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116th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 116-378
======================================================================
REMOVING THE DEADLINE FOR THE RATIFICATION OF THE EQUAL RIGHTS
AMENDMENT
_______
January 16, 2020.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Nadler, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.J. Res. 79]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
joint resolution (H.J. Res. 79) removing the deadline for the
ratification of the equal rights amendment, having considered
the same, report favorably thereon with an amendment and
recommend that the joint resolution as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 14
Committee Consideration.......................................... 14
Committee Votes.................................................. 14
Committee Oversight Findings..................................... 16
New Budget Authority, Entitlement Authority, and Tax Expenditures 16
Congressional Budget Office Cost Estimate........................ 16
Duplication of Federal Programs.................................. 17
Performance Goals and Objectives................................. 17
Advisory on Earmarks............................................. 18
Section-by-Section Analysis...................................... 18
Dissenting Views................................................. 19
The amendment is as follows:
Strike all that follows after the resolving clause and insert
the following:
That notwithstanding any time limit contained in House Joint Resolution
208, 92d Congress, as agreed to in the Senate on March 22, 1972, the
article of amendment proposed to the States in that joint resolution
shall be valid to all intents and purposes as part of the United States
Constitution whenever ratified by the legislatures of three-fourths of
the several States.
Purpose and Summary
H.J. Res. 79 is a bipartisan joint resolution that would
eliminate the deadline for the ratification of the Equal Rights
Amendment (ERA) to the United States Constitution. The original
deadline set by the House of Representatives and the Senate for
ratification of the ERA was March 22, 1979. In 1978, the House
and Senate extended that deadline to June 30, 1982.\1\ H.J.
Res. 79, introduced by Rep. Jackie Speier (D-CA) and co-
sponsored by 224 other Members, states that ``notwithstanding
any time limit contained in'' the previous deadline passed by
Congress for ratification of the ERA, the ERA ``shall be valid
to all intents and purposes . . . whenever ratified by the
legislatures of three-fourths of the several States.'' Senator
Ben Cardin (D-MD) has introduced an identical bipartisan
resolution in the Senate, S.J. Res. 6.
---------------------------------------------------------------------------
\1\See H.J. Res. 638, 95th Cong. (1978).
---------------------------------------------------------------------------
Background and Need for Legislation
History of the Equal Rights Amendment
Advocates for gender equality have supported a
constitutional amendment guaranteeing equal treatment under the
law for almost one hundred years. Alice Paul, a leader of the
National Woman's Party, proposed the first such amendment in
1923, soon after the ratification of the Nineteenth Amendment
(guaranteeing women's suffrage).\2\ Paul's amendment,
introduced in both Houses of the 68th Congress, stated: ``Men
and women shall have equal rights throughout the United States
and every place subject to its jurisdiction.''\3\ It also
authorized Congress to ``enforce this article by appropriate
legislation.''\4\
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\2\Thomas H. Neale, Cong. Res. Serv., The Proposed Equal Rights
Amendment: Contemporary Ratification Issues 1 (July 2018) (``2018 CRS
Report'').
\3\Leslie W. Gladstone, Cong. Res. Serv., The Proposed Equal Rights
Amendment 5 (Mar. 1982) (``1982 CRS Report'').
\4\Id.
---------------------------------------------------------------------------
The Judiciary Committees of the House and Senate held
hearings on the Paul amendment as early as 1929, and the
amendment was reported out of those Committees on several
occasions.\5\ In 1943, the Senate Judiciary Committee favorably
reported a version of the amendment that stated: ``Equality of
rights under the law shall not be denied or abridged by the
United States or by any State on account of sex. Congress and
the several States shall have power, within their respective
jurisdictions, to enforce this article by appropriate
legislation.''\6\ By 1944, both the Republican and Democratic
parties added endorsements of the ERA to their platforms.\7\
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\5\Id.
\6\Id.
\7\2018 CRS Report at 11.
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The House, however, took no substantial action on the ERA
until 1970. That year, Rep. Martha Griffiths (D-MI) filed a
discharge petition in the House to bring the ERA to the floor.
The discharge petition was adopted, and the ERA passed the
House by a wide margin.\8\ The Senate Judiciary Committee also
held several days of hearings in 1970 on its version of the
ERA, but it failed to gain sufficient votes that year.\9\
---------------------------------------------------------------------------
\8\Id.
\9\2018 CRS Report at 11-12.
---------------------------------------------------------------------------
On October 12, 1971, the House voted by a 354 to 24 margin,
to approve H.J. Res. 208, which stated:
Resolved by the Senate and House of Representatives
of the United States of America in Congress assembled
(two-thirds of each house concurring therein), That
The following article is proposed as an amendment to
the Constitution of the United States, which shall be
valid to all intents and purposes as part of the
Constitution when ratified by the legislatures of
three-fourths of the several States within seven years
of its submission by the Congress:
``Section 1. Equality of rights under the law shall
not be denied or abridged by the United States or 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.''\10\
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\10\Id. at 13 (quoting H.J. Res. 208, 92d Cong. (1971)).
On March 22, 1972, the Senate passed the above-quoted
version of the ERA by a vote of 84 to 8.\11\
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\11\Id. at 12.
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By the end of 1977, a total of 35 out of a required 38
States had ratified the ERA.\12\ As Congress approached the
seven-year deadline for ratification set in the preamble to the
ERA, it considered and enacted a joint resolution, H.J. Res.
638, extending the deadline through June 30, 1982.\13\ As
discussed further below, this Committee's report accompanying
H.J. Res. 638 (the ``1978 Committee Report'') explained
Congress's bases and authority to extend the ratification
deadline.\14\ No additional States ratified the ERA in the time
between Congress's enactment of the extension and the
expiration of the new deadline. Additionally, between 1973 and
1979, five States enacted measures purporting to rescind their
prior ratifications.\15\
---------------------------------------------------------------------------
\12\2018 CRS Report at 14.
\13\H.J. Res. 638, 95th Cong. (1978).
\14\See H. Rep. No. 95-1405 (1978) (``1978 Committee Report'').
\15\2018 CRS Report at 14. Those states were Nebraska, Tennessee,
Idaho, Kentucky, and South Dakota. Id.
---------------------------------------------------------------------------
Contemporary Ratification Efforts
After the ERA's ratification deadline expired in 1982, a
number of measures were proposed in Congress that would have
restarted the entire ERA ratification process. Legal
perspectives on this matter, however, shifted with the
ratification of the Twenty-Seventh Amendment in 1992. That
amendment, which prohibits any alterations in the salaries of
Members of Congress between election periods, had been
introduced by James Madison in 1789 and quickly approved in the
House and Senate.\16\ The so-called ``Madison Amendment'' did
not contain any self-imposed deadline for ratification and fell
into obscurity. Little action occurred for nearly two
centuries, until a movement to ratify it spread in the 1980's.
