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Bellarmine Law Society Review 
 

Volume XIII | Issue I Article 2 

 
 
Is the Equal Rights Amendment “Lost?”: A Contemporary Analysis of the 
ERA 
 
Lila Zarrella 
Boston College, zarrelll@bc.edu  
  



 10 

IS THE EQUAL RIGHTS AMENDMENT “LOST?”: A CONTEMPORARY 
ANALYSIS OF THE ERA 

 

LILA ZARRELLA * 
 
 

Abstract: In January of 2020, Virginia became the thirty-eight state to ratify the 
Equal Rights Amendment (ERA). A Constitutional amendment becomes law when 
three-quarters of the states––or thirty-eight out of fifty––ratify the amendment. To 
this day, the ERA remains in limbo and as of yet has not been added to the 
Constitution due to numerous controversies surrounding its ratification––
principally, the deadline for ratification passed in 1982, and five states have 
rescinded their ratification of the ERA. This paper seeks to examine the current 
state of the ERA from an analysis of the ratification process as well as the best ways 
to achieve gender equality under the law. It seeks to explore whether the ERA is 
legally viable as well as if it is politically prudent. 

 
 

Introduction 

In 1972, both houses of the U.S. Congress passed the Equal Rights Amendment (ERA), 

and sent it to the states for ratification. Within five years, thirty-five states had ratified the 

Amendment, three states away from meeting the requisite thirty-eight for full ratification. 

Despite initial momentum, by the extended deadline for ratification in 1982 the number of 

states that had ratified the ERA remained at thirty-five, marking a legislative defeat for the 

Amendment. Four years later, political scientist Jane Mansbridge published her seminal work, 

Why We Lost the ERA, which served as a critical evaluation of the ratification period and the 

factors that ultimately led to the ERA’s spectacular defeat. Mansbridge contended that the 

ERA is “lost,” but recent developments reveal a reemergence of the “lost” Amendment. 

Since the 1977 impasse, twenty-four states have added their own equal rights 

amendments to their state constitutions and over ten of the “unratified” states have introduced 

bills to ratify the original ERA. Nevada and Illinois became the thirty-sixth and thirty-seventh 

states to ratify the ERA in 2017 and 2018, respectively.1 On January 27, 2020, Virginia 

 
* Lila Zarrella is a fourth-year student at Boston College studying Political Science and History. She is interested in 
the intersection of gender, sexuality and the law as well as the interplay between law and politics. She would like to 
express special thanks to Professor Kay Schlozman and her Inequality and Politics seminar for bringing attention to 
this issue as well as promoting lively and illuminating discussions.  
1 Deborah Machalow, “The Equal Rights Amendment in the Age of #MeToo,” DePaul Journal for Social Justice 
13, no. 1 (2019): 8. 



 11 

became the thirty-eighth state to ratify the Equal Rights Amendment (ERA), almost fifty 

years after the ERA originally passed in both houses of Congress and the ratification process 

began.2 This ratification marked an important milestone for the ERA, serving as the moment 

when three-fourths of the states ratified the Amendment, reaching the mandatory minimum 

for an amendment to be added to the Constitution.  

Over two years later, the Constitution remains untouched. The National Archivist 

refuses to add the Amendment officially due to controversy surrounding both the deadline 

for ratification and the attempted rescission by several states. The ERA finds itself at another 

impasse. A 2020 Pew Research Center report found that 78% of U.S. adults, including 

majorities of both men and women as well as Democrats and Republicans, would at least 

“somewhat favor” adding the ERA to the Constitution. Yet, the ERA remains in limbo as 

legal questions regarding ratification are settled in the courts. In the same Pew report, 

however, a plurality of ERA supporters (49%) and a majority of ERA opponents (69%) 

believe that adding the Amendment to the Constitution “would not make much of a 

difference” for women’s rights.3  

This paper seeks to examine the nuances of the ERA and the ratification process in the 

twenty-first century. Given the expired ratification deadline and the rescission of five states, 

would the ratification of the ERA be a fair representation of the will of the people and the 

broader ratification process? Moreover, in light of the belief that the ERA would have little 

impact on women’s rights, it is worth examining the likely effects of the Amendment in the 

twenty-first century, as well as if the language from 1972 provides the best basis for gender 

equality under the law today. This paper argues that, as currently situated, the ERA does not 

represent the ideal opportunity to enshrine gender equality under the law due to the 

controversy surrounding its ratification and the language of the Amendment itself, but 

perhaps represents the most practical and feasible opportunity to guarantee gender equality. 

