Virginia, Nevada and Illinois are suing the federal government, seeking adoption of Equal Rights Amendment into US Constitution as the 28th amendment. The ERA guarantees equal rights for all Americans regardless of their sex or gender. In the lawsuit, the attorneys general ask the court to direct the archivist to perform his statutory duty to certify the ERA as the 28th Amendment to the U.S. Constitution. The lawsuit fails to take into account that the amendment’s ratification timeline expired.
Though an equal rights amendment was proposed as early as 1923, the ERA was not adopted by Congress until 1972, when it passed with broad, bipartisan support. By 1977, 35 states had ratified the ERA and a three year extension was granted but no other state’s managed to ratify the amendment during that time. Illinois ratified the ERA in 2018. When combined with Nevada’s ratification in 2017 and Virginia’s ratification vote just this Monday, a total of 38 states have now ratified the ERA, which passes the constitutional threshold required for the ERA to become the 28th Amendment despite being beyond the timeline. With the ERA, the U.S. Constitution provides an explicit guarantee of protection against discrimination based on sex.
An amendment approved by Congress automatically becomes a valid part of the Constitution as soon as it is ratified by the legislatures of three-fourths of the states. The complaint further asserts that the U.S. Archivist does not have any discretionary authority over which amendments are added to the Constitution. As a result, the Archivist is legally obligated to recognize that the ERA has become part of the Constitution. A seven-year ratification time limit was initially placed on the amendment, but as the deadline approached, Congress granted a three-year extension. Thirty-five states ratified the proposed amendment prior to the original deadline, three short of the number required for it to be implemented (five of them later voted to rescind their ratification). No further states ratified the amendment within the extended deadline, thus it failed to be adopted despite the new state’s adoption of the Amendment. A legal challenge in the Supreme Court is likely.
The last amendment to the Constitution came in 1992 with the 27th Amendment prohibiting members of Congress from granting themselves pay raises during the current session. Rather, any raises that are adopted must take effect during the next session of Congress.