Dozens of State legislatures ratified the amendment, and it
received the requisite votes from 38 States in 1992.\17\ The
Archivist of the United States certified the Twenty-Seventh
Amendment as having been ratified shortly thereafter.\18\ To
avoid doubts as to whether the amendment had been properly
ratified, the House and Senate subsequently adopted resolutions
stating that the amendment was ratified by a sufficient number
of States and was now ``part of the Constitution.''\19\
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\16\Id. at 20-21.
\17\Id. at 21.
\18\Id. at 21-22.
\19\H. Con. Res. 320, 102d Cong. (1992); S. Con. Res. 120, 102d
Cong. (1992).
---------------------------------------------------------------------------
The ratification of the Twenty-Seventh Amendment provided
support for the proposition that the ERA can be ratified based
on its prior approvals in the House and Senate and based on the
prior ratifications by 35 States, so long as the deadline for
ratification is extended and three more State legislatures
ratify it.\20\ Beginning in the 112th Congress, Representatives
and Senators have introduced joint resolutions similar to H.J.
Res. 79 that would rescind the prior ratification deadline and
allow the earlier-proposed ERA to become ``valid to all intents
and purposes . . . whenever ratified'' by the legislatures of
three-fourths of the several States.\21\
---------------------------------------------------------------------------
\20\See, e.g., Allison L. Held, Sheryl L. Herndon & Danielle M.
Stager, The Equal Rights Amendment: Why the ERA Remains Legally Viable
and Properly Before the States, 3 Wm. & Mary J. Women & L. 113 (1997).
\21\E.g., H.J. Res. 47, 112th Cong. (2011); S.J. Res. 39, 112th
Cong. (2012).
---------------------------------------------------------------------------
In 2017, Nevada became the first State in decades to ratify
the ERA. Illinois followed in 2018, bringing the total number
of ratifying States to 37 (including those that had purported
to rescind their ratifications).\22\ An effort to ratify the
ERA was narrowly defeated in Virginia last year. It is likely
that the Virginia legislature will once again attempt to ratify
the ERA in 2020.
---------------------------------------------------------------------------
\22\2018 CRS Report at 5-6.
---------------------------------------------------------------------------
Continuing Need for the ERA
In many respects, the courts have already
constitutionalized women's equality under the law through
interpretations of the Fourteenth Amendment's Equal Protection
Clause. As Justice Ruth Bader Ginsburg explained in her 1996
opinion for the Supreme Court in United States v. Virginia, the
Court ``has repeatedly recognized that neither federal nor
state government acts compatibly with the equal protection
principle when a law or official policy denies to women, simply
because they are women, full citizenship stature--equal
opportunity to aspire, achieve, participate in and contribute
to society based on their individual talents and
capacities.''\23\ Justice Ginsburg herself led many of these
litigation efforts--beginning with a 1971 case, Reed v. Reed,
in which the Court struck down a law that gave males a
preference over females in applying to administer a deceased
family member's estate.\24\
---------------------------------------------------------------------------
\23\518 U.S. 515, 532 (1996).
\24\404 U.S. 71 (1971).
---------------------------------------------------------------------------
Although the Supreme Court has not ``equat[ed] gender
classifications, for all purposes, to classifications based on
race or national origin,'' it has ``carefully inspected
official action that closes a door or denies opportunity to
women (or to men).''\25\ Any policy that differentiates between
the sexes must be based on an ``exceedingly persuasive''
justification.\26\ Indeed, Justice Ginsburg has said that
``[t]here is no practical difference between what has evolved
and the ERA.''\27\ Many scholars agree.\28\
---------------------------------------------------------------------------
\25\Virginia, 518 U.S. at 532.
\26\Id. at 533.
\27\Jeffrey Rosen, The New Look of Liberalism on the Court, N.Y.
Times (Oct. 5, 1997).
\28\See Reva B. Siegel, Constitutional Culture, Social Movement
Conflict and Constitutional Change: The Case of the de Facto ERA, 94
Cal. L. Rev. 1323, 1333-34 (2006) (collecting similar statements).
---------------------------------------------------------------------------
Nonetheless, advocates and scholars continue to argue that
ratification of the ERA would have significant value. As one
scholar recently explained:
The current ERA movement is primarily concerned with
the difficulties that women continue to face in the
United States, despite the fact that the Equal
Protection Clause of the Constitution has been
interpreted to prohibit sex discrimination, and many
statutes also prohibit sex discrimination. These
problems include pay inequity, violence against women,
employers' failures to accommodate pregnancy, and the
general lack of public support for childrearing, which
negatively affects working mothers. The movement is
also concerned with women's underrepresentation in
positions of political and economic power. ERA
proponents argue that putting sex equality into the
text of our Constitution, in the form of the ERA, would
have a positive impact on all these fronts.\29\
---------------------------------------------------------------------------
\29\Julie C. Suk, An Equal Rights Amendment for the Twenty-First
Century: Bringing Global Constitutionalism Home, 28 Yale J. L. &
Feminism 391, 398 (2017).
Justice Ginsburg has also spoken of the symbolic value of
ratifying the ERA--as well as the ability of the ERA to provide
more lasting guarantees than statutory protections or even
Supreme Court precedent interpreting other parts of the
Constitution. When asked in a 2014 interview what amendment she
---------------------------------------------------------------------------
would most like to add to the Constitution, she answered:
If I could choose an amendment to add to this
Constitution, it would be the Equal Rights Amendment .
. . . It means that women are people equal in stature
before the law. That's a fundamental constitutional
principle. I think we have achieved that through
legislation, but legislation could be repealed, it can
be altered. I mentioned Title VII of the Civil Rights
Act, and the first one was the Equal Pay Act. But that
principle belongs in our Constitution and is in every
constitution written since the Second World War. So I
would like my granddaughters, when they pick up the
Constitution, to see that that notion, that women and
men are persons of equal stature, I'd like them to see
that that is a basic principle of our society.\30\
---------------------------------------------------------------------------
\30\Id. at 397 (quoting Justices Scalia and Ginsburg on the First
Amendment and Freedom, C-SPAN (Apr. 17, 2014)).