Back from the Dead(line): Extension or Expiration 

 
2 Timothy Williams, “Virginia Approves the E.R.A., Becoming the 38th State to Back It,” The New York Times, 15 
January 2020, sec. U.S., https://www.nytimes.com/2020/01/15/us/era-virginia-vote.html. 
3 Juliana Menasce Horowitz and Ruth Igielnik, “A Century After Women Gained the Right To Vote, Majority of 
Americans See Work To Do on Gender Equality,” Pew Research Center’s Social & Demographic Trends Project 
(blog), 7 July 2020, https://www.pewresearch.org/social-trends/2020/07/07/a-century-after-women-gained-the-right-
to-vote-majority-of-americans-see-work-to-do-on-gender-equality/. 



 12 

Much of the current debate regarding the state of the ERA centers around the question 

of whether Congress can, or should, amend the original 1982 deadline. After Nevada ratified 

the Amendment in 2017, its legislature firmly asserted that this ratification was not symbolic, 

and argued that Congress could simply waive the deadline once three-fourths of the states 

ratified the Amendment. 4  In early 2020, however, as Virginia began engaging in the 

ratification process, the Department of Justice under former President Trump issued a memo 

arguing that because the deadline for ratification had expired, the ERA could “not become 

part of the Constitution, and the Archivist could not certify its adoption,” so ERA supporters 

would have to begin the entire process anew.5 Ultimately, both arguments have merit, and 

the issue regarding the deadline is a complicated one, with crucial legal and political aspects 

worth considering. 

Congress initially included a seven-year deadline for the ratification of the ERA, 

mirroring prior amendment proposals from past decades. In 1977, however, ERA proponents 

pushed for a deadline extension; Representative Elizabeth Holtzman introduced a bill to 

extend the deadline to expire in June of 1982, adding three years to the ratification period. 

Holtzman’s bill passed both the House and the Senate with a simple majority and was sent 

to the desk of President Carter, as ERA proponents thought that the President’s signature 

would help legitimize the extension. Ultimately, Carter signed H.J.Res 638, but asserted that 

his signature was superfluous, reaffirming Congress’s sole responsibility in the amendment 

ratification process.6 Justice Ginsburg viewed the deadline extension as a “middle ground,” 

as it reinforced the relevance and importance of the ERA without giving states an indefinite 

period for ratification.7 This original debate offers insight to the current question surrounding 

the deadline of the ERA and serves as a salient example of past congressional action and 

logic. Many supporters of the current “three-state strategy” argue that because Congress has 

 
4 Gerard N. Magliocca, “Buried Alive: The Reboot of the Equal Rights Amendment,” Rutgers University Law 
Review 71, no. 2 (2018): 634. 
5 Qtd. in Amber Phillips, “The Never-Ending Fight over Whether to Include the Equal Rights Amendment in the 
Constitution,” The Washington Post (Online), 31 January 2022, sec. Politics, 
https://www.proquest.com/docview/2624041233/citation/8139901394E64912PQ/19. 
6Jessica Neuwirth, Equal Means Equal: Why the Time for an Equal Rights Amendment Is Now (New York, NY: The 
New Press, 2015), 96. 
7 Jon O. Shimabukuro, “Equal Rights Amendment: Close to Adoption Note,” Equal Rights Amendment: Close to 
Adoption, 2 July 2018, 3. 



 13 

already extended the deadline for ratification in 1978, Congress has the power to do so again 

in 2023.8 

In order to assess the viability of the ERA, many legal scholars have returned to the text 

of the Constitution and prior legal precedent. Article V of the Constitution, which discusses 

the amendment process, offers little insight into procedural matters of the ratification process, 

such as the ability to impose a deadline or even a suggested time period for ratifying.9 Given 

this immense responsibility with nebulous procedural regulations, a few influential Supreme 

Court cases have guided the ratification process in Congress. In the 1921 case Dillon v. Gloss, 

the Court determined that an amendment should be ratified in a “sufficiently 

contemporaneous” time period following its proposal to ensure the reflection of “the will of 

the people in all sections at relatively the same period.”10 Here, the Court viewed the proposal 

and ratifications not as two separate processes, but as one closely interrelated act. In 1939, 

the Court expanded on factors that determine whether or not an amendment remains 

“sufficiently contemporaneous” when they noted that there are a wide variety of “political, 

social, and economic” factors that can influence the relevance of the amendment, but 

maintained that the specifics should be left up to Congress. Justice Ginsburg argued that 

these cases “bracketed” the issues of procedural fairness, with the Courts endowing Congress 

with the responsibility to assess the contemporaneity of each amendment during the 

ratification process.11   

Given these two influential cases, a pertinent question regarding the deadline extension 

for the ERA is, therefore, whether or not a fifty-year-old amendment can be considered 

“sufficiently contemporaneous.” Most proponents of the ERA point to the case of the 

Twenty-Seventh Amendment, colloquially known as the Madison Amendment, which was 

ratified 203 years after it was initially proposed in 1789.12 The Congressional Research 

Service has established that the ratification of the Madison Amendment does in fact bolster 

