Frequently Asked Questions

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.

The ERA was first introduced into Congress in 1923. Congress finally passed it and submitted it to the states for ratification on March 22, 1972. An original deadline of seven years was extended by Congress to June 30, 1982.When this deadline expired, only 35 states (of the necessary three-fourths, or 38) had ratified. It has been reintroduced into every session of Congress since that time.

The 15 states that have not ratified the ERA are Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South Carolina, Utah, and Virginia.

The Equal Rights Amendment affirms that both women and men hold equally all of the rights guaranteed by the U. S. Constitution. It would provide a remedy for sex discrimination for both women and men, and give equal legal status to women for the first time in our country’s history.

The most important effect of the ERA would be to clarify the status of sex discrimination for the courts, whose decisions still show confusion about how to deal with such claims. For the first time, sex would be a suspect classification like race. It would require the same high level of strict scrutiny and have to meet the same high level of justification – a necessary relation to a compelling state interest – as the classification of race.

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The 14th Amendment was ratified after the Civil War, in 1868, in order to deal with race discrimination. (Ironically, it added the word "male" to the Constitution for the first time in referring to the electorate.) It was first applied to prohibit sex discrimination in 1971, in the Supreme Court decision Reed v. Reed, but it still allowed legal differentiation by sex to stand in many cases. Several subsequent Supreme Court decisions (Craig v. Boren in 1976, United States v. Commonwealth of Virginia in 1996) have raised the standard of protection against sex discrimination under the 14th Amendment, but sex discrimination claims still do not get the highest level of judicial scrutiny (strict scrutiny) that race discrimination claims get. If ERA opponents believe that women already have the full protection of the Constitution through the 14th Amendment, they should have no objection to clarifying that guarantee through the specific wording of the ERA.

Cases in states with state ERAs show that the ERA would not invalidate state laws on abortion which are otherwise constitutional. The constitutional principles by which reproductive laws are upheld or struck down are primarily the right of privacy and equal protection. At present, 21 states have state ERAs or equal rights guarantees in their constitutions, yet many of these states, such as Pennsylvania, still enforce significant restrictions on abortion. Missouri has an equal protection clause similar to the ERA in its state constitution, but this clause has never been used to argue against the state’s abortion restrictions and has not invalidated them. States like Connecticut and New Mexico that have applied a state ERA to an abortion funding decision have required public funding only of medically necessary abortions for indigent women, not of all abortions. The status of abortion rights in such states has more to do with the progressive nature of their state courts and state politics than with the presence of a state ERA. In fact, most state cases are argued under a combination of privacy, equal protection, and equal rights claims, and the presence of a state ERA is not necessarily the determining factor in those court decisions.

ERA opponents’ claim that the amendment would require states to allow same-sex marriage is false. The state of Washington rejected such a claim under its state ERA in the 1970s. The state of Hawaii, which considered such a claim under its state ERA, recently amended its constitution to declare marriage a contract between a man and a woman. The legislative history of the ERA shows that its intent is to equalize rights between women and men, not to address issues of discrimination based on sexual orientation.

The ERA would not make all single-sex institutions unconstitutional – only those whose aim is to perpetuate the historic dominance of one sex over the other. Single-sex institutions that work to overcome past discrimination are constitutional now and are likely to remain so.

The second section of the ERA, "The Congress shall have the power, by appropriate legislation, to enforce the provisions of this article," has been called a "federal power grab" by opponents. In fact, that clause with some variation of wording appears in eight other amendments, beginning with the 13th Amendment. The ERA would not transfer jurisdiction of domestic laws or other laws to the federal government. It would simply be one more element in the Constitution by which the constitutionality of state laws is judged. The ERA would not in itself void any laws. It would give legislatures two years to adjust laws which treat people differently on the basis of sex, either by including the other sex or by using a legal category other than sex (e.g., "chief caregiver" instead of "mother") to achieve the objective of the law.

A three-state strategy for ERA ratification was developed after 1992, when the so-called Madison Amendment to the Constitution was ratified 203 years after its passage by Congress. Acceptance of this ratification period as “sufficiently contemporaneous” led ERA supporters to argue that Congress has the power to maintain the legal viability of the ERA’s existing 35 state ratifications. The ERA’s time limit is open to change, as Congress demonstrated in extending its original deadline. Precedent holds that rescission votes are not valid. Therefore, Congress could accept state ratifications that occur after 1982 and keep the existing 35 ratifications alive.

The legal analysis for this strategy is outlined in “The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States” (William & Mary Journal of Women and the Law, Spring 1997). The Congressional Research Service has concluded that acceptance of the Madison Amendment does in fact have implications for the three-state strategy premise. Since 1995, ratification bills have been introduced in eight of the unratified states: Arizona, Arkansas, Florida, Illinois, Mississippi, Missouri, Oklahoma, and Virginia.