What You Need to Know About the Legal Battle Over Equal Rights Amendment

Tom Jipping, a senior legal fellow at The Heritage Foundation, joins the podcast to explain the Equal Rights Amendment. He also discusses why Virginia technically can’t be the 38th state to ratify it—even though the Legislature claimed Monday to have done so. Listen on the podcast, or read a lightly edited transcript of the interview, posted below.

We also cover these stories:

• President Donald Trump announced a new Middle East two-state peace plan on Tuesday.
• Trump gave a shoutout to Secretary of State Mike Pompeo after Pompeo’s run-in with an NPR reporter.
• The Centers for Disease Control and Prevention announced Tuesday that it is adding more screenings at borders and airports in the U.S. for coronavirus. 

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Rachel del Guidice: We are joined today on The Daily Signal Podcast by Tom Jipping. He’s the deputy director of the Edwin Meese III Center for Legal and Judicial Studies and senior legal fellow at The Heritage Foundation. He is also the author of a new Heritage Foundation report, “The 1972 Equal Rights Amendment Can No Longer Be Ratified—Because It No Longer Exists.” Tom, thank you so much for being with us today.

Jipping: Thanks for having me.

del Guidice: So on Monday, Virginia passed the Equal Rights Amendment, or the ERA. Before we get started, can you just kind of briefly go over what the ERA is?

Jipping: Sure. The Equal Rights Amendment is a proposed amendment to the U.S. Constitution. The effort to make it part of the Constitution has been going on since the 1920s, and proposals to send it to the states have been introduced in Congress more than a thousand times over those years.

It got the two-thirds vote of both houses of Congress that the Constitution requires only once and that was in 1972, and that sent the ERA to the states. The Constitution requires that three-quarters of the states must ratify an amendment before it becomes part of the Constitution.

In terms of what the ERA says, the version that was sent to the states in 1972 is very short. It simply says that that rights shall not be denied based on sex. And it was increasingly controversial when it was proposed in the 1970s, a lot of states ratified it quite quickly, and then that progress slowed dramatically as different organizations really urged state legislatures to examine not just the words of it, which sound pretty simple, but what it could be used to do.

As a result, a total of 35 states ratified it by the deadline. It did have a seven-year deadline when it was proposed, so that deadline would have been in March of 1979. And then Congress extended it once to June 30, 1982. And when that deadline passed and there weren’t three-quarters of the states on board, the ERA effectively died.

The reason we’re talking about it today is that after about kind of 20-25 years of just sort of sitting there, some ERA activists and some feminist organizations started thinking a little more creatively, if they could get the progress going, could they pick up where they left off back in 1982?

And some made the argument that states could still ratify the 1972 ERA and if they had three more states, that would get them to 38, that was three-quarters, and bingo, it would happen.

So, Nevada ratified in 2017, Illinois ratified in 2018, and now Virginia claims to be the 38th state to ratify the Equal Rights Amendment.

In my paper, I explain what really is a pretty commonsense idea. The deadline was a deadline, June 30, 1982. After that date, the ERA no longer existed. It wasn’t pending before the states anymore. So, whatever it is that Virginia says that it did, you can’t ratify a constitutional amendment that doesn’t exist.

If activists want the ERA be part of the Constitution, they’re going to have to start over again. They’re going to have to get Congress to propose it again and get it to the states for ratification. But the 1972 ERA is dead.

del Guidice: So proponents of the ERA, a local Richmond news station had said that these people are saying that the amendment will enshrine equality for women in the Constitution. Would you say, knowing what the ERA is, is that the case?

Jipping: As I said, the debate about what the ERA would or wouldn’t do, either intended or unintended consequences, has been going on since literally the 1920s.

In the very beginning, believe it or not, feminist groups and labor unions strongly opposed the ERA because they said it could be used to prevent legislation that would actually benefit women. Today, those roles are reversed, but there’s a lot of discussion and has been since it was proposed in 1972 about how much mischief it could actually be used for.

… This goes to your question as well, the other debate is whether existing law, either provisions of the Constitution, state constitutions, many states have passed their own ERAs, whether those laws that are in place today, that certainly weren’t in place in the 1970s, provide the legal protection that women need.

There’s certainly debates about those questions. I do think that the threat or the possibility that something even as simple as the ERA could be used, especially in the courts, for all kinds of other things. I think that danger is much more real today even than it was in 1972.

