McCloud Bros.

This post concludes my discussion of the three-state strategy for ratifying the Equal Rights Amendment (ERA). For background, see Part 1.

Can Congress Change the Equal Rights Amendment's Deadline?

The answer to this question may seem obvious. After all, Congress already did change the ERA deadline. The ERA's preamble provided that the states had seven years to ratify the ERA. Six months before that deadline expired on March 22, 1979, a less-than-two-thirds majority in Congress passed a joint resolution extending it to June 30, 1982. Their power to do so had been endorsed (testimony beginning on page 5) by a lawyer in the Office of Legal Counsel, John Harmon.

Besides pointing to that history, ERA supporters also highlight the fact that the deadline appears in the preamble to the ERA--that is, the resolving clause--rather than in the body of the Amendment. When states vote to ratify an amendment, they aren't voting on the resolving clause, but only on the amendment itself. So, the thinking goes, Congress can amend a time limit contained in a preamble, and it can do so by a simple majority vote (51%) rather than the two-thirds majority needed to propose new amendments.

Opponents respond with the 1982 case of Idaho v. Freeman. In that case, Idaho sought a declaratory judgment that (1) Idaho had validly rescinded its prior ratification of the ERA, and (2) Congress could not extend the ERA deadline. The U.S. District Court for the District of Idaho ruled in Idaho's favor on both counts. Opponents can point to that ruling as evidence that courts won't necessarily adopt ERA supporters' arguments.

But they can't point to it as precedent. In October 1982, the U.S. Supreme Court vacated the district court's judgment (under the case name National Organization for Women v. Idaho). The Court did so because it found the case to be moot, since the ERA's second deadline had passed without the ratification by 38 states. Though the Court didn't explain its reasoning, ERA opponents argue that the Court's action implies that the ERA is well and truly dead.

Can States Rescind a Prior Ratification?

Supporters of the Equal Rights Amendment give two answers to this question: (1) No. (2) It's up to Congress.

In saying no, supporters offer the text of Article V, which prescribes the methods for amending the Constitution. It speaks only of ratification, not rejection or rescission. So, they argue, both rejections and purported rescissions or withdrawals are irrelevant; only ratification decisions count.

Alternatively, the decision whether to respect a purported rescission is left to Congress. This argument is based on the Supreme Court's opinion in Coleman, which I discussed in my last post, and the ratification of the 14th Amendment. As with the issue of timing raised in that case, a plurality of the Supreme Court suggested that whether a rescission was effective was a political question for Congress to decide. Congress had done precisely that in 1868. Confronting Ohio's and New Jersey's attempts to rescind their earlier 14th Amendment ratifications, Congress decided to ignore the rescissions, counting both states among those that had ratified the amendment.

Equal Rights Amendment opponents raise the same objections to relying on Coleman on this issue as they do on the timing issue. They also argue that it makes no sense to deprive states of the power to rescind a ratification, since that decision would reflect a lack of consensus among the requisite number of states. As the district court put it in its vacated judgment in Idaho v. Freeman,

To allow a situation where either the first act of a state is irrevocable or where a rejection can be changed by a ratification, but not permit rescission, would permit an amendment to be ratified by a technicality--where clearly one is not intended--and not because there is really a considered consensus supporting the amendment which is the avowed purpose of the amendment process.

Conclusion

The viability of the Equal Rights Amendment in 2017 remains an open question, but Nevada's recent vote to ratify the lapsed amendment suggests that it may not remain open for much longer. If two more states vote to ratify the ERA, and if Democrats regain control of Congress and enact resolutions like H.J. Res. 53 and S.J. Res. 5, the Supreme Court will almost certainly be called upon to answer the questions raised by the three-state strategy once and for all.