As states try to force the United States to adopt the Equal Rights Amendment (ERA), Supreme Court Justice Ruth Bader Ginsburg has weighed in again on the issue, reiterating her position that she thinks the ratification process needs to “start over.”
“I would like to see a new beginning. I’d like it to start over,” Ginsburg, who has been a strong advocate for the ERA, said during a talk at Georgetown Law on Feb. 10.
“There’s too much controversy about latecomers. Virginia [came] long after the deadline passed. Plus a number of states have withdrawn their ratification.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?” she added.
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, when it 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.
A new push by advocates in recent years led Nevada and Illinois to ratify the amendment in 2017 and 2018, respectively. In January, Virginia became the 38th state to ratify the amendment, prompting proponents of the ERA to push for its adoption into the Constitution.
At the end of January, three states—Nevada, Illinois, and Virginia—sued the U.S. Archivist, in an attempt to compel the certification of the measure’s adoption as part of the U.S. Constitution.
While the required number of states to adopt the ERA into the Constitution has been reached, the original congressional deadline will likely render questions on whether these ratifications are valid.
The Justice Department’s Office of Legal Counsel (OLC) issued a legal opinion in early January arguing that the deadline to ratify the ERA had already expired and that it was “no longer pending before states.”
The department added that if Americans wish to adopt the amendment, Congress should restart the process as stipulated under Article V of the Constitution.
Meanwhile, five states—Nebraska, Tennessee, Idaho, Kentucky, and South Dakota—have voted to either rescind or withdraw their ratification of the ERA. These rescissions have sparked legal debates as Article V is silent on the issue.
Another lawsuit, launched in December 2019 by Alabama, Louisiana, and South Dakota, attempts to block the U.S. Archivist (pdf) from accepting ERA ratifications and to honor the rescissions of the five states.
The National Archives and Records Administration issued a statement on Jan. 8 saying that it will follow the DOJ’s legal opinion on the matter of the ERA, “unless otherwise directed by a final court order.”
Ginsburg previously held that she thinks the process to adopt the ERA needs to be restarted for it to be adopted into the Constitution. She told a student at Georgetown Law last year that she “hope[s] someday [the ERA] will be put back in the political hopper and we’ll be starting over again collecting the necessary states to ratify it.”