We see all the time groups going to the courts with a Constitution that says one thing and they persuade judges that it says something else. And we end up changing the country in profound ways that were never intended. And I think whether it’s abortion, the LGBT agenda, all sorts of things that would very definitely be on the litigation agenda, should the ERA become part of the Constitution.

del Guidice: You touched on this a bit earlier, but to drill down into it a little bit more, Virginia is claiming, as you mentioned, to be the 38th state to pass the ERA. So does that mean that it’s now a constitutional amendment? You hinted on this, but just to clarify for everyone listening.

Jipping: The process, and this is laid out by a federal statute, once a state does what Virginia did, it sends what the statute calls ratifying documents to the Office of the Federal Register—that’s an agency here in Washington that publishes the federal register, which is a record of regulations.

Once the Office of Federal Register has received those documents from 38 states, they notify the archivist of the United States and then the archivist does a review of those documents for what the statute calls legal sufficiency. Basically just to make sure that they’re legally sound.

And then if there are 38 states’ ratifications that are legally sound, it becomes part of the Constitution. Congress has no role, they don’t have to take any vote. The president isn’t involved.

So the question is, if the ERA expired in 1982, if it literally was not available for ratification, when these documents get here to Washington and the archivist does his review, what’s he going to say? Can he say that ratification of a amendment that doesn’t exist is legally sound? I don’t think so. But that’s the process that is spelled out in federal statute.

And I suppose almost everything ends up in court at some point in this country. So, I suppose at some point thereafter there might be a lawsuit. But that’s what has to happen next.

del Guidice: Five states tried to take back their support of the ERA. Can a state do that?

Jipping: Well, that’s an important part of the ERA story. As I said, the effort to get states to ratify the ERA really took off in 1972, and a couple of dozen states very quickly ratified it. Not only did the pace of new states dwindle, but because of the rapidly increasing opposition, as you said, five of the states that did ratify, they rescinded that ratification.I believe those rescissions are valid.

In other words, until 38 states ratify the amendment, it’s not an amendment. It’s not part of the Constitution. It’s still pending. And a state can make its decision, they can change their mind, they can do one thing one year and five years later, undo it if they want. Until that ratification deadline happens, the amendment is pending and as long as it’s pending, states can do what they want to do.

In my opinion, by the deadline, by the 1982 deadline, only 30 states had validly ratified the ERA and they would’ve needed eight more. But my dad said close count only counts in tiddlywinks or horseshoes or something and 35 is just as far away from 38 as 30 is. Either way, the ERA is dead.

del Guidice: In 2019, there was a House committee that passed a bill that would have removed the 1982 deadline for the ERA. So could the Senate and House, hypothetically speaking, retroactively remove that 1982 deadline and let the Equal Rights Amendment move forth?

Jipping: No. As I said, June 30, 1982, the ERA is dead. Congress cannot amend a bill that has failed. That would be like introducing an amendment today to a bill that was introduced three years ago or something like that. It doesn’t exist. A deadline is a deadline.

The Constitution gives Congress a significant authority to propose constitutional amendments and the Supreme Court has held clearly that that includes the authority to set a deadline. Congress did that. The deadline is passed. Everyone knows what a deadline is. The deadline has passed. As frustrating as that might be to some political activists, as much as people might wish that hadn’t happened, it did.

The Congressional Research Service, which, as I’m sure you know, is a well-respected, widely used resource of nonpartisan research—when I worked in the United States Senate, we relied on them frequently—they’ve published a huge work about the Constitution and its interpretation. I mean, it’s literally almost 3,000 pages long, covering every subject imaginable.

And for more than 20 years, the Congressional Research Service has said that on June 30, 1982, the ERA died. We can make, and lawyers can make, any subject really complicated no matter how simple it is, but that’s the deadline. It passed. The ERA is dead.

del Guidice: So you have people celebrating it even still, even though we have this deadline that has passed, and if these advocates still wanted to go about and actually do this the right way, how would they go about doing that? Would they reintroduce it? What are the steps to that?

Jipping: The process is the same as they did for the 1972 ERA. A member of Congress would introduce a joint resolution that includes a deadline, if there is one. It designates whether states must ratify the amendment by legislature or convention. And then it includes the language of the amendment.

If two-thirds of Congress pass that, it gets sent to the states, three-fourths of the states ratify it, it becomes part of the Constitution. So that process has to start over.

As I said, since the ’20s, those resolutions to propose the ERA have been introduced over a thousand times. Everybody knows that that’s the process and that if it doesn’t work the first time, you do it again, you start over.