 
8 Lindsley Armstrong Smith and Stephen A. Smith, “Keeping Hope Alive: A Case Study of the Continuing 
Argument for Ratification of the ERA,” Frontiers: A Journal of Women Studies 38, no. 2 (2017): 174, 
https://doi.org/10.5250/fronjwomestud.38.2.0173. 
9 Shimabukuro, “Equal Rights Amendment: Close to Adoption Note,” 3. 
10 Qtd. in Allison L Held, Sheryl L Herndon, and Danielle M Stager, “The Equal Rights Amendment: Why the Era 
Remains Legally Viable and Properly Before the States,” William & Mary Journal of Race, Gender, and Social 
Justice 3, no. 1 (1997): 118-119. 
11 Shimabukuro, “Equal Rights Amendment: Close to Adoption Notes,” 3. 
12 Held et al., “The Equal Rights Amendment,” 114. 



 14 

the argument for ratification of the ERA.13 However, other legal scholars find this argument 

less convincing. Scholars first point out that the Madison Amendment did not contain a time 

limit for ratification, whereas the ERA has faced two such limits already. Additionally, 

Brandon Denning and John Vile highlight that “courts and most members of Congress have 

tended to treat the 27th as a ‘demi-amendment,’ lacking the full authority of the 26 that 

preceded it.”14 Furthermore, scholars and politicians alike have pointed out the dangerous 

precedent the Twenty-Seventh Amendment has set, and how the ratification of the ERA 

would reinforce such precedent. If the long-forgotten Twenty-Seventh Amendment and the 

once-expired ERA are to be ratified, “then why cannot States ratify other long-forgotten 

amendments?” asked Senator William Roth.15 Some scholars wonder if the ratification of the 

Twenty-Seventh Amendment has made the ratification process into a perpetual, never-

ending one, and believe that the ratification of the ERA would confirm this. As a result, many 

scholars and politicians alike question whether the history and implications of the Twenty-

Seventh Amendment should encourage or worry ERA proponents.  

 Another important aspect of the historic debate surrounding the extension of the ERA 

in the late 1970s, as well as the renewed debate today, has been the location of the deadline 

within the proposing clause of the Amendment, as opposed to the text of the Amendment 

itself. As legal scholars and proponents of the ERA have noted, states only ratify the text of 

the amendment, not any proposing clauses, which are purely legislative and subject to the 

determination of Congress.16 Many of the congressional supporters of the ERA argued that 

when they initially accepted the seven-year ratification deadline in the proposing clause, they 

viewed the addition as “customary,” and not anything worth disputing. Legal scholars, such 

as Justice Ginsburg, concur, and argue that the location of the deadline in the preamble 

“entails a determination qualitatively different from agreement on the substantive content of 

the amendment.”17 However, those opposed to the Amendment point out that it only passed 

in Congress because it contained such a deadline. Judge Robert L. Wilkins argued in 2022 

 
13 Smith and Stephen A. Smith, “Keeping Hope Alive,” 174. 
14 Brannon P. Denning and John R. Vile, “Necromancing the Equal Rights Amendment,” Constitutional 
Commentary 17, no. 3 (2000): 600. 
15 Qtd. in Magliocca, “Buried Alive,” 639-640. 
16 Held et al., “The Equal Rights Amendment,” 115. 
17 Ruth Bader Ginsburg, “Ratification of the Equal Rights Amendment:  A Question of Time Observations,” Texas 
Law Review 57, no. 6 (1978-1979): 923. 



 15 

that if the deadline is removed, “wouldn’t then the result be that we invalidate the proposed 

amendment as opposed to just striking the deadline?”18 This controversy over the location of 

the deadline speaks to issues that ERA proponents must grapple with, namely the legality of 

a deadline extension, but also the political and ethical considerations of removing the 

deadline. 

Those opposed to the deadline extension find the “proposing clause” argument without 

merit, arguing instead that the entire text of the Amendment, including the proposing clause, 

served as a contract of sorts, one that both the states and Congress should uphold. Historian 

Mary Frances Berry notes that for a contract to be valid, there must be agreed-upon terms. 

For the ERA, Congress and the states agreed upon a time limit of seven years for ratification. 

She declares that “when seven years passed, all pre-existing ratifications expired.”19 Legal 

scholar Grover Rees III expands on this argument, noting that extension runs on the 

assumption that “the states which ratified the ERA with a seven-year time limit also would 

have ratified with a longer time limit,” and thus, the deadline extension may be changing the 

terms of agreement.20 For at least one state, South Dakota, Rees’s argument holds true, as it 

rescinded its ratification once the deadline had been extended to ten years, believing this 

decision to have changed the terms for ratification.21 

With all these factors taken into consideration, what are the current options for the future 

of the ERA? Currently, the three-states that have ratified the Amendment since the 1982 

deadline are in the process of suing the federal government. They purport that the National 

