ERA deadline debated in Senate hearing
By Tom Strode
WASHINGTON (BP)—Senators and lawyers disagreed Tuesday (Feb. 28) in a congressional hearing regarding the latest attempt to revive the Equal Rights Amendment more than four decades after the controversial proposal reached its deadline for ratification.
The Senate Judiciary Committee heard testimony on a resolution that would retroactively eliminate the 1982 deadline for ratifying the Equal Rights Amendment (ERA) and make the proposal a valid constitutional amendment approved by three-fourths of the states. Democratic committee members and their witnesses contended Congress has the power to take such a step, while Republicans and their witnesses asserted it does not.
In 1972, the Senate and House of Representatives passed with the required two-third majorities the ERA, which would ban discrimination on the basis of sex. Congress established a seven-year deadline for ratification by the states. When it appeared three-fourths of the states would not approve the amendment, Congress voted in 1978 in an intensely contested move to extend the deadline by three more years. ERA proponents, however, achieved passage in only 35 of the 38 states needed before time expired in 1982. Three more states have ratified the amendment in recent years, but six states have voted to rescind their ratifications.
In addition to the debate over whether Congress has the authority to remove the 41-year-old deadline, the renewal effort has rekindled long-standing warnings about the ERA’s effect. The Southern Baptist Ethics & Religious Liberty Commission (ERLC) and other opponents of the amendment contend the ERA would vastly expand abortion rights, threaten religious freedom and actually restrict some rights of females.
Hannah Daniel, the ERLC’s policy manager, told Baptist Press Tuesday, “In the name of equality, the ERA erases spaces where women have thrived and achieved remarkable things over the last 50 years, while also presenting serious new challenges to our advocacy for conscience protections and for the preborn.”
In explaining the ERLC’s position, Daniel cited a resolution approved by messengers to the 1978 SBC meeting that opposed extending the ratification deadline and said the right of states to rescind their ratifications should be included in any extension bill.
“The convention believed then that the initial ratification extension was ‘an illegal attempt to tamper with our sacred United States Constitution,’” Daniel said of the SBC resolution. “Now, here we are again – 45 years later – and the ERA continues to be a grave threat to our Constitution, to women, to the preborn and to the consciences of millions of Americans. Congress must see through these false promises of equality and progress and firmly oppose the ERA.”
In a Tuesday post on the ERLC’s website, Daniel said the ERA could eliminate not only all restrictions on abortion and its federal funding but also conscience protections for pro-life, health-care workers and, in effect, spaces segregated by sex for privacy and safety.
The House approved bills to remove the ERA deadline in both 2020 and 2021 under Democratic leadership, but Republicans took back control of the chamber in the November elections. The Senate, where Democrats hold a slim advantage, has failed to approve such a resolution and appears highly unlikely to do so since 60 votes would be needed to overcome an expected filibuster.
Sen. Lindsey Graham, R-S.C., the committee’s lead Republican, predicted failure for the effort.
The ERA’s supporters “are not starting over” because “if you started this process today, you wouldn’t come anywhere near two-thirds of the House and Senate to ratify this amendment,” Graham said. “Times have changed. Women’s rights have been acknowledged.”
The ERA would be “soundly rejected” because it “would lead to chaos,” he said.
Comments by Judiciary Committee leaders during Tuesday’s hearing demonstrated the significance of abortion in the ERA debate.
Sen. Dick Durbin, D-Ill., committee chairman, said, “There is no room for uncertainty when it comes to protecting equal rights under the law. Sadly, that lesson was driven home last year by the Supreme Court’s decision to overturn” Roe v. Wade.
The 1973 Roe opinion legalized abortion nationwide, but the high court reversed that ruling in its Dobbs v. Jackson Women’s Health Organization decision in June. The Dobbs opinion returned abortion policy to the states.
“At the heart of this is the Dobbs decision and other decisions which relate to the right and role of women today,” Durbin said.
Graham said, “This amendment would give the court the ability to strike down every pro-life measure passed by the states.” In asking witnesses about the ERA’s effect on abortion rights, Graham quoted an assertion by NARAL Pro-choice America that the amendment “would require judges to strike down anti-abortion laws.”
Jennifer Braceras, director of the Independent Women’s Law Center and a Republican witness, agreed with NARAL’s assessment. Kathleen Sullivan, lawyer with a Los Angeles-based firm and a Democratic witness, disagreed, contending courts would balance women’s equality against other rights on a case-by-case basis.
Sen. Cindy Hyde-Smith, R-Miss., said in her testimony the ERA’s supporters are seeking “unrestricted abortion on demand up to the moment of birth across the nation” and to force taxpayers to pay for it.
Braceras told the committee, “The ERA is a Trojan horse. It promises equality, but hidden inside the empty rhetoric is a laundry list of policies that will harm women and girls.
“[M]ales and females are not the same,” she said. “We never will be. And our laws and public policies shouldn’t treat us as interchangeable.
“The ERA would be devastating not only to women and girls but also to religious liberty, threatening the tax-exempt status of religious groups that ordain only men and prohibit federal funding of religious organizations that counsel young people about biological sex differences.”
Elizabeth Price Foley, law professor at Florida International University and a GOP witness, said the ERA would mean more “distinctions between men and women would be ruled unconstitutional than” are currently. The difference between males and females regarding registration for Selective Service and the draft is the “most obvious example,” she said.
Republicans pointed to the ERA’s effect on girls’ and women’s sports. Males are currently able to compete on female teams at high school and college levels in some states. As a high school senior in Massachusetts, her daughter played field hockey against three teams that included males, Braceras told the panel.
“This amendment would really punish women who are trying to play sports fairly,” Graham said.
Democratic witnesses and senators said the ERA is needed to eliminate ambiguity about women’s rights.
The amendment would build into the Constitution a “guarantee that women cannot be treated as lesser than men, that girls cannot be treated as lesser than boys,” Sullivan said. The ERA “is proper. It’s constitutional. It’s within this body’s power,” she told the committee.
Thursday Williams, Trinity College (Ct.) senior and board member of the ERA Coalition, said the amendment “will make the Constitution a more perfect document so we can have a more perfect union.”
Foley and Sullivan disagreed regarding Congress’ authority to eliminate the deadline it established.
While Article 5 of the Constitution gives the Senate and House the authority to propose amendments and the mode of ratification, “Congress’ role under the Constitution is done” after it provides approval by a two-thirds majority, Foley said.
“Once that proposal is submitted to the states, your job is done, and you’re locked in,” she told the committee. “And you can’t change it by simple majoritarian resolutions in the future.”
Sullivan said Congress “has the power to remove the deadline that was set in 1972 and extended in 1978.” The ERA deadline was in the resolution’s preamble and not its text, she said. The preamble is advisory, and states ratify the amendment text and not the preamble, Sullivan told the panel.
The preamble, however, is part of the resolution that is submitted to the states for ratification, Foley said. Two federal courts have rejected the argument the ERA deadline’s presence in the preamble makes it ineffective, she said.
On Tuesday, the District of Columbia Court of Appeals upheld one of those decisions issued in 2021, ruling two states that had brought suit for publication of the ERA as a ratified amendment failed to demonstrate clearly the deadline is invalid.
Since 2017, Nevada, Illinois and Virginia have ratified the ERA despite the deadline being long past. Nebraska, Tennessee, Idaho, Kentucky and South Dakota voted to rescind their ratifications between 1973 and 1979. North Dakota revoked its ratification in 2021.
The ERA says: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”