Jurisprudence

The Most Absurd “Solution” to America’s Assault on Women

Even if the Equal Rights Amendment were somehow ratified today, this Supreme Court wouldn’t care.

A group of demonstrators in front of the Department of Labor hold signs supporting the Equal Rights Amendment and abortion rights as President Bush passes by in the inaugural parade, on January 20, 1989, in Washington. The photo is in black and white, and most people are holding a circular sign.
A group of demonstrators in front of the Department of Labor hold signs supporting the Equal Rights Amendment and abortion rights as President Bush passes by in the inaugural parade, on January 20, 1989, in Washington. Photo by Pancho Bernasconi/AFP via Getty Images

In 1972, Congress passed the Equal Rights Amendment by a two-thirds vote and gave the states until 1979 to approve it. They failed to do so. This month, however, proponents of the ERA are fighting to revive the amendment on multiple fronts. On Wednesday, a federal appeals court heard arguments in a case designed to make the United States archivist “publish” and “certify” the amendment. One week earlier, senators pressed Colleen Shogan—President Joe Biden’s nominee to replace the current archivist—on whether she would declare the ERA to be legitimately ratified.

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This flurry of activity 50 years after initial congressional passage is just the latest twist in the unnervingly long road the ERA has taken on its path attempting to become the 28th Amendment to the U.S. Constitution. If it makes it, it would guarantee equal rights for all citizens regardless of sex. The people pushing for it think they have a case because three states approved the ERA long after the initial deadline—Nevada in 2017, Illinois in 2018, and Virginia in 2020—and many Democrats believe it should now be part of the U.S. Constitution. Republicans counter that actually, five states withdrew their approval already, so the math doesn’t work, and add that the deadline is long past, anyway.

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The entire mess has been laid at the feet of the archivist of the United States, a position Shogan will soon take over (pending confirmation), hence the lobbying. Proponents of the amendment are also upset that the Biden Administration is taking the same slightly technical position that Donald Trump’s did: The archivist cannot certify the ERA without confirmation from either a federal court or Congress. The disappointment is, on some level, understandable: Those supporting the ERA’s resuscitation argue that it is the solution to our current political horrors—that the amendment could protect a national right to abortion and contraception, enshrine LGBTQ equality (including same-sex marriage and trans rights), and justify federal legislation protecting women from domestic violence, wage discrimination, and more. Once the archivist certifies the ERA, they argue, the federal judiciary can finally implement a full guarantee of sex equality under law. That’s why they sued the last archivist for refusing to act, and it’s why they’re pressuring the next one already.

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This argument has strong emotional appeal. It is also absurd. There is nothing wrong with the ERA itself; obviously a constitutional right to sex equality would be an improvement. But the campaign to revive the ERA reveals a baffling misunderstanding about the actual contours of the ongoing fight over who has legal rights in this country. It is like bringing a butter knife to a gunfight.

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We understand why those supporting the ERA are annoyed right now. The process of amending the constitution is inherently political, and politicians have previously bent the rules to push amendments through: After the Civil War, for instance, Congress forced southern states to approve the 14th amendment as a condition for rejoining the union—while simultaneously rejecting the legitimacy of these state governments, denying them congressional representation. Moreover, two northern states rescinded their approval, depriving the 14th Amendment of the necessary support from three-fourths of the state. Yet Secretary of State William Seward chose to ignore their actions and certified the amendment anyway. So anyone who claims states could withdraw their support for the ERA has to explain why they could not withdraw support for the 14th Amendment.

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Due to all this, there are obvious reasons to be frustrated by conservative efforts to scorn ERA revival as a brazenly unconstitutional joke—but reasonable people can disagree about whether there’s a lawful path forward for the amendment right now. What we find befuddling is the fact that any progressive in 2022 could still believe that the current federal judiciary would greenlight ratification—or that the ERA’s ratification would matter to the federal judiciary. The Supreme Court is not occupied by reasonable people; it is occupied by a far-right Republican majority that just overturned Roe v. Wade. Even Ruth Bader Ginsburg did not believe that a handful of states could drag the ERA across the finish line decades after the deadline. But we are asked to believe that John Roberts will? How about Clarence Thomas and Sam Alito? It is impossible to imagine these six jurists brushing aside so many procedural regularities in order to ratify the ERA by judicial decree.

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Then there is the substantive question that lies at the end of these procedural hurdles: If the ERA were somehow ratified, and five justices were persuaded to acknowledge it, does anyone seriously think this court would apply it in a way that mattered? After Roe’s reversal, many progressives have finally begun to understand that this Supreme Court starts from a conclusion and works its way backward—that its reasoning is typically window-dressing on a fundamentally political judgment. Now we are told to hope against hope that this exact same court would reverse course because we added a few words to the Constitution? When will progressives understand that the words of the law matter far less than the people who are interpreting them?

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The whole situation feels similar to a particularly annoying lament about the original decision in Roe—that the 1973 decision is flawed and somehow weaker because it did not justify the right to abortion rights on the basis of the equal protection clause (Roe is rooted in the due process clause). This has always been misguided—it is farcical to theorize that SCOTUS might have upheld Roe if only it were justified as a matter of women’s rights from the start. Roe wasn’t overturned because it wasn’t reasoned well—it was overturned because it guarantees a right to abortion, and that’s what the conservative justices wanted to change.

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Adding an explicit ban on sex discrimination to the Constitution will not bring Roe back. And if the ERA were already on the books, it would not have been an obstacle to Roe’s reversal.

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Standing in front of the archivist trying to convince her to adopt this amendment feels a bit like lobbying at the principal’s office for a new policy without acknowledging that the entire school is already on fire. The whole problem with the Supreme Court right now is that they do not care about the rules. The conservative justices are willing to blow up precedent, seize power from the elected branches, and rig elections on the shadow docket  forever, because they have secured an illegitimate majority and they feel comfortable.  Changing the rules is not going to make them uncomfortable. Only the force of actual political power that could threaten their current lock grip could do that.

Women are more activated right now politically than they have been in a long time. Progressives need to give those women something real to rally behind—something substantive that has the potential to change the current situation on the ground, not a Hail Mary stunt that will divert energy and resources. Adding a few words to the Constitution so the court can keep doing whatever it wants? It’s not even close to enough.

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