Archivist should, by law, have already added the ERA to the Constitution, as it has been 

ratified by the requisite 38 states. On the other hand, the Department of Justice under 

President Biden has exhorted Congress to simply pass a resolution extending the deadline of 

the Amendment once again. In 2021, a resolution to do just that passed in the House of 

Representatives, but considering the current filibuster in the Senate, the possibility of this 

resolution passing is highly unlikely.22 In addition to the infeasibility of these options, ERA 

 
18 Qtd. in Rachel Weiner, “Appeals Court Debates Whether Equal Rights Amendment Is Really Dead,” The 
Washington Post (Online), 28 September 2022, sec. Local, 
https://www.proquest.com/docview/2718752574/citation/8139901394E64912PQ/2. 
19 Qtd. in Thomas H Neale, “The Proposed Equal Rights Amendment: Contemporary Ratification Issues,” 
Congressional Research Service, 2014, 22. 
20 Qtd. in Neale, “The Proposed Equal Rights Amendment,” 22. 
21 Magliocca, “Buried Alive,” 638. 
22 Phillips, “The Never-Ending Fight.” 



 16 

proponents both in and out of Congress must ask themselves the consequences of extending 

such a deadline. Will doing so create a dangerous precedent for future amendments, or even 

the revival of past amendments? Does an ERA ratified in this way represent the amendment 

process as intended? Either way, future actions regarding the ERA will have significant 

consequences on the amendment process as well as the legal rights and protections of U.S. 

citizens. 

 

 

The Fight for Thirty-Eight: Not Quite There? 

Notwithstanding the impending question of the ratification deadline, ratification of the 

ERA currently faces another barrier: the rescission of five states since the early 1970s. 

Although thirty-eight states have ratified the ERA since 1972, five have rescinded this 

ratification, meaning that there remains a question of whether or not the ERA has truly been 

ratified in three-quarters of the states. The first state to rescind its ratification was Nebraska 

in March of 1973. Legal analysts hired by the state of Nebraska were unable to come to an 

agreement on the legality of rescission, as it is an ill-defined legal term which has never truly 

been settled in the courts.23 Since Nebraska’s rescission in 1973, Tennessee, Idaho, Kentucky, 

and South Dakota have similarly rescinded their earlier ratifications. Legal scholar Gerald 

Magliocca remarks that usually the ratification of an amendment only requires “simple 

arithmetic.” However, like many other aspects of the ERA, this issue too is complex and 

difficult to resolve.24   

Currently, the ratification of the Fourteenth Amendment in 1868 serves as the most 

pertinent historical example regarding the question of rescission. Although both Ohio and 

New Jersey had already ratified the Fourteenth Amendment, the election of 1867 brought 

Democratic majorities to both states, and the states promptly attempted to rescind their 

ratifications. In July of 1868, the Secretary of State announced that the ratification of the 

Fourteenth Amendment was shrouded in “doubt and uncertainty” due to the two rescissions 

 
23 Veronica Monique Lerma, “The Equal Rights Amendment and the Case of the Rescinding States: A Comparative 
Historical Analysis” (M.A., United States -- California, University of California, Merced), accessed 1 November 
2022, https://www.proquest.com/docview/1698104108/abstract/5342CC3FA5F64F16PQ/19, 13-14. 
24 Magliocca, “Buried Alive,” 649. 



 17 

in Ohio and New Jersey.25 Congress, ignoring the proclamation, pronounced the Fourteenth 

Amendment as part of the Constitution, including Ohio and New Jersey in the total of the 

three-quarters of states and thus, indirectly declaring their recessions invalid.26 Proponents 

of the ERA point to this decision as demonstrating the illegitimacy of rescission, but some 

legal scholars have questioned this interpretation. Given the specific context and 

circumstances surrounding the Fourteenth Amendment, some scholars have wondered 

whether Congress intended to promulgate a general rule regarding the amendment process 

or if this decision was specific to the circumstances surrounding the Fourteenth Amendment 

and the end of the Civil War.27 As a result, it appears that this historical precedent on its own 

may not be enough to justify the rejection of ERA rescissions. 

A more recent example, the court case of Idaho v. Freeman, addresses the legality of an 

ERA rescission, although once again, the applicability of this case has been called into 

question. In 1979, Idaho, Washington, and Arizona brought forth a lawsuit in the Idaho 

District Court, arguing that the states have a right to rescind their ratifications of an 

amendment. The presiding Judge in the case, Marion Callister, agreed that a rescission is 

within a state’s rights, asserting that rescission “is clearly a proper exercise of a state’s power 

[...] especially when that act would give a truer picture of local sentiment regarding the 

proposed amendment.”28 This case gained traction nationwide, with newspapers in other 

states referring to it as “life or death for the ERA.” Proponents of the ERA, such as the 

National Organization for Women, argued that Judge Callister should be dismissed from the 

case because of his high-ranking position in the Mormon Church. These groups further 

pointed out that this issue lies under the jurisdiction of Congress, not the Courts.29 Ultimately, 

the Supreme Court decided to “stay” the case, limiting its legal effect, and once the 

ratification deadline for the ERA expired, it vacated the District Court decision.30 As a result, 

much like the Fourteenth Amendment, the Freeman decision holds little weight over the 

current rescission debate, although the argument and logic contained in its vacated decision 

are still employed by ERA opponents today. 

