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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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \5\Id.
    \6\Id.
    \7\2018 CRS Report at 11.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \11\Id. at 12.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \53\See 2018 CRS Report at 15.
    \54\Jefferson's Manual Sec. 192, at 83-84.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------
    \57\1978 Committee Report at 16.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------
    \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]