As I say, I realize that’s frustrating. With the opposition to the original ERA there’d probably be more opposition now, and so the likelihood that it would become part of the Constitution is probably lower.

I can see where they would want to grasp whatever strategy they thought could give them a leg up on that, but this isn’t it. The deadline passed 37 years ago.

del Guidice: Earlier this week, Virginia Attorney General Mark Herring said per American University Radio, “I am committed as ever to making sure we have and use every single tool at our disposal to make sure the Equal Rights Amendment becomes part of the United States Constitution.” So in his role as Virginia attorney general, is there anything he can do to achieve that?

Jipping: You’ll notice that he didn’t say anything specific about whether the 1972 ERA has in fact been ratified by Virginia. Interestingly, in 1994, the deputy attorney general of Virginia issued an opinion saying specifically, he was responding to a member of the legislature that the ERA was no longer pending and could not be ratified. That was 25 years ago.

So Attorney General Herring I’m not aware has reversed that. What he’s saying is he wants to see the ERA become part of the Constitution. Lots of people do, and there’s a process for that.

del Guidice: Alabama, South Dakota, and Louisiana, they’re suing the head archivist of United States saying that it would be illegal to add the ERA as an amendment. What’s your perspective on that suit and where do you think it will go?

Jipping: As I mentioned about the process, the archivist is sort of the final step of the process. He has to make that review to make sure that the documents he’s received from at least 38 states are legally sound. He hasn’t done that yet, he hasn’t made any decision on that yet. So the lawsuit is probably a little premature, but they’re focusing it in the right place.

In other words, they’re following federal statute as to what the process actually is. It doesn’t become part of the Constitution unless the archivist issues a proclamation to that effect. So he’s where the buck stops, and that’s the final decision that has to be made. But they’re right to do it, and it really doesn’t matter whether your state has or hasn’t ratified.

I wish that more people, including in this case, feminist groups and so on, … would be more united on the process that has to be followed for our government to function under the Constitution.

We all ought to agree on that, that the Constitution’s rules apply to everyone. No one gets to skirt around a different way, or come up with a way of avoiding what the Constitution requires. Doesn’t matter what your politics are.

We all ought to respect that and insist that the Constitution’s rules be followed. If we do in this case, the ERA has to start over.

del Guidice: Going off of that point, Tom, really quickly, why don’t you think there were Virginia lawmakers—maybe there were a few, I didn’t see any and I could have missed it—that said, “Hey, this deadline has been missed. We have no business doing this”?

Jipping: Unfortunately, I think we have more politicians than statesman in a lot of our legislatures. I saw quotes from members of the Virginia Legislature, including Republicans, who said, “Well, just let the courts sort that out. This is an important time to take a stand so let’s just let the courts figure that out.”

That’s a complete abdication of their responsibility and it violates their oath of office. They took an oath to support and defend the Constitution and that includes the Constitution’s rules for amending it. And so to simply kind of duck out of that and weasel out of that responsibility and just say, “Ah, the courts will sort it out,”—good grief.

The courts have done enough damage to our country in taking authority away from our elected representatives and away from the people for making these kinds of decisions. That was more than disappointing to hear that.

We ought to have our representatives follow their oath of office, insist on those basic rules, and then we can handle and address our political differences.

But if the system itself is going to crumble because our elected representatives don’t care about it, then we’re in bigger trouble than I thought.

del Guidice: Tom, you mentioned this a little bit earlier, but saying that everything usually ends up in court at some point in time. So, … depending on what happens with different states ratifying, do you foresee a legal battle at some point with the ERA?

Jipping: Well, I do. If, for example, the archivist were to say, as I think he should, that the last three states to supposedly ratify—that would be Nevada, Illinois in Virginia—their ratifications are not legally sound, and shouldn’t be recognized, then I suppose there might be states in left-wing groups that would go to court to try to force him to do that.

… There’s a lot at stake with something that is this symbolic, something that has been around this long. It stands for an awful lot, both positively and negatively. So a lot of political interest would see, one way or another, that their interests are tied up in the ERA, and that usually means that someone will go to court.

del Guidice: You can find Tom’s report, “The 1972 Equal Rights Amendment Can No Longer Be Ratified“—Because It No Longer Exists on heritage.org if you want to learn more about it. Tom, thank you so much for being with us on The Daily Signal Podcast.

Jipping: Thanks for having me.