 
25 Magliocca, “Buried Alive,” 651. 
26 Held et al., “The Equal Rights Amendment,” 133. 
27 Magliocca, “Buried Alive,” 652. 
28 Qtd. in Shimabukuro, “Equal Rights Amendment,” 3. 
29 Lerma, “The Equal Rights Amendment and the Case of the Rescinding States,” 14. 
30 Neale, “The Proposed Equal Rights Amendment,” 18. 



 18 

The current defenses for rescission continue to mirror the language that Judge Callister 

employed in his 1981 Freeman decision, often referencing the idea of “fairness” as well as 

ensuring that the ratification process continues to represent the “consensus” of the country. 

Many proponents of rescission argue that since the ratification of an amendment requires a 

“contemporaneous consensus,” it therefore requires that three-quarters of the states reach a 

consensus on the amendment at the same time.31 Rees further contends that “a consensus, by 

nature, cannot include anyone who does not wish to be included,” and that the ratification of 

the ERA would thus not represent a consensus of the states, nor the will of the American 

people.32 Furthermore, some ERA opponents maintain that if Congress blocked rescissions, 

it would infringe upon the states’ rights during the amendment process. 33  Other ERA 

opponents more explicitly used the language of “fairness,” noting that if a deadline extension 

was allowed, so too should rescissions be allowed. They also reasoned that if a state can 

change their vote from “no” to “yes” on an amendment, then why should the reverse be 

disallowed?34 Ultimately, these defenses of rescission will be seriously considered by ERA 

proponents in the coming months. 

On the other hand, those opposed to the rescission of ratification speak to the importance 

of the clarity and finality of the amendment process. According to a literal interpretation of 

Article V, a state that has not ratified an amendment may reconsider ratification, but a state 

that has already ratified may not rescind its ratification.35 The Department of Justice operated 

under this understanding during the initial legal fight over rescission during the late 1970s; 

Justice Ginsburg summarized this position on ratification as “an act that cannot be 

accompanied by strings or conditions, a final act that cannot be withdrawn.” 36  Many 

politicians and scholars alike highlight the importance of the finality of a ratification, as it 

provides a “fixed terminus to the amendment process.”37 If Congress were to allow the 

rescission of state ratifications, this “fixed terminus” would be completely upended and 

would thus undermine the functioning of the entire amendment process. The importance of 

 
31 Ginsburg, “Ratification of the Equal Rights Amendment,” 939. 
32 Grover Rees, “Throwing Away the Key: The Unconstitutionality of the Equal Rights Amendment Extension,” 
Texas Law Review 58, no. 5 (1980): 878. 
33 Rees, “Throwing Away the Key,” 891. 
34 Lerma, “The Equal Rights Amendment,” 18. 
35 Held et al., “The Equal Rights Amendment,” 131. 
36 Ginsburg, “Ratification of the Equal Rights Amendment,” 939. 
37 Held et al., “The Equal Rights Amendment,” 133. 



 19 

a clear and straightforward amendment process cannot be underscored enough.Both 

opponents and proponents of the ERA continue to argue the importance of the “finality” of 

the amendment process, with proponents employing this argument to block possible 

rescissions and opponents to block a deadline extension. 

Ultimately, like the question of a deadline extension, the debate regarding the rescission 

of state ratifications is complex. Proponents of the ERA and the “three-state strategy” argue 

that these rescissions are invalid, evidenced by the precedent of the Fourteenth Amendment 

and the importance of keeping the amendment process both clear and straightforward. 

Opponents of the ERA, on the other hand, declare that rescissions actually allow for a 

“consensus” and the will of the people to be better expressed, making the process all the 

more “fair.” Both arguments clearly have merit to them and the current debate becomes more 

muddled once one considers how this debate does not occur in a vacuum, but instead has 

significant implications for enshrining gender equality in the Constitution and eliminating 

discrimination on the basis of sex. As a result, proponents of the ERA must ask themselves 

if they are willing to make these sacrifices to the amendment process and if the goal of gender 

equality through the ERA is worth these sacrifices. 