In a hearing before the Judiciary Committee's Subcommittee
on the Constitution, Civil Rights, and Civil Liberties (the
``Subcommittee on the Constitution''), one of the witnesses,
scholar and practitioner Kathleen M. Sullivan, also spoke about
---------------------------------------------------------------------------
the symbolic nature of ratifying the ERA:
Given the vital role the U.S. Constitution has played
in inspiring and informing the written constitutions of
other nations, it is a national embarrassment that the
other democratic nations of the world are so far ahead
of ours in providing for sex equality in their
constitutions . . . . The ratification of the amendment
by a 38th State will complete the process and bring our
Constitution at last into line with the constitutions
of all our peer nations. Congress should facilitate the
most expeditious path possible to this long-overdue
result.\31\
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\31\The Equal Rights Amendment: Hearing Before the H. Comm. on the
Judiciary, Subcomm. on the Constitution, Civil Rights, and Civil
Liberties, 116th Cong. (Apr. 30, 2019) (written testimony of Kathleen
M. Sullivan at 2-3) (``Sullivan Testimony'').
Ms. Sullivan further explained how the protections offered
to women under the Equal Protection Clause are not a substitute
---------------------------------------------------------------------------
for ratification of the ERA:
[T]he judicial interpretation of the Equal Protection
Clause is no substitute for an amendment to the
Constitution formally enshrining equality on the basis
of sex as one of our enduring and foundational
principles. To be sure, the Supreme Court has since the
1970s read into the Fourteenth Amendment's Equal
Protection Clause (and its equivalent protections under
the Fifth Amendment's Due Process Clause) the
interpretation that the States and federal government
may not discriminate on the basis of sex without a
close fit to an important justification. It was not
always thus; before the 1970s, the Supreme Court had
upheld against constitutional challenge state laws
excluding women from jury service, admission to the bar
as lawyers and even employment as bartenders. . . .
This Nation should proclaim its fidelity to a principle
of sex equality that will endure for the ages to come,
and not turn on the vicissitudes of Supreme Court
appointments and decision-making.\32\
---------------------------------------------------------------------------
\32\Id. at 3-4.
Some ERA proponents further contend that the ERA could
serve as a constitutional foundation to support legislation in
areas such as accommodations for pregnant workers, paid
parental leave, childcare, and workplace flexibility laws.\33\
Because the ERA would empower Congress to enforce its
provisions through legislation, it could provide a basis for
Congress to engage in affirmative efforts to support gender
equality both at home and in the workplace. Additionally, under
some theories, the ERA could provide a basis for plaintiffs to
challenge laws or policies that have a disparate impact on
women,\34\ or to support efforts to create gender balance in
certain contexts.\35\ Additionally, the ERA's prohibition
against discrimination ``on account of sex'' could be
interpreted to prohibit discrimination on the basis of sexual
orientation or gender identity.
---------------------------------------------------------------------------
\33\Suk, supra note 28, at 429-34.
\34\Id. at 394 & n.47.
\35\Id. at 435-36.
---------------------------------------------------------------------------
Congress's Authority to Extend the Ratification Deadline
In the course of considering H.J. Res. 638 during the 95th
Congress, this Committee thoroughly addressed and affirmed
Congress's authority to extend the deadline for ratifying the
ERA.\36\ To aid its analysis, the Committee reviewed ``existing
judicial, congressional, and historical precedents'' and
``consulted a number of constitutional scholars.''\37\ In
addition, the Committee took into account a legal opinion
offered by the Office of Legal Counsel (OLC) in the Department
of Justice, which was issued in response to a request for the
Department's views.\38\ Witnesses testifying before the
Subcommittee on the Constitution during the current Congress
addressed these issues as well. The Committee fully concurs in
the treatment of these matters in the 1978 Committee Report and
summarizes them here.
---------------------------------------------------------------------------
\36\See 1978 Committee Report at 4-12.
\37\Id. at 5.
\38\Id. That opinion (``1977 OLC Opinion'') has not been
independently published but is available at pp. 7-27 in Equal Rights
Amendment Extension: Hearings Before the Comm. on the Judiciary,
Subcomm. on Civil and Constitutional Rights, 95th Cong. (1977 and 1978)
(``H.J. Res. 638 Hearings'').
Article V of the Constitution provides in relevant
part:
The Congress, whenever two thirds of both Houses
shall deem it necessary, shall propose Amendments to
this Constitution, . . . which . . . shall be valid to
all Intents and Purposes, as Part of this Constitution,
when ratified by the Legislatures of three-fourths of
the several States, or by Conventions of three-fourths
thereof, as the one or the other Mode of Ratification
may be proposed by the Congress[.]''
In a 1921 case, Dillon v. Gloss, the Supreme Court affirmed
that Congress had the authority to set a deadline for ratifying
the Eighteenth Amendment (regarding prohibition of
alcohol).\39\ The Court described the power to set such a
deadline as ``an incident of [Congress's] power to designate
the mode of ratification.''\40\
---------------------------------------------------------------------------
\39\256 U.S. 368 (1921).
\40\Id. at 376.
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Although the Court in Dillon expressed a view that setting
a deadline may make sense as a policy matter,\41\ it held in a
subsequent case, Coleman v. Miller, that courts have no place
creating an implied deadline when Congress has decided not to
set one.\42\ Rather, the Court determined that the decision to
set a ratification deadline rests with Congress alone, based on
``the full knowledge and appreciation ascribed to the national
legislature of the political, social and economic conditions
which have prevailed during the period since submission of the
amendment.''\43\ The Court held that those questions are
``essentially political and not justiciable'' by the
courts.\44\ In short, Congress ``has the final determination of
the question whether by lapse of time its proposal of [an]
amendment ha[s] lost its vitality prior to the required
ratifications.''\45\
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\41\See id. at 375.
\42\307 U.S. 433 (1939).
\43\Id. at 454.
\44\Id. (emphasis added).
\45\Id. at 456.
---------------------------------------------------------------------------
Based on this case law and the plain text of Article V, Ms.
Sullivan explained in her testimony:
Congress indisputably has the power to clear away any
deadline that might be perceived as standing in the way
of ratification of the ERA by the next and thirty-
eighth State. The 1972 or 1979 Congress has no
constitutional authority to bind later Congresses to
their decisions that the deadline for ratification
would elapse in 1979 or 1982. . . .
