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Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) delivered the following opening statement during the markup of H.J.Res. 79, a joint resolution that would remove the deadline for ratification of the Equal Rights Amendment (ERA) and ensure that the ERA can become a part of our Constitution once a sufficient number of states ratify it:
"H.J. Res. 79, introduced by Representative Jackie Speier with 217 co-sponsors, would ensure that the Equal Rights Amendment, or "ERA," can become part of our Constitution if and when a sufficient number of states ratify it. Specifically, this short and straightforward measure provides that notwithstanding the ratification deadline that Congress set for the ERA in 1972, and extended in 1978, the ERA "shall be valid to all intents and purposes as part of the Constitution whenever ratified by the legislatures of three-fourths of the several States."
"I would hope that there is little dispute about the need for enshrining in the Constitution a clear and firm statement guaranteeing equal rights under the law regardless of sex.
"In 1971 and 1972, the House and Senate, respectively, passed the ERA by well more than the constitutionally-mandated two-thirds majority in each chamber—the House by a 354 to 24 margin, and the Senate by a 84 to 8 margin. It contained these simple words: "Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex." In the years that quickly followed, dozens of states ratified the ERA through their legislatures.
"By the end of the 1970s, the ERA was just a few states short of full ratification, but then progress on ratification slowed, and the deadline Congress had set for ratification passed. There is a renewed momentum behind the ERA, however, and this legislation would ensure that no arbitrary deadline will stand in the way of equality once a sufficient number of states ratify the ERA.
"Almost one hundred years ago, Alice Paul, who helped lead the campaign to secure women’s right to vote, proposed the first version of the Equal Rights Amendment. Her heroic efforts on behalf of women’s suffrage culminated in adoption of the 19th Amendment, yet she and the other courageous women who led that movement soon recognized that ratification of women’s suffrage was only the start. They knew that if women were to achieve true equality, our nation’s founding document needed to be amended to reflect that core principle.
"We have, of course, made important strides. In large part, thanks to a brilliant legal strategy pioneered by now-Justice Ruth Bader Ginsburg, the courts have recognized that the 14th Amendment prohibits many forms of outright discrimination. Critically, the ERA would strengthen and further secure these existing constitutional and other legal guarantees of women’s equality.
"Unfortunately, despite existing protections, in troubling ways, women’s rights have begun to slide backwards in recent years. For instance, the Trump Administration continues an onslaught of threats to women’s rights on a regular basis—whether it be by trying to roll back laws that prohibit health insurers from charging more to women, just for being female, or by allowing women’s healthcare choices—including choices about their reproductive healthcare—to be dictated by their employers’ religious beliefs. Also, women still have uneven protections against other forms of discrimination and against harassment in the workplace.
"In a similar way, the Administration has aggressively sought to undermine measures to protect against discrimination on the basis of sexual orientation and gender identity. And make no mistake, the ERA’s prohibition of the denial or abridgement of "equality of rights under the law . . . on account of sex" includes discrimination based on sexual orientation and gender identity.
"With ongoing efforts by the federal and state governments to undermine equality under the law based on sex, it is clear that an Equal Rights Amendment is more important than ever.
"Thankfully, the momentum behind ratification has picked back up. As we learned back in April in a hearing on the ERA before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties, Nevada led the revived effort to ratify the ERA, becoming in 2017 the 36th state to ratify, with Illinois following suit last year. With Virginia on the cusp of potentially becoming the 38th state to ratify the ERA next year, we may at long last make the ERA the 28th Amendment to our Constitution.
"Meanwhile, women have been elected to office in unprecedented numbers—including in this Congress. Now, for the first time ever, more than a hundred women are serving in the United States House of Representatives. One hundred and five, in fact.
"Some of the women who are part of this inspiring wave are on this Committee and they are helping to lend their voices to the critical effort to ratify the ERA.
"Some may argue that we do not need an ERA, or that Congress cannot change the deadline for ratification retroactively. But both arguments are clearly wrong.
"As a straightforward moral matter, our Constitution should explicitly guarantee equality of rights under the law regardless of sex. Moreover, while the Constitution has been interpreted to provide a considerable level of protection against sex discrimination already, those interpretations can always change for the worse. The ERA would secure and potentially enhance these existing protections.
"As to Congress’s authority to change or eliminate the ratification deadline, Article V of the Constitution, which governs the constitutional amendment process, does not provide for a ratification deadline of any kind. Article V also contemplates that Congress alone is responsible for managing the constitutional amendment process, given that it assigns only to Congress an explicit role in the amendment process and does not mention any role for the Executive or Judicial Branches.
"The Supreme Court made clear in Coleman v. Miller that Article V contains no implied limitation period for ratifications and that Congress may choose to determine "what constitutes a reasonable time and determine accordingly the validity of ratifications" because such questions are "essentially political." The Court concluded that 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."
"Similarly, when this Committee considered an extension of the ratification deadline in 1978, it concluded that "rescissions [of ratifications] are to be disregarded" based on the generally-agreed view of constitutional experts 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, as part of its decision whether an amendment has been validly ratified."
"We are on the verge of a breakthrough for equality in this country, despite all the obstacles in our current political and social climate. Alice Paul’s Equal Rights Amendment was introduced in both Houses of Congress in 1923. But 96 years later, the United States Constitution still does not explicitly declare that women have equal rights under the law. Adopting the ERA would bring our country closer to truly fulfilling our values of inclusion and equal opportunity for all people. Adopting this legislation would help make this a reality."
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