Gender Inequality in the Twenty-First Century: Why the ERA Matters 

Clearly, there are currently many political and legal barriers preventing the ERA from 

officially becoming a part of the U.S. Constitution. With the uncertainty of whether or not 

these obstacles can be overcome, the question remains of whether or not the ERA is worth 

fighting for. Even ignoring these legal questions, some politicians and scholars find the fight 

for the ERA to be of little value, arguing that in the decades since the ratification process 

began, gender inequality no longer presents an issue to Americans that needs to be solved 

with a Constitutional amendment. As Jane Mansbridge herself argues, “taking all of these 

changes together, it is hard to avoid the conclusion that while the ERA would have changed 

quite a lot in 1972, by 1982 most of this had been accomplished by other means.”38 During 

renewed discussions over the ratification of the ERA in Arkansas during the 2010s, state 

Senator Gilbert Baker reiterated a similar sentiment, proclaiming, “to change the 

 
38 Jane J. Mansbridge, Why We Lost the ERA (Chicago, UNITED STATES: University of Chicago Press, 1986), 
http://ebookcentral.proquest.com/lib/bostoncollege-ebooks/detail.action?docID=4003828, 98. 



 20 

Constitution for the sake of making a statement— we just don’t need to go there.”39 These 

claims are worth investigating, as it is important to consider whether the ERA would simply 

be “making a statement.” Has the United States already accomplished most of what the ERA 

had set out to do? 

Since the House of Representatives and Senate approved the ERA in 1972 and the 

ratification process began, it is true that significant steps towards achieving gender equality 

have been made, and it would perhaps be naive to think otherwise. Many legal scholars argue 

that the Supreme Court’s interpretation of the Equal Protections Clause of the Fourteenth 

Amendment in regard to gender discrimination has led to a “de facto ERA.”40 Congress has 

also passed many forms of targeted legislation aimed at reducing gender inequality, such as 

the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, Title XI of the 

Educational Amendments of 1972, the Pregnancy Discrimination Act of 1978, and the 

Violence Against Women Act of 1994. More recently, the Affordable Care Act has helped 

to eliminate certain forms of gender discrimination present in the insurance industry. Jessica 

Neuwirth, founder of the ERA Coalition, points out that these laws do not hold the same 

weight as a Constitutional Amendment though. They are also not comprehensive when it 

comes to eliminating gender inequality, and can be (and have been) struck down in whole or 

in part by the Supreme Court or repealed by Congress, such as aspects of the Violence 

Against Women Act and the Affordable Care Act.41 The idea of a “de facto” ERA clearly 

does not offer women the same protections a de jure ERA enshrined in the Constitution 

would; a de facto ERA is highly susceptible to revisions and retractions, whereas a de jure 

ERA is not. 

Given the limitations of gender equality under the law without the ERA, many 

proponents of the amendment highlight the continued disparities between men and women 

in many aspects of American society and the ways in which the ERA could eliminate or 

diminish those disparities. A 2020 PEW study found that over 57% of Americans believe 

that “the country has not gone far enough on gender equality,” many of whom pointed to the 

 
39 Qtd. in Smith and Smith, “Keeping Hope Alive,” 177. 
40 Julie C. Suk, “An Equal Rights Amendment for the Twenty-First Century: Bringing Global Constitutionalism 
Home,” Yale Journal of Law and Feminism 28, no. 2 (2017 2016): 393. 
41 Neuwirth, Equal Means Equal, 10; Sarah M. Stephens, “At the End of Our Article III Rope: Why We Still Need 
the Equal Rights Amendment,” Brooklyn Law Review 80, no. 2 (2015 2014): 419. 



 21 

prevalence of sexual harassment and continued inequalities under the law as exacerbating 

this disparity.42 Neuwirth highlights the persisting gender discrimination that greatly impacts 

the financial standing of women, such as hiring practices, unequal wages, and pension 

policies.43 Congresswoman Carolyn Maloney, a major proponent of the ERA, has frequently 

called attention to the 2011 Supreme Court decision in Wal-Mart v. Dukes, where the Court 

decreed that all the women who had been denied promotions at Wal-Mart could not join a 

class action lawsuit. Maloney argues that this decision points to the persisting economic 

inequality empowered by the Court without the ERA to guide their decisions.44 Proponents 

of the ERA further assert that the ERA could offer greater protections for pregnant women 

and bolster reproductive rights and freedom.45 In fact, in states with their own gender equality 

amendments, high court decisions reveal that the ERA offers better protections to women 

under the law and have helped reduce discrimination based on reproductive capabilities.46 

Currently, the Equal Protections Clause of the Fourteenth Amendment serves as the 

constitutional basis for gender discrimination protection. Even so, proponents of the ERA 

proclaim that this interpretation does not go far enough in protecting against gender 

discrimination. The Supreme Court first used the Equal Protections Clause to protect against 

gender discrimination in 1971, but the 1976 decision in Craig v. Boren codified this 

interpretation, creating an “intermediate scrutiny” test to determine sex discrimination.47 In 

Craig, the Court developed a two-prong test, wherein to withstand intermediate scrutiny, the 

law must serve government interests and be substantially related to government objectives.48 

This interpretation continued to develop, reaching a zenith in the 1996 United States v. 