To see why this is so, consider first the text of
Article V . . . Article V places no time limits on the
States' ratification process. Nothing in Article V says
that ratification must be synchronous, contemporaneous,
or bounded within any particular time frame. To the
contrary, Article V says simply that ``an amendment is
valid `when ratified.' There is no further step.''\46\
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\46\Sullivan Testimony at 7 (quoting Walter Dellinger, The
Legitimacy of Constitutional Change: Rethinking the Amendment Process,
97 Harv. L. Rev. 796, 398 (1983) (alterations omitted)).
Under Coleman, Congress arguably has its own independent
constitutional obligation to assess the reasonableness of any
time limit it sets even if that question is not justiciable in
any court.\47\ In making this assessment, the Committee notes
that other amendments such as the Twenty-Seventh Amendment have
been adopted with no time limit. Unlike the Eighteenth
Amendment at issue in Dillon, which related to the particular
and narrow social policy of prohibition, the ERA stands for a
broad and fundamental principle: namely, government
institutions may not discriminate on the basis of sex. The
Committee finds no less need to affirm that principle today
than in 1972 or 1978--and it finds no reason to believe that
such a principle will lose its vitality in the years to
come.\48\
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\47\See Coleman, 307 U.S. at 452-54; 1978 Committee Report at 10-
11.
\48\Cf. 1978 Committee Report at 11 (``At most, we need only
examine the current political, legal, and economic situation and
determine whether the amendment is still vital, whether the need for
the amendment still exists and whether it still represents an
appropriate solution to the problems it was originally designed to
solve. Nothing the committee or subcommittee heard in its hearings and
debates indicated other than an affirmative response to those
questions.'').
---------------------------------------------------------------------------
Sufficiency of a Simple Majority Vote
Additionally, the 1978 Committee Report explained why
Congress can change its ratification deadline for the ERA by a
simple majority vote in both Houses rather than requiring two-
thirds supermajorities. As the Report noted, ``[t]he
Constitution is quite explicit about those few instances in
which the extraordinary procedure of supermajority vote is
required.''\49\ One such instance, of course, is Article V--
which requires two-thirds votes in both Houses to propose a
constitutional amendment. But nothing in Article V states that
provisions relating to the ``mode of ratification'' for an
amendment--i.e., any procedural mechanisms that Congress may
adopt for the ratification process--must be passed by two-
thirds supermajorities as well.
---------------------------------------------------------------------------
\49\Id. at 6.
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Critically, the 1978 Committee Report further noted that
the ERA's original ratification deadline was not in the text of
the proposed amendment itself. Rather, the seven-year deadline
was in the ``proposing clause'' of the ERA, meaning it was
contained in the introductory language in H.J. Res. 208, which
proposed the amendment.\50\ The Committee noted that this
feature distinguishes the ERA from the deadline at issue in
Dillon, which was written into the text of the Eighteenth
Amendment itself.\51\ As OLC explained in its opinion, a
subsequent Congress could ``act to extend the seven-year
limitation period placed by the 92d Congress in the proposing
clause of the ERA. The 92d Congress had the power to make the
seven-year limit a part of the substantive amendment by placing
the limit within the text of the ERA itself. The fact remains
that it did not do so.''\52\
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\50\See id. at 7; H.J. Res. 208, 92d Cong. (1972).
\51\1978 Committee Report at 7; see U.S. Const. amend. XVIII
Sec. 3. The 1978 Committee Report explains some of the history
regarding ratification deadlines, noting that the Eighteenth Amendment
was the first to contain such a provision, evidently because some
Members of Congress were concerned about a large number of unratified
amendments that remained pending. 1978 Committee Report at 7-8.
Afterward, seven-year deadlines appear to have been added to proposed
constitutional amendments ``as a matter of custom and because the 7-
year limit in the 18th Amendment had received the stamp of approval of
the Supreme Court in Dillon v. Gloss.'' Id. at 8. Starting with the
Twenty-Third Amendment, Congress moved these deadlines to the
``proposing clause'' ``to avoid `cluttering up' the Constitution with
language that had no bearing on the substance of the amendment
itself.'' Id. at 8-9.
\52\H.J. Res. 638 Hearings at 13 (1977 OLC Opinion); see also 1978
Report at 9.
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Ultimately, H.J. Res. 638, which extended the ratification
deadline, passed by simple majorities in the House and
Senate.\53\ As Jefferson's Manual notes, the House voted to
table a privileged resolution asserting that a two-thirds votes
was required, and thereby ``determined . . . that only a
majority vote was required on such a measure.''\54\ Given this
established precedent, it is clear that only a simple majority
is required to effectuate H.J. Res. 79.
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\53\See 2018 CRS Report at 15.
\54\Jefferson's Manual Sec. 192, at 83-84.
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President's Signature Not Required
Although President Carter performed the ceremonial act of
signing H.J. Res. 638 after its passage in Congress, no such
signature by the President is required. As OLC's 1977 opinion
stated, such a resolution ``need not be presented to the
President for his approval. It has long been established that
the President has no role to play in the [constitutional]
amendment process.''\55\ President Carter himself noted that
his signature was not necessary and was done instead for its
symbolic effect. In his signing statement, he remarked,
---------------------------------------------------------------------------
\55\H.J. Res. 638 Hearings at 14 (1977 OLC Opinion).
As is well known, the Constitution does not require
that the President sign a resolution concerning an
amendment to the Constitution of the United States. But
I particularly wanted to add my signature to those of
the Speaker of the House and to the President pro tem
of the Senate, to again demonstrate as strongly as I
possibly can my full support for the ratification of
the Equal Rights Amendment.\56\
---------------------------------------------------------------------------
\56\``Equal Rights Amendment: Remarks on Signing H.J. Res. 638''
(Oct. 20, 1978), in Public Papers of the Presidents of the United
States: Jimmy Carter, 1978, at 1800-01 (1979).
The Committee likewise confirmed that ``the President has
no role in originally proposing the mode of ratification'' for
a constitutional amendment, and that ``[i]t is no more
necessary for the President to be involved subsequently.''\57\
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\57\1978 Committee Report at 16.
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Effect of Purported Rescissions by the States
The 1978 Committee Report also addressed in detail whether
States' subsequent efforts to rescind their ratifications of
the ERA should be given any legal effect. As noted previously,
five States have enacted measures purporting to rescind their
ratifications. In Coleman, the Supreme Court determined that
``the question of the efficacy of ratifications by state
legislatures, in the light of previous rejection or attempted
withdrawal, should be regarded as a political question
pertaining to the political departments, with the ultimate
authority in the Congress.''\58\ It follows as a matter of
logic that any question about the efficacy of a State's
ratification in light of a subsequent effort to rescind that
ratification is equally within Congress's ultimate authority.
---------------------------------------------------------------------------
\58\307 U.S. at 450.
