Equal Rights Amendment implementation likely stalled

By Rebecca Anzel Capitol News Illinois


The original joint resolution of March 22, 1972 proposing an amendment to the Constitution of the United States Relative to Equal Rights for Men and Women. (National Archives)

SPRINGFIELD — Two years after Illinois’ Legislature approved new language for the U.S. Constitution codifying that rights cannot be denied due to gender, the Equal Rights Amendment gained enough state support to be ratified.

Its potential implementation is more complicated, though.

Virginia’s General Assembly on Jan. 15 backed the addition of protections for women in the country’s governing document. After both chambers accept each other’s initiative, the commonwealth will become the 38th to ratify the amendment, pushing it across the necessary legal threshold for passage.

But opponents argue that it does not matter — when the Equal Rights Amendment was introduced and passed by Congress in 1972, the body set a seven-year deadline for state ratification. It was later pushed to 1982. By then, only 35 states formally supported the language, five of which — South Dakota, Idaho, Kentucky, Nebraska and Tennessee — withdrew their backing for the measure in the 1970s.

Proponents point out the Constitution does not provide states the ability to rescind their support, or enforce a deadline for ratification. They also assert Congress’ placement of its cutoff is important.

Former Illinois state Rep. Steven Andersson, a Republican from Geneva and one of the amendment’s sponsors two years ago, said the deadline is in the resolution introducing the amendment for state consideration, not in its actual text.

The Constitution’s 27th Amendment – the last one officially passed – provides a model of why the deadline is “ministerial,” former Illinois state Rep. Lou Lang, a Skokie Democrat, said. He sponsored a bill in the House calling for Illinois’ approval of the Equal Rights Amendment for about 25 years.

The 27th Amendment provides that Congress cannot cut or increase its salary during a term. It passed in 1992 but was first introduced in America’s first Congress more than 200 years ago. Several states ratified it by the late 1790s before it effectively “died,” Andersson said.

In the 1990s, a college student from the University of Texas at Austin revived the effort, and the amendment was added to the country’s governing document — an “outrageous length of time” after its debut, Lang said.

Attorneys general from three states — Alabama, South Dakota and Louisiana — filed a lawsuit in December to prevent the Equal Rights Amendment from being added to the Constitution even with Virginia’s approval.

In response to the suit, the U.S. Department of Justice said in a memo that Congress’ deadline is constitutionally allowed and therefore prevents the amendment’s passage.

There are several legislative efforts to extend that limit, and the extension has the support of a number of Illinois’ congressional delegation.

Congresswoman Jan Schakowsky, a Democrat from Illinois’ 9th District, said she would work to advance the amendment at the Congressional level.

“The Equal Rights Amendment is long overdue, and I will continue to work with my colleagues and advocates to push for its enactment following ratification in Virginia. I am an original co-sponsor of H.J. Resolution 38, which currently has 218 co-sponsors, that clarifies that this amendment should take effect,” Schakowsky said in an email statement.

Andersson and Lang agree the question will go straight to federal courts to settle. Litigation is “ramping up as we speak,” Andersson said.

Former Illinois state Rep. Steve Andersson

“The people who are opposed to this will make up anything to prove their point. They’ve tried to say it’s about gay rights — it isn’t, and the U.S. Supreme Court has already affirmed those rights; they’ll say it’s about abortion — it has nothing to do with abortion,” Lang said. “The real question is a constitutional one.”

Illinois’ Constitution already includes an equal rights section, ensuring “the equal protection of the laws shall not be denied or abridged on account of sex by the state or its units of local governments and school districts.”

No matter what happens with the federal proposal, Andersson added, the action taken by Virginia’s General Assembly marked “a momentous, historic day.” He drove 12 hours from Chicago to the Mother of Presidents, as the commonwealth is nicknamed, to be there.

Lang said encouraging Illinois’ ratification of the Equal Rights Amendment was a “labor of love for [him] for a very long time.”

“It should never have been as hard as it was to pass,” he said. “This is an issue that is well overdue, and to treat women in America as second-class citizens in the year of 2020 would be beyond wrong — it would be immoral. In a very real way, I think Illinois kind of jump-started the process for Virginia.”

Democratic Gov. J.B. Pritzker said in a statement that he has been a lifelong advocate for women’s rights.

“I’m overjoyed to see three-fourths of the United States ratify the Equal Rights Amendment,” Pritzker said. “These 24 words cement women’s equality into our Constitution and open a new chapter in American history where discrimination on the basis of sex is no longer tolerated. Our nation has a moral imperative to adopt this groundbreaking and common-sense statement as the 28th Amendment to the United States Constitution.”

And a spokesperson for Attorney General Kwame Raoul, who voted in support of the Equal Rights Amendment as a senator two years ago, said the office is “evaluating all options to ensure that equal rights are not contingent upon a person’s gender or sex.”

Illinois Congressional reps weigh in

U.S. SEN. DICK DURBIN (D) — “Senator Durbin has spoken to this issue many times, and his record is well known,” a spokesperson said in an email.

U.S. SEN. TAMMY DUCKWORTH (D) — Her office did not return a request for comment.

CONGRESSMAN BOBBY RUSH (D-1ST DISTRICT) — His office did not return a request for comment.

CONGRESSWOMAN ROBIN KELLY (D-2ND DISTRICT) — “After decades of witnessing women’s rights being eroded at the whims of legislatures, it’s long past time to enshrine women’s rights to equality in the Constitution,” the congresswoman said in an emailed statement. “I will fight to remove any false barriers to the ERAs ratification — we’ve waited long enough!”

