Deadline for Ratifying Equal Rights Amendment Has Expired: DOJ’s Office of Legal Counsel

By Janita Kan
Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
January 8, 2020Updated: January 8, 2020

The Justice Department (DOJ) issued a legal opinion this week arguing that the deadline to ratify the Equal Rights Amendment (ERA) to the U.S. Constitution had already expired despite recent efforts to revive the proposed amendment.

“We conclude that Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the States,” a memo (pdf) dated Jan. 6 from the DOJ Office of Legal Counsel (OLC) stated.

The ERA seeks to ban discrimination on the basis of sex, with supporters seeing it as a critical provision to protect women’s rights under the Constitution. The amendment was first proposed in Congress in 1923 and was passed in 1972, where it then went to the states for ratification, according to the Alice Paul Institute. Congress gave the states a seven-year deadline, which was then extended until 1982, but only 35 states had ratified the amendment falling short of the necessary 38 state ratifications, or three-quarters of the 50 states, as required by the Constitution.

A new push by advocates to pass the proposal in recent years prompted Nevada and Illinois to ratify the amendment in 2017 and 2018, respectively. The House Judiciary Committee tried to revive the movement, voting last year to remove the deadline for the ERA.

Meanwhile, five states—Nebraska, Tennessee, Idaho, Kentucky, and South Dakota—voted to either rescind or withdraw their ratification of the ERA. But it is unclear whether states can legally rescind their ratification as the Constitution is silent on the issue.

The Commonwealth of Virginia is poised to become the 38th state to ratify the proposal. The state’s Democratic Governor, Ralph Northam, said at a news conference on Tuesday that passing the ERA is one of their priorities.

“We will support women’s rights by passing the Equal Rights Amendment, and we will overturn laws that restrict women’s rights to decide their own healthcare,” he said.

However, the DOJ suggested that any attempt to adopt the ERA may be too late, saying that the initial deadline was enforceable and that Congress may not revive it after the deadline has expired.

The OLC added that if Americans wish to adopt the amendment into the Constitution, Congress should restart the process as stipulated under Article V of the Constitution.

“Accordingly, should Congress now ‘deem [the ERA] necessary,’ U.S. Const. art. V, the only constitutional path for amendment would be for two-thirds of both Houses (or a convention sought by two-thirds of the state legislatures) to propose the amendment once more and restart the ratification process among the States, consistent with Article V of the Constitution,” the OLC opinion stated.

The text of the ERA reads:

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 amendment shall take effect two years after the date of ratification.