---------------------------------------------------------------------------
The 1978 Committee Report noted that the constitutional
scholars who testified before the Committee ``generally agreed
that the decision as to whether rescissions are to be counted
is a decision solely for the Congress sitting at the time the
38th State has ratified [the ERA], as part of [Congress's]
decision as to whether an amendment has been validly
ratified.''\59\ The Committee agreed with these scholars that
``the decision most properly belongs to a subsequent Congress
to determine the efficacy of any attempted withdrawals of
ratifications'' of the ERA.\60\ The Committee during the
present Congress concurs with that view. As such, the validity
of any purported rescissions should be determined by the
Congress sitting at the time in which the issue is squarely
presented--that is, once a 38th State has ratified the ERA, the
Congress then in session should determine whether prior
purported rescissions are valid.
---------------------------------------------------------------------------
\59\1978 Committee Report at 13.
\60\Id.
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The Minority's and the Justice Department's Procedural Objections Are
Unavailing
During the hearing before the Subcommittee on the
Constitution, the Minority's witness, Professor Elizabeth Price
Foley, offered several arguments against Congress's authority
to remove the ERA's ratification deadline. First, relying on
the Supreme Court's decision in Dillon, Professor Foley
contended that ``because Congress's power to specify a
ratification deadline emanates from its power under Article V,
not Article I, any alteration of a ratification deadline must
occur via Article V's supermajoritarian process (two-thirds of
both houses of Congress).''\61\ Although Congress's authority
to set a deadline is indisputably an ``incident of its power to
designate the mode of ratification'' under Article V,\62\ it
does not follow that Congress is bound by Article V's
supermajority rule for every step it takes as part of the
ratification process. The text of Article V only requires a
two-thirds vote to ``propose Amendments to this
Constitution''--not to take all other steps incidental to that
process. It can scarcely be disputed, for example, that a two-
thirds vote is not required for either House of Congress to
take various procedural measures before formally proposing an
amendment, or to amend the draft text before the amendment is
voted upon.\63\ Furthermore, as explained above, the House's
determination in 1978 that only a majority vote was needed to
extend the ERA's deadline is now itself an established
precedent.
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\61\Equal Rights Amendment: Hearing Before the H. Comm. on the
Judiciary, Subcomm. on the Constitution, Civil Rights, and Civil
Liberties, 116th Cong. (Apr. 30, 2019) (written testimony of Professor
Elizabeth Price Foley at 5) (``Foley Testimony'').
\62\Dillon, 256 U.S. at 376.
\63\See Jefferson's Manual Sec. 192, at 83 (``The requirement of
the two-thirds vote applies to the vote on final passage and not to
amendments or prior stages'' (internal citations omitted)).
---------------------------------------------------------------------------
Second, Professor Foley contended that the Supreme Court in
Dillon declined to adopt a ``substance/procedure dichotomy,
whereby Congress can alter a specified ratification deadline,
so long as the original ratification deadline was contained in
the preamble rather than the text of the proposed amendment
itself.''\64\ But Dillon concerned a situation in which the
deadline was written into the text of the amendment itself. And
although Dillon suggested that Article V carries ``a fair
implication'' that ratification must occur in a ``sufficiently
contemporaneous'' manner,\65\ the Court in Coleman made clear
that Congress alone has the authority to set any ratification
deadlines, or to set none at all.\66\
---------------------------------------------------------------------------
\64\Foley Testimony at 5.
\65\Dillon, 256 U.S. at 375.
\66\Coleman, 307 U.S. at 454.
---------------------------------------------------------------------------
Professor Foley also pointed to a federal district court's
decision in Idaho v. Freeman.\67\ In that case, decided in
1981, the Idaho legislature sought a declaratory judgment that
its ratification of the ERA was not valid because Congress had
exceeded its authority when it extended the ERA's ratification
deadline, and because the State subsequently adopted a measure
purporting to rescind its ratification. The court ruled for
Idaho on both points. Once the 1982 ratification deadline for
the ERA expired, however, the Supreme Court vacated the court's
decision as moot.\68\ Thus, as Professor Foley acknowledged,
Freeman ``has no precedential value.''\69\
---------------------------------------------------------------------------
\67\529 F. Supp. 1107 (D. Idaho 1981), vacated as moot sub nom.
Nat'l Org. for Women v. Idaho, 459 U.S. 809 (1982).
\68\Nat'l Org. for Women, 459 U.S. 809.
\69\Foley Testimony at 6.
---------------------------------------------------------------------------
In any event, the Committee finds Freeman's reasoning
unpersuasive. As an initial matter, the district court ignored
Coleman's clear holding that both issues in the case--
Congress's authority with respect to ratification deadlines and
its treatment of rescissions of ratifications--are political
questions not amenable to resolution by the courts.\70\
Furthermore, the court's conclusion that extensions are
impermissible flowed more from its own policy view against
potentially disrupting the States' expectations than from any
analysis of the text of Article V or precedent. In the course
of holding in Dillon that Congress may permissibly set
ratification deadlines, the Supreme Court had observed that a
deadline can be fixed ``so that all may know what it is and
speculation on what is a reasonable time may be avoided.''\71\
From that, the court in Freeman took the view that setting a
ratification deadline ``is intended to infuse certainty into an
area which is inherently vague''--and that, in accordance with
that purpose, a congressional deadline ``once made and proposed
to the states cannot be altered.''\72\ But the fact that
Congress may choose to set a particular time frame for
ratification--and that there may be good reason to do so--
simply does not dictate the legal conclusion that it ``cannot''
alter that deadline later.
---------------------------------------------------------------------------
\70\The court in Freeman relied upon the observation by a three-
judge district court in Dyer v. Blair, 390 F. Supp. 1291, 1299 (N.D.
Ill. 1975), that ``a majority of the Court [in Coleman] refused to
accept'' the position that ``Congress has sole and complete power over
the entire amending process'' (emphasis added); see Freeman, 529 F.
Supp. at 1125. It is true that four Justices concurred separately in
Coleman to state this categorical view of Congress's ``exclusive power
to control submission of constitutional amendments.'' Coleman, 307 U.S.
at 457 (Black, J., concurring) (joined by Justices Roberts,
Frankfurter, and Douglas); see also id. at 458 (``To the extent that
the Court's opinion in the present case even impliedly assumes a power
to make judicial interpretation of the exclusive constitutional
authority of Congress over submission and ratification of amendments,
we are unable to agree.''). But Chief Justice Hughes's controlling
opinion for the Court made clear that--at the least--``the question,
what is a reasonable time [for ratification], lies within the
congressional province.'' Id. at 454. Additionally, Chief Justice
Hughes's controlling opinion stated that ``the question of the efficacy
of ratifications by state legislatures, in the light of previous
rejection or attempted withdrawal, should be regarded as a political
question pertaining to the political departments.'' Id. at 450; see
also id. at 458-59 (Black, J., concurring) (noting that the controlling
opinion ``declares that Congress has the exclusive power to decide the
`political questions' of whether a State whose legislature has once
acted upon a proposed amendment may subsequently reverse its
position.''
