Equal Rights Amendment advocates received a blow from one of the bill’s biggest and most consequential supporters when Supreme Court Justice Ruth Bader Ginsburg said that she believes that the deadline to ratify the ERA as a constitutional amendment has long expired. Instead, she recommends that efforts to codify the ERA start from scratch.
It’s not what ERA supporters wanted to hear from Ginsburg, who has long been one of the ERA’s strongest allies, and it puts a damper on their most recent campaign: In January, Virginia became the 38th—and arguably final—state to ratify the amendment, which simply states that, “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” Advocates argue that the Virginia vote triggered the threshold needed to pass the bill, even 48 years after it was first proposed.
But the decades-long fight has been riddled with setbacks and arbitrary deadlines. In January, The Department of Justice’s Office of Legal Counsel released an opinion stating that it was far too late to ratify the ERA, citing the March 1979 (and later 1982) expiration date initially set by Congress in 1972 and the five states that have since rescinded their support for the ERA. Meanwhile, ERA advocates have argued that the expiration date can be ignored if Congress so chooses because it was not written in the amendment itself and only its preamble, and that the Constitution doesn’t formally acknowledge rescission in the first place.
During an event at Georgetown Law School Monday night, Ginsburg was asked whether there would ever be an ERA on the federal level.“I would like to see a new beginning,” Ginsburg said. “I’d like it to start over.”
According to CNN, Ginsburg appears inclined to agree with the OLC, saying Virginia’s decision came “long after the deadline passed.” “There’s too much controversy about latecomers,” Ginsburg said. “Plus, a number of states have withdrawn their ratification. So if you count a latecomer on the plus side, how can you disregard states that said we’ve changed our minds?”
Still, Ginsburg emphasized that the ERA should ultimately be added to the constitution, noting that the 14th amendment’s equal protections clause doesn’t cut it.
“I would like to show my granddaughters that the equal citizenship stature of men and women is a fundamental human right,” Ginsburg said. “The union will be more perfect when that simple statement — that men and women are persons of equal citizenship stature — is part of our fundamental instrument of government. So even if the argument is it’s largely symbolic, it is a very important symbol.”
Even though, as Politico reports, the House likely pass a bill to remove the ERA deadline when it votes this week, it will likely be rejected the Republican-controlled Senate and vetoed by President Trump, especially thanks to a scare tactic pushed by anti-ERA goons: That the ERA would necessitate taxpayer-funded abortions.
“Everyone knows this renewed effort isn’t about women’s rights,” the office of House Republican Whip Steve Scalise said, summarizing the message being relayed to the GOP caucus. “It’s about eliminating federal and state life protections and ushering in an era of taxpayer funding of abortion.”
Conservatives argue that because only women can have abortions, any restrictions on the procedure could be deemed unconstitutional under the ERA — and they’re excoriating progressive supporters of the amendment for dancing around this open legal question.
This is the environment from which Ginsburg suggests ERA efforts start afresh: One in which the very deadline is up for debate. With Congress irreconcilably divided and statehouses pathologically conservative, it’s more than just nihilism driving this dread. It’s the understanding that this country won’t give the marginalized anything without a prolonged, tedious fight.