Virginia decision, after which Justice Ginsburg declared, “there is no practical difference 

between what has evolved and the [ERA.]”49  However, unlike “strict scrutiny,” which 

applies to suspect classifications such as race and ethnicity, the idea of “intermediate scrutiny” 

 
42 Horowitz and Igielnik, “A Century After Women Gained the Right To Vote.” 
43 Neuwirth, Equal Means Equal, 8. 
44 Suk, “A Equal Rights Amendment for the Twenty-First Century,” 388-389. 
45 Kate Kelly, “Op-Ed: The Best Way to Protect Abortion Rights? Finalize the Equal Rights Amendment,” Los 
Angeles Times (Online), 23 May 2022, sec. Opinion, 
https://www.proquest.com/docview/2667740385/citation/8139901394E64912PQ/3. 
46 Stephens, “At the End of Our Article III Rope,” 419. 
47 Mansbridge, Why We Lost the ERA, 50. 
48 Lorraine Dusky, Still Unequal: The Shameful Truth about Women and Justice in America, 1st ed., (New York: 
Crown Publishers, 1996), 102. 
49 Qtd. in Stephens, “At the End of Our Article II Rope,” 399-400. 



 22 

is extremely nebulous and ambiguous. The two-pronged test has been applied in dramatically 

different ways since the Virginia ruling and has created more leeway than strict scrutiny 

would have allowed. Proponents of the ERA argue that it would require a strict or absolute 

scrutiny test as well as removing the idea of “intent” as a consideration when looking at 

possible discrimination.50 

Ultimately, it is clear that the current protections against gender discrimination under 

the law leave much to be desired. Although the country has made strides towards gender 

equality in the decades since the introduction of the ERA, current legislation and 

Constitutional protections still enable and allow a certain degree of discrimination. Moreover, 

laws can always be struck down or repealed and, as evidenced by past Supreme Court actions, 

even the interpretation of legal tests can change over time. The author of the ERA, Alice 

Paul, once declared that “we shall not be safe until the principle of equal rights is written into 

the framework of our government.”51 However, it is important to acknowledge that nowhere 

in the language of the ERA does it guarantee strict scrutiny or protection against disparate 

impact.52 Therefore, although it is clear that more legal protections for gender equality must 

be enacted, the question remains of whether the ERA is the most effective mechanism for 

achieving those goals. 

Starting Over?: A New, Better Equal Rights Amendment? 

Considering the recent developments in Nevada, Illinois, and Virginia, the “three-state 

strategy” for ratification has been frequently referenced as the most pragmatic approach to 

achieving the ratification of the ERA. The aforementioned obstacles of the expired deadline 

and the rescission of five states still remain in the way of ratification. What would an ERA 

that overcame these obstacles look like? Magliocca argues that a ratification of the ERA 

which ignores the deadline and the rescinded states would delegitimize the Amendment and 

“might lead a future Congress to contest that recognition.”53 Given the view of the Twenty-

Seventh Amendment as a “demi-amendment” without the full weight or authority of other 

amendments, it is quite possible that the ERA could suffer a similar fate. In the courtroom, 

judges may use the narrowest possible reading of the ERA given its ambiguous ratification, 

 
50 Machalow, “The Equal Rights Amendment in the Age of #MeToo,” 27-28. 
51 Qtd. in Smith and Smith, “Keeping Hope Alive,” 197. 
52 Suk, “An Equal Rights Amendment for the Twenty-First Century,” 394. 
53 Magliocca, "Buried Alive,” 635. 



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meaning that the legal protection offered under the ERA may be undermined. If Congress 

tried to  contest or even repeal the ERA under the assumption that its ratification was 

“illegitimate,” not only would this act be disruptive to the fight for gender equality, but it 

would also be dangerous for maintaining trust in democracy and the rule of law.54 Given 

such concerns, the likely strategy for ratifying the ERA faces obstacles not only in the interim, 

but possible consequences that could have an adverse effect on ensuring equality under the 

law in the long-term. 

Since the 1982 ratification deadline expired, many politicians have advocated for a 

“start-over strategy.” This approach would simply reuse the text of the 1972 Amendment and 

begin the ratification process anew; this strategy has been offered since the deadline for 

ratification passed in 1982 and was long championed by Senator Ted Kennedy.55 More 

recently, however, Representative Carolyn Maloney has reintroduced the ERA to Congress, 

but with a substantive change in the language of the Amendment. Maloney added a sentence 

to the beginning of the Amendment, which reads, “Women shall have equal rights in the 

United States and every place subject to its jurisdiction.”56 This change of language would 

serve as an explicit reference to “women” in the Constitution–the first reference of its kind, 

carrying a certain symbolic weight. Additionally, Neuwirth notes that instead of simply 

covering non-discrimination, this new approach also will “more readily cover substantive 

equality.”57 Some legal scholars take issue with the original text being explicitly focused on 

prohibiting discrimination, wishing that the ERA would enshrine “a right to egalitarian 

institutions rather than a right against discrimination.”58 By using more affirmative language, 

legislators can craft an amendment that makes gender equality a goal the country can move 

towards, rather than just eliminating gender-based discrimination. 