\71\256 U.S. at 376.
\72\529 F. Supp. at 1152.
---------------------------------------------------------------------------
Professor Foley likewise couched her views in policy terms,
arguing that an extension of a ratification deadline ``upsets
settled expectations of the States'' and that Congress should
not be entitled to ``rewrite th[e] rules'' simply because it
failed to obtain its desired result.\73\ When the Committee
acted to extend the ERA's ratification deadline in 1978,
however, it noted there was no evidence that any of the 35
States that had by then ratified the ERA had done so in
reliance on the notion that the amendment would be deemed void
if it was not ratified within seven years.\74\ In addition, the
States that more recently ratified the ERA plainly did so in
reliance on the notion that Congress can extend the
ratification deadline. At bottom, although the decision to
change a ratification deadline set by a prior Congress should
not be taken lightly, the present Congress must be free to make
its own judgment about whether a proposed amendment has ``lost
its vitality through lapse of time.''\75\ The Committee
concludes that the ERA remains vital today.
---------------------------------------------------------------------------
\73\Foley Testimony at 6.
\74\See 1978 Committee Report at 16; H.J. Res. 638 Hearings at 26
(1977 OLC Opinion).
\75\Coleman, 307 U.S. at 451.
---------------------------------------------------------------------------
The Committee is also unpersuaded by a recent OLC opinion
that effectively reversed the Department of Justice's prior
position and asserted that Congress cannot now remove the ERA's
ratification deadline.\76\ Despite having concluded in 1977
that Congress possessed the authority to extend the ERA's
ratification deadline, the Department now claims that Article V
of the Constitution ``does not authorize Congress to adjust the
terms of an amendment previously proposed to the States.''\77\
The Department has offered no support for this conclusion from
the text of Article V. To the contrary, as the Department
acknowledged in its prior opinion, ``[t]here is nothing in the
text of Art. V which would bar subsequent Congresses from
taking action with respect to the details of the ratification
process as distinguished from the substantive amendment itself
while the amendment is being considered by the States.''\78\
---------------------------------------------------------------------------
\76\Ratification of the Equal Rights Amendment, 44 Op. O.L.C._(slip
opinion) (Jan. 6, 2020) (``2020 OLC Opinion'').
\77\2020 OLC Opinion at 28.
\78\H.J. Res. 638 Hearings at 13 (1977 OLC Opinion).
---------------------------------------------------------------------------
Lacking any arguments from the text of Article V, the
Department's new opinion instead poses a series of questions
that could purportedly be presented if Congress has the power
to extend the deadline. Those questions, however, are strawmen.
For example, the Department wonders whether Congress could also
modify ``a substantive provision within a pending
amendment.''\79\ The answer is clearly no: as the Department
previously made clear, there is an obvious distinction between
changing the procedural terms governing ratification of a
proposed amendment and changing the terms of an amendment
itself. Indeed, as the Department acknowledges, its prior 1977
opinion proposed answers to each of the questions offered in
its new opinion.\80\
---------------------------------------------------------------------------
\79\2020 OLC Opinion at 28.
\80\2020 OLC Opinion at 28-29.
---------------------------------------------------------------------------
Finally, the Committee is unpersuaded by the Department's
sweeping new suggestion that Congress can play no role in the
ratification process--including determining whether a
sufficient number of States has ratified an amendment--once it
has proposed an amendment to the States.\81\ The controlling
opinion of the Supreme Court in Coleman plainly contemplates
such a role.\82\ Furthermore, as the Court noted in Coleman,
Congress has previously acted as the arbiter for determining
whether ratification of a constitutional amendment was valid,
including with respect to the Fourteenth Amendment.\83\ The
Department's suggestion is also particularly troubling in light
of its apparent view that the Executive Branch has the
authority to refuse to certify the adoption of a constitutional
amendment based on its own views about the amendment's
validity. That view finds no support in Article V, which
assigns no role whatsoever to the Executive Branch.
---------------------------------------------------------------------------
\81\See id. at 29-33.
\82\Coleman, 307 U.S. at 454 (if no deadline has been set for
ratification, the question whether an amendment has been ratified
within a reasonable period of time should ``be regarded as an open one
for the consideration of Congress when, in the presence of certified
ratifications by three-fourths of the States, the time arrives for the
promulgation of the adoption of the amendment'').
\83\Id. at 448-50; see also 1978 Committee Report at 13-14.
---------------------------------------------------------------------------
The Minority's Policy Objections to the ERA Are Unavailing
During the hearing of the Subcommittee on the Constitution
and the markup by the Committee, Subcommittee Ranking Member
Mike Johnson (R-LA) also raised policy objections to the ERA
itself. First among them, he contended that the ERA would lead
courts to strike down any restrictions on abortion, including
restrictions on State funding for abortion.\84\ The Supreme
Court, however, has long rooted its jurisprudence on abortion
in the constitutional right to privacy--which exists
independently of any legal claims regarding gender
equality.\85\ The ERA stands for the far broader and more basic
principle of equality of the sexes. Nevertheless, Chairman
Nadler also expressed full agreement with the proposition that
``the right to full equality includes the right of each woman
and man to make their own decisions about their reproductive
choices.''\86\
---------------------------------------------------------------------------
\84\Tr. at 8-10, The Equal Rights Amendment: Hearing Before the H.
Comm. on the Judiciary, Subcomm. on the Constitution, Civil Rights, and
Civil Liberties, 116th Cong. (2019) (unofficial transcript) (``2019
Hearing Transcript'').
\85\See generally Planned Parenthood of Southeastern Pennsylvania
v. Casey, 505 U.S. 833 (1992); Roe v. Wade, 410 U.S. 113 (1973).
\86\Tr. at 25-26, Markup of H.J. Res. 79, Removing the Deadline for
the Ratification of the Equal Rights Amendment, 116th Cong. (Nov. 13,
2019) (unofficial transcript).
---------------------------------------------------------------------------
Subcommittee Ranking Member Johnson also expressed a
concern that the ERA would result in the ``required sex
integration of single-sex organizations'' and the elimination
of institutions such as fraternities and sororities.\87\ The
Supreme Court's jurisprudence regarding gender equality,
however, has never suggested that single-sex institutions are
categorically impermissible. In United States v. Virginia, the
Court concluded that Virginia's all-male military academy had
to admit women only after concluding that Virginia did not
offer any qualitatively similar opportunities for women and
that the State had indeed systematically excluded women from
its educational institutions.\88\ The Court also acknowledged
that ``[s]ingle-sex education affords pedagogical benefits to
at least some students'' and that ``diversity among public
educational institutions can serve the public good.''\89\
Critically, the Court further made clear that ``[s]ex
classifications may be used to compensate women for particular
economic disabilities they have suffered, to promote equal
employment opportunity, [and] to advance full development of
the talent and capacities of our Nation's people.''\90\ The
Court likely would interpret the ERA with similar
considerations in mind.
