The Washington PostDemocracy Dies in Darkness

Schumer announces Senate will vote on the Equal Rights Amendment this week

The latest vote comes 100 years after it was first introduced in Congress

A 2022 rally in Washington called on the National Archivist to publish the Equal Rights Amendment as an amendment in the Constitution. (Andrew Harnik/AP)
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The Senate will vote on the Equal Rights Amendment this week — 100 years after it was first introduced in Congress — Senate Majority Leader Charles E. Schumer said Monday.

Schumer, speaking at Hunter College in New York, argued that the Supreme Court’s decision to overturn Roe v. Wade and efforts to limit access to the abortion pill mifepristone, as well as state-level actions to roll back women’s rights, have made the ERA and its protections more critical than ever.

“In this ominous hour of American history, the Equal Rights Amendment has never been as necessary and urgent as it is today,” Schumer (D-N.Y.) said in a statement Monday.

The proposed amendment to the U.S. Constitution would guarantee equal rights under the law regardless of sex — meaning the Constitution would clearly state that women have equal rights as men. While the amendment was introduced in Congress in 1923 by leaders of the suffrage movement, it only passed in March 1972.

In the more than 50 years since, however, the Constitution has not been amended.

To be added to the Constitution, the ERA must receive a two-thirds vote in Congress and then three-fourths of states — 38 — must ratify it on their own. When Congress sent the ERA to the states in 1972 for ratification, it placed an arbitrary seven-year deadline on the ratification process. That deadline was extended to 1982, but only 35 states ratified it by that time.

The 38-state threshold was met on Jan. 27, 2020, when Virginia became the 38th state to ratify the ERA following a revived effort to amend the Constitution that saw Nevada and Illinois also ratify the amendment in 2017 and 2018, respectively.

As written, the amendment should have gone into effect two years after meeting that 38-state requirement. However, the amendment has not yet been added to the Constitution, given that, the same month Virginia ratified the ERA in 2020, the Justice Department under President Donald Trump issued an opinion asserting that the state had missed the 1982 deadline for ratification and the whole constitutional amendment process had to begin anew.

The Senate, then, is expected to vote this week on a bipartisan resolution introduced by Sens. Ben Cardin (D-Md.) and Lisa Murkowski (R-Alaska) that would remove the arbitrary deadline of 1982 and, thus, would recognize the ERA as a valid amendment to the Constitution.

“The ratification of the Equal Rights Amendment would finally provide a constitutional remedy against sex discrimination — pushing our country one step closer to finally achieving equal justice under the law,” Schumer said on Monday. “It has been exactly 100 years since the first ERA was proposed in Congress. American women cannot afford to wait 100 more.”

The three states that ratified the ERA after the deadline sued the government to recognize their ratifications, arguing that there is a federal law requiring the U.S. archivist to edit the Constitution once the requirements to add a constitutional amendment have been met.

This has landed the amendment in legal limbo, given that this is the first time an amendment has received all the appropriate requirements but remained excluded from the Constitution. Every other amendment with a deadline has been ratified within its expiration period.

President Biden has previously voiced his support for the amendment, saying in January 2022 that “it is long past time that we put all doubt to rest.”

“I am calling on Congress to act immediately to pass a resolution recognizing ratification of the ERA,” Biden said when the House announced a resolution to advance the ERA. “As the recently published Office of Legal Counsel memorandum makes clear, there is nothing standing in Congress’s way from doing so.”