Legal scholars Kimberlé Crenshaw and Catharine MacKinnon have gone even further 

than the changes proposed by Maloney, advocating for an amendment that acknowledges 

intersectionality in terms of race, gender, and other relevant aspects of a person’s identity. 

Women across and within racial groups have widely different experiences and those with 

 
54 Magliocca, “Buried Alive,” 655. 
55 Neuwirth, Equal Means Equal, 101. 
56 Qtd. in Jessica Neuwirth, “Time for the Equal Rights Amendment,” Harbinger 43 (2018-2019): 160. 
57 Neuwirth, Equal Means Equal, 102. 
58 Suk, “An Equal Rights Amendment for the Twenty-First Century,” 384. 



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multiple marginalized identities experience various forms of oppression at 

disproportionately higher rates than those with fewer marginalized identities. As the legal 

system of the United States is inadequately equipped to deal with the disparate impact of 

these various identities, Crenshaw and MacKinnon seek to enshrine the concept of 

intersectionality and equal protection on account of both race and sex.59 Crenshaw and 

MacKinnon’s “Equality Amendment” also explicitly defines sex to include “pregnancy, 

gender, sexual orientation, and gender identity.”60 Crenshaw and MacKinnon included these 

terms under the broader concept of sex “because they are all facets of the unified but diverse 

system of inequality that privileges maleness and masculinity over femaleness and 

femininity.”61 Since the original text of the ERA only referred to “sex” and legal scholars are 

split on whether these protections could carry over to transgender or non-binary individuals, 

ERA proponents have understudied this question.62 Ultimately, this Equality Amendment 

offers the broadest and most inclusive interpretation of gender equality, while also enshrining 

the protection of those with intersecting identities within the Constitution. 

Conclusion: Where Does This Leave the ERA? 

Currently, the United States faces multiple options to enshrine gender equality into law. 

Historically, the Equal Rights Amendment is the most well-known and most successful 

attempt at achieving gender equality under the law. With thirty-eight states ratifying the 

Amendment, as well as twenty-four adding their own versions of the ERA to their state 

Constitutions, it is hard to call the ERA defeated by any means, even if it has not been 

officially added to the Constitution. Even so, proponents of the ERA have clearly not given 

up on the viability of the Amendment, especially considering the recent victories in the past 

five years. The 1972 Amendment still serves as perhaps the most feasible path toward 

codifying legal protection based on gender under the law, but its proponents could consider 

shifting their perspective towards a new fight over an amendment that better reflects the 

contemporary realities of gender-based inequality in the United States. 

 
59 Crenshaw, Kimberlé, and Catharine MacKinnon. “Reconstituting the Future: An Equality Amendment.” The Yale 
Law Journal 129 (26 December 2019): 356.  
60 Qtd. in Neuwirth, “Time for the Equal Rights Amendment,” 160. 
61 Crenshaw and MacKinnon, “Reconstituting the Future,” 360. 
62 Hanna H. White, “The Equal Rights Amendment in the Twenty-First Century: Ratification Issues and 
Intersectional Effects,” DttP: Documents to the People 47, no. 4 (2019): 36. 



 25 

Crenshaw and MacKinnon acknowledge that, “it is the responsibility of ‘We the People’ 

to adapt the Constitution to the society we live in; to grow in our recognition of problems 

and potential solutions; to strengthen our democracy in an intimately interconnected 

world.”63 With this statement in mind, a reflection of the ERA reveals that it is perhaps 

inappropriate for the “society we live in.” In order to ratify the Amendment, Congress and 

the Courts would need to ignore a decades-expired deadline as well as five rescinded states. 

Given this reality, perhaps gender equality advocates should undertake a different means of 

achieving their goals. Would ratifying the ERA undermine other aspects of the Constitution, 

hampering other ways to achieve equality under the law? Should the United States seek to 

enshrine gender equality with a more nuanced definition of gender, looking past the binary 

and acknowledging the importance of intersecting identities? Is anti-discrimination enough 

to guarantee gender equality? These complicated questions demand complicated answers. 

Given the lack of coverage and attention on this issue, it is unlikely we will see a resolution 

in the coming months. Even so, as Crenshaw and MacKinnon note, it is up to “We the People” 

to decide the path forward and find a way to reckon with these difficult questions. Jane 

Mansbridge seeks to answer “Why We Lost the ERA,” but perhaps now the question is “how 

should we salvage it?” 

 
63 Crenshaw and MacKinnon, “Reconstituting the Future,” 364. 