---------------------------------------------------------------------------
\87\2019 Hearing Transcript at 11-12.
\88\Virginia, 518 U.S. at 536-40, 547-49.
\89\Id. at 535.
\90\Id. at 533-34 (internal citations, quotations, and brackets
omitted).
---------------------------------------------------------------------------
Hearing
For the purposes of section 103(i) of H. Res. 6 for the
116th Congress, the Committee held the following hearing to
consider H.J. Res. 79: ``Hearing on the Equal Rights
Amendment,'' Committee on the Judiciary, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties, April 30,
2019. The Committee heard testimony from: the Honorable Carolyn
B. Maloney, Representative from the 12th Congressional
District; the Honorable Jackie Speier, Representative from
California's 14th Congressional District; Kathleen M. Sullivan,
a partner at the law firm Quinn Emanuel Urquhart & Sullivan,
LLP; Senator Pat Spearman, Co-Majority Whip and Nevada State
Senator; Elizabeth Price Foley, Professor of Law at Florida
International University College of Law; and Patricia Arquette,
an actor and advocate.
Committee Consideration
On November 13, 2019, the Committee met in open session and
ordered the resolution, H.J. Res. 79, favorably reported as an
amendment in the nature of a substitute, by a rollcall vote of
21 to 11, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration of H.J. Res. 79:
1. Motion to report H.J. Res. 79, as amended, favorably,
was agreed to by a rollcall vote of 21 to 11.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.J. Res. 79, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, December 19, 2019.
Hon. Jerrold Nadler,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.J. Res. 79, a joint
resolution removing the deadline for the ratification of the
equal rights amendment.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jon Sperl.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
In 1972, the 92nd Congress passed H.J. Res. 208, which
proposed an amendment to the Constitution providing that
equality of rights under the law shall not be denied or
abridged by the federal government or by states on the basis of
sex (known as the equal rights amendment). That resolution
contained a seven-year deadline--later extended to 1982--by
which three-quarters of the states could vote to ratify the
amendment.
H.J. Res. 79 would permanently reopen the ratification
process for the amendment by eliminating the deadline. By
itself, CBO estimates that the resolution would have no effect
on the federal budget. If the states approve the proposed
amendment, it could potentially affect the federal budget;
however, CBO has not analyzed those effects.
The CBO staff contact for this estimate is Jon Sperl. The
estimate was reviewed by H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
Duplication of Federal Programs
No provision of H.J. Res. 79 establishes or reauthorizes a
program of the federal government known to be duplicative of
another federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalogue of
Federal Domestic Assistance.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.J.
Res. 79 would remove the deadline for ratification of the Equal
Rights Amendment to the Constitution, as revised by 95th
Congress in H.J. Res. 638.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.J. Res. 79 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.
Section-by-Section Analysis
H.J. Res. 79 contains only one section. The resolution
provides that the Senate and House of Representatives resolve
that notwithstanding any time limit for ratification contained
in the preamble to the House joint resolution containing the
Equal Rights Amendment that Congress passed in 1972, the ERA
``shall be valid to all intents and purposes as part of the
United States Constitution'' when the requisite three-fourths
of State legislatures have ratified the Amendment.
DISSENTING VIEWS
The so-called ``Equal Rights Amendment'' (``ERA'') failed
to be ratified by three-quarters of the States under the
deadline set by Congress, and explicitly relied upon by the
States during the state ratification debates. That deadline
expired in 1979, and Congress lacks any power to retroactively
revive a failed constitutional amendment.
In 1982 the U.S. Supreme Court recognized the demise of the
ERA when it declared moot a district court ruling that the
purported 1978 deadline extension was unconstitutional. In
1983, the Democratic leadership of the U.S. House of
Representatives, acting on the same understanding that the 1972
ERA was dead, started the entire process of ERA approval all
over again. But that new ERA failed to achieve the required
two-thirds margin on the floor of the House on November 15,
1983. Even current Supreme Court Justice Ruth Bader Ginsburg, a
supporter of the ERA since the beginning, said just a few
months ago that ``I hope someday . . . we'll be starting over
again [on the ERA] collecting the necessary states to ratify
it.''\1\
---------------------------------------------------------------------------
\1\Available at https://abovethelaw.com/2019/09/ruth-bader-
ginsburg-on-the-one-thing-thats-missing-from-the-constitution/.
---------------------------------------------------------------------------
But now, in defiance of historical reality and the clear
acceptance of the situation by all the relevant participants in
the original debate, the Democrats are bringing forward a
resolution that denies the obvious. Now that Democrats control
the Virginia state legislature, the proponents of this joint
resolution want to convince their base that if passed by both
houses of Congress--by simple majority votes--and the state of
Virginia alone passes a resolution to allegedly ``ratify'' the
1972 ERA, it would become part of the Constitution. But
Congress doesn't have the constitutional authority to
retroactively revive a failed constitutional amendment.
The U.S. Supreme Court and the past Democratic leadership
of the U.S. House of Representatives recognized that the 1972
ERA was irrevocably dead. But the current leadership on this
committee wants to keep this falsehood alive for purely
political purposes.
Supporters of the language of the 1972 ERA have only one
constitutional option, and that is to start the whole process
over again and make their case to current voters nationwide.
They would have to obtain the required two-thirds vote in each
house of Congress, and then win ratification individually from
38 states. They are likely to face considerable difficulty if
they insist on the language of the 1972 ERA resolution,
however, because it's now well understood that the language of
the 1972 ERA would be used to prevent state voters from
enacting any limits on abortion, up to the moment of birth.
Just in the last few years, an increasing number of leading
pro-abortion advocates have openly argued that the language of
the 1972 ERA would require unlimited abortions, with no
restrictions whatsoever, nationwide, regardless of the view of
voters. To take just a single example, in a national alert sent
out on March 13, 2019, NARAL Pro-Choice America stated flatly
``the ERA would reinforce the constitutional right to abortion
. . . [it] would require judges to strike down anti-abortion
laws . . .''.\2\
---------------------------------------------------------------------------
\2\Available at https://www.prochoiceamerica.org/campaign/era_yes/.
