During the American Bar Association’s annual meeting held this past August, the Association’s House of Delegates adopted Resolution 601, affirming the Equal Rights Amendment’s (ERA) ratification as the 28th amendment of the United States Constitution. The resolution, which was passed overwhelmingly, calls for the full recognition and implementation of the ERA by the legal community and all levels of government.
With over 400,000 members, the American Bar Association describes itself as the “largest voluntary association of lawyers in the world” and “the national voice of the legal profession”. What they have to say about the ERA matters to the legal community in the United States, and they are using this influence to express their overwhelming support of the ERA through this resolution.
The resolution passed with four main points:
- The ABA supports the principle that any time limit for ratification of an amendment to the US Constitution is not consistent with Article V of the Constitution.
- The ABA supports the principle that Article V does not permit a state to rescind its ratification of an amendment.
- The ABA urges all levels of government to support implementation of the ERA to the Constitution.
- The ABA urges all bar associations and the legal community to support implementation of the ERA.
Senator Kristin Gillibrand, a long time advocate and supporter of the ERA, posted to her Instagram @kristengillibrand a statement in support of the decision which read: “This is BIG news — the leading association for legal minds just endorsed our position that the Equal Rights Amendment has satisfied every constitutional requirement and called on the entire legal community to support certifying and publishing the ERA as our 28th Amendment” As CEO of the ERA Coalition, Zakiyah Thomas also expressed her support for the ABA’s decision: “I applaud the ABA for taking this step and being proactive in ensuring that everyone in this country is protected under the law from discrimination.”
The overwhelming support for the ABA’s decision by women’s rights advocates underscores its significance in the fight for the ERA. The ABA’s resolution, with its accompanying 15-page report, not only demonstrates the legal community’s support for the ERA, but it also equips advocates with robust legal arguments that will strengthen their cause.
What does this mean and why does it matter?
The ABA’s report argues for the importance of the ERA in the face of an increasingly conservative Supreme Court that subscribes to a theory of originalism. The document describes the current protections against sex discrimination as a “patchwork” of federal and state laws that are subject to the political whims of the Supreme Court and Congress. They cite the overturning of Roe v. Wade in Dobbs as evidence that the Supreme Court could roll back even more hard fought victories for women’s rights. Above all, the Dobbs decision emphasizes how the lack of robust constitutional protections for women can – and does – put them at risk. SCOTUS overturned Roe V Wade because it could, and because the Constitution didn’t protect women well enough.
Nevertheless, this report represents the ABA formally joining a host of organizations working in support of the ERA. becoming fully recognized as the 28th amendment. The resolution describes various steps for implementation of the resolution chief among them:
- Writing letters to Congress
- Writing letters of the Executive Branch
- Filing briefs with the United States Supreme Court and Courts of Appeal
- Advocating with the United Nations
- Educating the public
This means that the ABA is now calling its members to join the fight for the ERA.
ABA, ERA, and the 2024 Elections
The ABA has long been a supporter of the ERA with previous resolutions being adopted in 1972, 1974, and 2016, but the timing of this latest resolution is not coincidental. Karol Corbin Walker, chair of the ABA’s Commission on Women in the Profession, who submitted the resolution, concluded by highlighting the critical importance of safeguarding the Equal Rights Amendment: “Particularly in this momentous Presidential election year, with women’s rights on the ballot, the ABA must be prepared to speak on the procedural issues that continue to be raised as to recognition of the ERA as the 28th amendment to the US Constitution”
Ultimately, the ABA’s resolution reflects a much bigger concern for the ERA ahead of the 2024 Presidential Elections. Elections have consequences,” Thomas adds. “It’s not partisan of me to say that currently we have two presidential candidates and two vice presidential candidates, one of each that have supported the equal rights amendment. They have voted for legislation or co-sponsored legislation and the others voted against it, or were the reason it was blocked in the first place”
Understanding the ERA
The United States Constitution establishes citizens’ rights to freedom of speech, press, assembly, and the right to bear arms, among many other rights and liberties. But something the US Constitution does not formally protect against is discrimination on the basis of gender or sex. In fact, the United States is “a global outlier”, says Kathleen Sullivan, as the only “major written constitution… that lacks a provision declaring the equality of the sexes”.
