Case Study 2: The Equal Rights Amendment, 1972 to Today

The Question

Is the Equal Rights Amendment — proposed in 1923, passed by Congress in 1972, ratified by 35 states by the 1979 deadline, and ratified by three additional states between 2017 and 2020 — now part of the United States Constitution? Or is it a failed amendment whose post-deadline ratifications carry no legal force?

This is not a hypothetical. The question is being litigated in real time. Serious constitutional scholars take both positions. The answer matters for women's constitutional status, for the interpretation of the Equal Protection Clause, and for our broader understanding of how Article V works.

The Text and the Vision

The ERA, in the form passed by Congress in March 1972, 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.

The amendment was the product of nearly five decades of advocacy, beginning with Alice Paul's drafting of an "Equal Rights Amendment" in 1923 (three years after the ratification of the 19th Amendment, which gave women the vote). Paul and her allies in the National Woman's Party argued that the 19th Amendment had given women political citizenship but not full legal equality, and that a constitutional amendment was needed to root out the body of state and federal laws that distinguished by sex — laws governing employment, property, custody, jury service, military service, and more.

For decades, the proposal struggled. Some labor-affiliated women's groups in the early-to-mid-20th century opposed it on the grounds that it would invalidate protective labor legislation for women workers. The amendment was reintroduced in nearly every Congress without making it through both chambers.

By the late 1960s and early 1970s, the political ground had shifted. The civil rights movement had given the public a vocabulary for thinking about legal equality. The women's movement was rising. Title VII of the 1964 Civil Rights Act had banned sex discrimination in employment. The 1971 Reed v. Reed decision had begun the Court's use of the Equal Protection Clause to strike down sex-discriminatory state laws.

In March 1972, the Senate passed the ERA 84-8. The House had passed it 354-23 the previous October. The amendment went to the states with a seven-year ratification deadline (Congress had begun including such deadlines in the early 20th century, though their constitutional status was contested even then).

The Initial Wave

In the first year, 22 states ratified. By 1973, 30 states had ratified. By 1977, the count was at 35. The amendment needed three more.

And then it stopped.

Why Ratification Stalled

Several forces converged in the late 1970s.

Phyllis Schlafly's STOP ERA campaign. Schlafly, an Illinois conservative activist, organized a national campaign against the amendment. Her arguments — articulated in mass mailings, rallies, and a regular newsletter — emphasized that the ERA would (in her telling) require women to be drafted into combat, eliminate women's preferential treatment in divorce and custody proceedings, lead to unisex bathrooms, and undercut traditional family structures. Some of these claims were contested by ERA supporters; others were debatable predictions about how courts would apply the amendment. Schlafly's campaign was extraordinarily effective at mobilizing skeptical women, particularly in evangelical and Catholic communities.

Concerns about specific applications. Some opponents raised more focused concerns: that the ERA might affect single-sex schools and colleges, women-only fitness facilities and athletic teams, and the legal status of pregnancy as a category for special treatment. Many of these concerns turned out to be predictable from the actual constitutional text, though their resolution under the amendment would have depended on how the Court interpreted "equality of rights . . . on account of sex."

The shifting political environment of the late 1970s. The Carter years saw declining momentum for liberal causes generally. The conservative movement that would carry Ronald Reagan to the presidency in 1980 was building, and the ERA became a marker of the cultural divide.

Competing ratification deadlines and reversals. Five states (Nebraska, Tennessee, Idaho, Kentucky, and South Dakota) voted to rescind their ratifications between 1973 and 1979 — though whether rescission was constitutionally valid was, and is, contested.

In 1978, Congress voted to extend the ratification deadline from March 1979 to June 1982. Even with the extension, no additional states ratified in time. By June 30, 1982, the ERA was, by the most common reading, dead.

The 21st-Century Revival

Then, in the 2010s, things got interesting again.

Nevada ratified the ERA on March 22, 2017 — the 35th anniversary of the amendment's congressional passage. The ratification was largely symbolic at the time; the deadline had passed 35 years earlier.

Illinois ratified on May 30, 2018.

Virginia ratified on January 27, 2020, becoming the 38th state to ratify (counting the original 35, the post-deadline three, and disregarding the five rescissions).

Suddenly the question was no longer rhetorical: 38 states had now adopted the ERA. The constitutional threshold of three-fourths had, by one count, been met. Was the amendment now part of the Constitution?