---------------------------------------------------------------------------
The bipartisan Hyde Amendment prohibits the use of federal
funds for abortions except in cases of rape, incest, or when
the life of the mother is endangered. The Supreme Court upheld
the Hyde Amendment's abortion funding restrictions as
constitutional in Harris v. McRae. But the People's right to
protect the unborn would be eliminated under the ERA.
Back in the early 1980s, Representative Sensenbrenner
requested that Congress' independent research arm, the
Congressional Research Service, provide the committee with its
own evaluation of the question. As he said at the 1983 markup
of the ERA: ``The executive summary of the CRS report says that
under strict scrutiny the pregnancy classification [in the Hyde
Amendment] would probably be regarded to be a sex
classification under the ERA,'' meaning that under the ERA,
restrictions on abortion would be struck down.
Today, with the benefit of more recent history, we can see
that the concerns of Representative Sensenbrenner in 1983 were
justified. Five years later, in 1988, the Colorado Supreme
Court held that Colorado's ERA, in its state constitution,
prohibits discrimination on the basis of pregnancy. Ten years
later, in 1998, the Supreme Court of New Mexico took the next
step and relied on New Mexico's state-level ERA to strike down
a state regulation restricting state funding of abortions for
Medicaid-eligible women. In New Mexico Right to Choose/NARAL v.
Johnson, the unanimous court found as follows:
Neither the Hyde Amendment nor the federal
authorities upholding the constitutionality of that
amendment bar this Court from affording greater
protection of the rights of Medicaid-eligible women
under our state constitution in this instance . . .
Article II, Section 18 of the New Mexico Constitution
guarantees that ``[e]quality of rights under law shall
not be denied on account of the sex of any person'' . .
. We construe the intent of this amendment as providing
something beyond that already afforded by the general
language of the Equal Protection Clause . . .
Of course women should be protected from discrimination
based solely on their sex, as is the law today. The Supreme
Court has significantly ratcheted up the standard the
government must meet in order to discriminate based on sex
since the 1980s.
For example, in U.S. v. Virginia, the Court stated that
``[p]arties who seek to defend gender-based government action
must demonstrate an `exceedingly persuasive justification' for
that action.'' The Court also stated, ``The burden of
justification is demanding and it rests entirely on the
State.'' As Justice Rehnquist noted in his concurrence in that
case, the Court had in effect made the government's burden much
more difficult than it had been previously. Justice Scalia, in
dissent, pointed out that the standard governing review of the
government's actions that discriminate based on sex that had
previously been in place was ``a standard that lies between the
extremes of rational basis review and strict scrutiny. We have
denominated this standard `intermediate scrutiny' and under it
have inquired whether the statutory classification is
substantially related to an important governmental objective.''
Yet in U.S. v. Virginia, Justice Scalia pointed out that the
majority in that case had ``execute[d] a de facto abandonment
of the intermediate scrutiny that has been our standard for
sex-based classifications for . . . decades,'' and replaced it
with an even higher standard, which is the law today.
The majority opinion in U.S. v. Virginia, it should be
noted, was written by Justice Ruth Bader Ginsburg. In the
1970s, Justice Ginsburg was intimately involved in the
preparation of a 1977 report published by the United States
Commission on Civil Rights that specifically supported the
federal ERA, along with the ramifications of its adoption,
which would go far beyond what is required under the Equal
Protection Clause. Those ramifications include the elimination
of the terms ``fraternity and sorority chapters'' and the
required sex-integration of the Boy Scouts and the Girl Scouts,
among many other things most Americans today would object
to.\3\
---------------------------------------------------------------------------
\3\Available at https://www2.law.umaryland.edu/marshall/usccr/
documents/cr12se9.pdf.
---------------------------------------------------------------------------
Even worse, at the Constitution Subcommittee hearing on the
ERA earlier this year, Ranking Member Mike Johnson asked all
the witnesses invited by the Democrats the following question.
``Let me ask Ms. [Kathleen Sullivan], Dr. [Pat] Spearman, and
Ms. [Patricia] Arquette . . . Some people are arguing in the
Supreme Court this term as we all know that the word `sex' in
the federal civil rights laws includes self-professed `gender
identity.' Is it your understanding that the term `sex' in the
ERA includes self-professed `gender identity'?''
Ms. Sullivan, the top legal expert invited by the
Democrats, responded that ``I think the proper textual reading
of the term `on account of sex' does include discrimination on
the basis of sexual orientation or transgender identity.''
Ranking Member Johnson then asked Dr. Spearman if she agreed
with that, and she replied ``Yes, I do.'' And then Ms. Arquette
said it would be argued in court, but that she'd like it to
include gender identity.\4\
---------------------------------------------------------------------------
\4\Available at https://judiciary.house.gov/calendar/
eventsingle.aspx?EventID=1814.
---------------------------------------------------------------------------
As a result, we know the intent of the ERA's most prominent
supporters is to enshrine the infinitely fluid concept of
``gender identity'' not only into federal statutory law--recall
our debate on H.R. 5--but also into the Constitution itself,
with H.J. Res. 79. As was amply discussed during the debate on
H.R. 5, the result would be to require doctors to perform
treatments and surgeries on minors that render them permanently
infertile without parental involvement, the requiring of
biological men to invade the private spaces of women, and the
domination of biological males in female sports. And in so
doing, the Equal Rights Amendment would--ironically and
tragically--completely erase women's protections under the law.
On January 6, 2020, the Justice Department's Office of
Legal Counsel issued an opinion, binding within the entire
executive branch, taking note of H.J. Res. 79 and stating the
current Congress ``may not revise the terms under which two-
thirds of both Houses proposed the [1972] ERA Resolution and
which thirty-five state legislatures initially ratified
it.''\5\ The National Archives, which certifies the
ratification of amendments to the U.S. Constitution,
subsequently issued a press release stating ``In its January 6,
2020, opinion, the Office of Legal Counsel (OLC) has concluded
`that Congress had the constitutional authority to impose a
deadline on the ratification of the ERA and, because that
deadline has expired, the ERA Resolution is no longer pending
before the States.' (OLC Opinion, at p. 2.) Accordingly, the
OLC opinion goes on to state that `the ERA's adoption could not
be certified under 1 U.S.C. Sec. 106b.' (OLC Opinion, at p.
37.) . . . NARA [the National Archives and Records
Administration] defers to DOJ on this issue and will abide by
the OLC opinion, unless otherwise directed by a final court
order.''\6\
---------------------------------------------------------------------------
\5\Available at https://www.justice.gov/olc/file/1232501/download.
\6\Available at https://www.archives.gov/press/press-releases-4.
---------------------------------------------------------------------------
H.J. Res. 79 is anti-life and patently unconstitutional.
Signed,
Doug Collins,
Ranking Member.
[all]