In 1923, the Equal Rights Amendment was first introduced to Congress by Alice Paul to correct this issue with one simple sentence:
“Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
Yet, the Equal Rights Amendment never made it into the Constitution then, and it has been facing obstacles ever since, for over the past one hundred years. But, with the 2024 elections only three weeks away, there is a critical juncture for women’s rights in the United States. The outcome of this election could pave the way for the full recognition of the ERA as the 28th amendment, or women’s legal rights may face further scrutiny. Now is the time, perhaps more than ever before, to ensure that the ERA will be fully recognized as the 28th Amendment with no more barriers standing in its way.
Why hasn’t the ERA become the 28th amendment?
The ERA first had to overcome the stringent requirements for ratifying a constitutional amendment outlined in Article V of the Constitution. Initially, the ERA needed approval from two-thirds of both chambers of Congress. Following this, it moved to the ratification process, which requires the approval of three-fourths (38) of the states. Against the odds, the ERA met the first requirement in 1971 when it was passed by the House, followed by passage in the Senate just one year later. Unfortunately, the ERA then became stalled during the ratification process because it was subject to a seven year deadline established by Congress in amendment’s preamble. By 1977, with just two years remaining on the deadline, only 35 states had ratified. Congress then decided to extend the deadline by three years (until 1982), but no additional state ratifications were made, thereby eliminating the ERA’s chances of being fully recognized as the 28th amendment.
The ERA lay at a stalemate until 2017, when Nevada ratified the amendment during a resurgence of women’s rights activism. Nevada was followed by Illinois in 2018 and then Virginia, which became the coveted 38th ratification of the amendment. Suddenly, nearly 50 years after the ERA was first passed by Congress, the ERA met all the constitutional requirements to be fully recognized as the 28th Amendment of the United States Constitution. But that didn’t happen and it still hasn’t happened.
Why?
The ERA was first blocked by the Trump Administration’s Department of Justice’s Office of Legal Council when they issued a memo dismissing the recent ratifications as invalid because they did not meet the 1982 Congressional deadline. Since then, women’s rights groups have rallied around the Equal Rights Amendment, advocating for its recognition as the 28th amendment. One group is the ERA Coalition, which units over 300 of these organizations in support of the cause. Coalition CEO, Zakiyah Thomas emphasizes the amendment’s significance stating, “The Equal Rights Amendment will actually do something; it is a promise of a better future where everyone in this country is treated equally under the law.”
Despite these efforts, the ERA is still being blocked by opponents who argue against its passage on two major grounds:
- Congress’ seven-year ratification deadline (along with its three year extension) made the latest ratifications of the ERA invalid.
- Six states (Nebraska, Tennessee, Idaho, Kentucky, and South Dakota) validly rescinded their ratifications.
But hope is not lost. The American Bar Association’s ratification of Resolution 601 is proof of that. It has equipped advocates with powerful legal tools to bolster their defense and support of the ERA, regardless of the election’s outcome. More importantly, the ABA’s resolution is a clear acknowledgment that women in the United States deserve full constitutional protections—not just during election years, but every year after. The ERA is not a temporary issue; it’s a lasting necessity for ensuring equal rights for all.
About the author: Danielis Morales is a fellow in the Sy Syms Journalistic Excellence Program* at Women’s eNews, funded by the Sy Syms Foundation. The Sy Syms Journalistic Excellence Program at Women’s eNews fellowship supports editorial and development opportunities for editorial interns in the pursuit of journalistic excellence.
The Sy Syms Journalistic Excellence Program:
The Sy Syms Journalistic Excellence program at Women’s eNews was launched in 2014 with support from the Sy Syms Foundation. The fellowship provides support and development opportunities for editorial interns in the pursuit of journalistic excellence.
“For a democracy to flourish all voices must be heard.” says Marcy Syms, a founding Trustee and President of the Sy Syms Foundation. “Through its investigative reporting Women’s eNews gets at the essence of good journalism. The Sy Syms Foundation is proud of this collaboration to support today’s newest women journalists.”
As part of its mission to create social change for women and girls through investigative reporting, Women’s eNews helps foster, train, and support the career development of new journalists with a focus on social justice and women’s rights.
