality spelled out in the Constitution could change the standard used by the Supreme Court in sex discrimination cases, and affect legal rulings on issues including the pay gap between men and women and workplace accommodations for pregnant women, among others.

The amendment’s modern-day opponents say it isn’t needed, citing the 14th amendment that guarantees all citizens the equal protection of the laws. They also focus on potential ramifications for abortion legislation, including measures restricting federal funds for abortions, which they worry could be struck down under the ERA because only women can get pregnant.

House Republican leadership encouraged members to vote against the resolution Thursday. The vote comes as the conference is focused on increasing the number of women in its ranks, with just 13 GOP women this session.

The decades-old deadline is the reason why some Republicans said they opposed the measure, though, in the Senate, GOP Sens. Lisa Murkowski of Alaska and Susan Collins of Maine support a resolution removing the deadline, along with most members of the Democratic caucus.

“It’s unconstitutional because the deadline passed,” said Rep. Cathy McMorris Rogers (R., Wash.), declining to say if she would support the amendment should Congress take it up again. Rep. Carol Miller (R., W.Va.) declined to discuss her position.

Following the ratification process outlined in the Constitution, the Equal Rights Amendment has been reintroduced in every session of Congress since 1982, though the language has changed slightly.

“Why would you vote against it?” said Rep. Jeff Van Drew of New Jersey, a Republican who switched his party affiliation in December. “Just in the face of it, you believe in equal rights, you know, for everybody right?”

The U.S. Justice Department’s Office of Legal Counsel, which advises the executive branch, said in an opinion last month that the ERA’s deadline has long since expired. The National Archives said it would follow that legal opinion unless a final order from a court says otherwise.

ERA proponents are arguing in a federal-court case, filed in Massachusetts last month, that the ratification deadline shouldn’t count because it wasn’t included in the text of the ERA itself.

Supreme Court Justice Ruth Bader Ginsburg, who argued gender discrimination cases before the high court said Monday that the effort to establish the amendment should start over.

“I would like to see a new beginning” for ERA ratification, she said in an interview at Georgetown University, elaborating there was too much controversy over the states that had just come on board. “Plus, a number of states have withdrawn their ratification. So if you count a latecomer on the plus side, how can you disregard states that said ‘we’ve changed our minds?’ ”

State legislatures in Idaho, Kentucky, Nebraska, Tennessee and South Dakota have rescinded their approval of the Equal Rights Amendment. Three states—Alabama, Louisiana and South Dakota—asked a federal court last year to accept those moves to rescind approval. (Alabama and Louisiana never approved the measure.)

It is unclear whether states have the authority to rescind their ratifications. In 1868, Congress counted Ohio and New Jersey as among 29 states ratifying the 14th Amendment, despite their legislatures voting to revoke their approval.