This is where serious constitutional disagreement enters. The arguments fall on three main axes.

Argument 1: The Deadline Is Binding

Position: The seven-year (later ten-year) deadline imposed by Congress was a valid constitutional act. After June 30, 1982, the proposal lapsed. Subsequent state ratifications are nullities — they ratify a proposal that no longer existed.

Strongest support: The Office of Legal Counsel of the Department of Justice issued an opinion in 2020 concluding that the deadline was binding and that the ERA was not part of the Constitution. This OLC opinion was reaffirmed by the Trump administration's OLC in 2020 and not retracted by the Biden administration. The reasoning: Article V is silent on deadlines, but Congress has the power to set the terms on which it proposes amendments, and a deadline is a legitimate term.

Adherents: Most current OLC analysis; many constitutional scholars, including some not generally on the political right.

Argument 2: The Deadline Is Not Binding

Position: Article V's text does not authorize ratification deadlines. The deadline-in-the-resolving-clause approach (deadline in the text Congress passes) might be different from the deadline-in-the-preamble approach (deadline only in the introduction), but in any event, a deadline is not part of the amendment itself, only the proposal. If three-fourths of the states have now ratified, the amendment is part of the Constitution.

Strongest support: This is the position taken by ERA advocates and by the State of Virginia in litigation pursued after its 2020 ratification. They cite the 27th Amendment, which was ratified 203 years after Congress proposed it, as evidence that a long delay does not invalidate ratification.

Adherents: Erwin Chemerinsky and other prominent constitutional scholars have written in support; the National Constitution Center has hosted debates with serious legal scholars on both sides.

Argument 3: Rescissions Are Valid (or Invalid)

Position: Five state legislatures voted to rescind their ratifications. If rescissions are valid, the count of ratifying states drops below the constitutional threshold of 38, and the ERA fails on the math even setting the deadline question aside. If rescissions are invalid, the count of ratifying states is at 38 (or higher).

Strongest argument that rescissions are invalid: Once a state ratifies, the act is complete and cannot be undone — analogous to a state's act of joining the Union, which cannot be reversed. Several constitutional precedents (the Reconstruction-era ratification of the 14th Amendment, in which some Southern states' efforts to rescind were not honored) support the position.

Strongest argument that rescissions are valid: State legislatures can act on the same matter twice, and there is no constitutional rule barring legislative reconsideration of ratification before federal certification. The rescission question is contested in the constitutional literature, with scholars on both sides.

Where the Litigation Stands

In 2020, the State of Virginia (joined by Illinois and Nevada) sued the Archivist of the United States, asking that the ERA be certified as the 28th Amendment. In 2021, a federal district court ruled against Virginia on the deadline question. In 2023, the D.C. Circuit affirmed.

In 2025, the question reached the Supreme Court on a separate procedural posture. As of early 2026, the question of whether the ERA is part of the Constitution remains live and unresolved at the highest legal levels.

What the Case Shows About Article V

The deadline question matters. Article V is silent on deadlines, but the political practice has been for Congress to include them, and that practice has been treated by the Court (in Coleman v. Miller, 1939) as raising "political questions" that courts should not second-guess. Whether Coleman would govern here, and whether the OLC opinion would survive Supreme Court review, is genuinely uncertain.

The amendment process is more political than the text suggests. If the ERA is not now part of the Constitution, the reason has to do with the political vagaries of 1979–82, not with any failure of constitutional process. If it is part of the Constitution, certification depends on a federal officer (the Archivist) and on litigation outcomes. Either way, "the amendment process" is not a tidy procedural matter; it is a political and legal contest.

Constitutional change is hard, but not in the way Article V seems to say. On the books, the path is supermajorities of Congress and three-fourths of states. In practice, the path is a much messier process of social mobilization, political timing, bureaucratic interpretation, and judicial review. The ERA's strange forty-eight-year journey from congressional passage to contested constitutional status is not unique. The 27th Amendment's 203-year journey is even stranger. Constitutional change is a process, sometimes a very long one, and the moments when it succeeds or fails are shaped by forces well beyond the text of Article V.

A reasonable person could land on either side. The question of whether the ERA is part of the Constitution is genuinely contested by serious legal scholars. This case study has not adjudicated it. What it has done — what this textbook tries to do throughout — is lay out the strongest version of each side's argument, the political history that produced the question, and the legal questions that will determine the answer. From there, the work is yours.