CONGRESSMAN DAN LIPINSKI (D-3RD DISTRICT) — His office did not return a request for comment.

CONGRESSMAN JESUS “CHUY” GARCIA (D-4TH DISTRICT) — “The Equal Rights Amendment (ERA) has now been ratified in 38 states. This is a historic vote that is long overdue. We must continue moving forward to ensure this amendment is added to the U.S. Constitution to affirm women’s equality and prohibiting discrimination of the basis of sex. Now Congress needs to take the necessary steps to remove the deadline to ratify the ERA so that we can swiftly ratify the amendment. We owe it to our mothers, sisters, daughters and granddaughters,” the congressman said in an emailed statement.

CONGRESSMAN MICHAEL QUIGLEY (D-5TH DISTRICT) — His office did not return a request for comment.

CONGRESSMAN SEAN CASTEN (D-6TH DISTRICT) — “Today’s historic vote in Virginia is a victory for equality. While it’s long overdue, it’s never been more important to guarantee women are treated equally under the law. As a strong advocate for equal rights, I celebrate this historic moment and will continue to work in Congress to lift the 40-year deadline for the ratification of the Equal Rights Amendment,” the congressman said in an emailed statement.

CONGRESSMAN DANNY K. DAVIS (D-7TH DISTRICT) — “The expected Virginia vote on the ERA is historic and long, long past due. I look forward to taking appropriate votes in the near future to convert this long struggle into Constitutional law. Then comes the real test: making these words into a reality in every phase of American life. That struggle remains central to our democracy,” the Congressman said in an emailed statement.

CONGRESSMAN RAJA KRISHNAMOORTHI (D-8TH DISTRICT) — “The Congressman supports the Equal Rights Amendment and will push Congress to lift the deadline,” a spokesperson said in an email.

CONGRESSWOMAN JAN SCHAKOWSKY (D-9TH DISTRICT) — “The Equal Rights Amendment is long overdue, and I will continue to work with my colleagues and advocates to push for its enactment following ratification in Virginia. I am an original co-sponsor of H.J. Resolution 38, which currently has 218 co-sponsors, that clarifies that this amendment should take effect. This amendment enshrines the equality we fight for every day, making sure men and women are given the same rights and opportunity in legal and civil matters,” the congresswoman said in an emailed statement.

CONGRESSMAN BRAD SCHNEIDER (D-10TH DISTRICT) — His office did not return a request for comment.

CONGRESSMAN BILL FOSTER (D-11TH DISTRICT) — “Two years ago, Illinois chose to be on the right side of history when it ratified the ERA, rectifying the historic error of its 1972 vote against it. Today, we have the necessary three-quarters of states we need. While I understand there is a question of whether the deadline is constitutional, I have always supported legislation to remove it, because a deadline for equality is unconscionable. It’s already overdue,” the congressman said in an emailed statement.

CONGRESSWOMAN LAUREN UNDERWOOD (D-14TH DISTRICT) — “Congresswoman Underwood supports the Equal Rights Amendment and is a co-sponsor of Rep. Speier’s bill to remove the deadline for the ratification of the Equal Rights amendment [sic],” a spokesperson said in an email.

CONGRESSMAN ADAM KINZINGER (R-16TH DISTRICT) — His office did not return a request for comment.

CONGRESSWOMAN CHERI BUSTOS (D-17TH DISTRICT) — “Every person deserves equal rights under the law — it’s that simple. In 2018, my home state of Illinois became the 37th state to ratify the Equal Rights Amendment and I’m thrilled to see Virginia become the pivotal 38th. As a proud co-sponsor of the resolution that would eliminate Congress’ nearly 40-year deadline, I will continue to fight to see the ERA fully ratified,” the congresswoman said in an emailed statement.

CONGRESSMAN BRAD SCHNEIDER (D-10TH DISTRICT) — His office did not return a request for comment.

CONGRESSMAN MIKE BOST (R-12TH DISTRICT) — His office did not return a request for comment.

CONGRESSMAN RODNEY L. DAVIS (R-13TH DISTRICT) — His office did not return a request for comment.

CONGRESSMAN JOHN SHIMKUS (R-15TH DISTRICT) — “The Equal Rights Amendment is unnecessary. The 14th Amendment to the Constitution already guarantees the equal protection of the laws to everyone — male or female — who was born or naturalized in the United States. Frankly, the only subpopulation not covered by the 14th Amendment is our fellow citizens who are still in their mothers’ womb. A Constitutional Amendment guaranteeing their inalienable right to life and equal protection under the laws is necessary, and it would earn my full support,” the congressman said in an emailed statement.

CONGRESSMAN ADAM KINZINGER (R-16TH DISTRICT) — His office did not return a request for comment.

CONGRESSWOMAN CHERI BUSTOS (D-17TH DISTRICT) — “Every person deserves equal rights under the law — it’s that simple. In 2018, my home state of Illinois became the 37th state to ratify the Equal Rights Amendment and I’m thrilled to see Virginia become the pivotal 38th. As a proud co-sponsor of the resolution that would eliminate Congress’ nearly 40-year deadline, I will continue to fight to see the ERA fully ratified,” the congresswoman said in an emailed statement.

CONGRESSMAN DARIN LaHOOD (R-18TH DISTRICT) — His office did not return a request for comment.