Co-Chair, ERA Task Force
National Council of Women's Organizations
The proposed Equal Rights Amendment to the United States Constitution is a
political and cultural inkblot, onto which many people project their greatest
hopes or deepest fears about the changing status of women. Since it was first
introduced in Congress in 1923, the ERA has been the object of both enthusiastic
support and fervid opposition. Interpretations of its intent and potential
impact have been varied and sometimes contradictory.
The following answers to frequently asked questions about the ERA are provided
in order to encourage evaluation of the amendment on the basis of facts rather
than misrepresentations. (printer-friendly
|What is the complete text of the Equal Rights Amendment? |
Section 1. Equality of rights
under the law shall not be denied or abridged by the United States or
by any state on account of sex.
Section 2. The Congress shall
have the power to enforce, by appropriate legislation, the provisions
of this article.
Section 3. This amendment shall
take effect two years after the date of ratification.
|Why is an Equal Rights Amendment to the U.S. Constitution necessary?|
The Equal Rights Amendment is needed in order to guarantee for the first
time in our country’s history that the rights affirmed by the U.S.
Constitution are held equally by all citizens without regard to sex. The ERA
would provide a legal remedy against sex discrimination for both women and
Its most important effect would be to clarify the status of sex
discrimination for federal and state courts, whose decisions still deal
inconsistently with such claims. For the first time, sex would be a suspect
classification, as race currently is. As a result, governmental actions that
treat males or females differently as a class would be subject to strict
judicial scrutiny, and they would have to meet the highest level of
justification – a necessary relation to a compelling state interest – in
order to be upheld as constitutional.
To actual or potential offenders who would try to write, enforce, or
adjudicate laws inequitably, the ERA would send a strong message – that the
Constitution has zero tolerance for sex discrimination under the law.
|Why is the ERA sometimes referred to as the Women’s Equality
The ERA is sometimes
referred to as the Women’s Equality Amendment to emphasize that women have
historically been guaranteed fewer rights than men, and that equality can be
achieved by raising women’s legal rights to the same level of constitutional
protection as men’s.
As its sex-neutral language makes clear, however, the ERA’s guarantee of
equal rights would protect both women as a class and men as a class against
sex discrimination under the law.
|What is the political history of the ERA?|
The Equal Rights Amendment was written in
1923 by woman suffrage leader and lawyer Alice Paul, and it was introduced
into Congress that same year by a nephew of legendary suffragist Susan B.
Anthony. It was then reintroduced into every session of Congress until it
finally passed the Senate and the House of Representatives by the required
two-thirds majority and was sent to the states for ratification on March 22,
1972. An original seven-year deadline was later extended by Congress to
June 30, 1982, but when this deadline expired, only 35 of the necessary 38
states (the constitutionally required three-fourths) had ratified the ERA.
The Equal Rights Amendment has been reintroduced into every session of
Congress since 1982. In the 110th Congress (2007-2008), the ERA
ratification bills are S.J.Res. 10 (lead sponsor, Sen. Edward
Kennedy) and H.J.Res. 40 (lead sponsor, Rep. Carolyn Maloney).
|Which 15 states have not ratified the ERA?|
The 15 states whose legislatures have not ratified the Equal Rights
Amendment are Alabama, Arizona, Arkansas, Florida, Georgia, Illinois,
Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South
Carolina, Utah, and Virginia.
|Why are these “unratified states” being asked to ratify the ERA now,
even though the 1982 deadline has passed?|
Based on a “three-state strategy” to put the ERA into the Constitution,
ratification bills have been introduced since 1995 in one or more
legislative sessions in Arizona, Arkansas, Florida, Illinois, Mississippi,
Missouri, Oklahoma, and Virginia. ERA bills have been voted out of committee
in some of those states, and the Illinois House (but not the Senate) passed
an ERA ratification bill in 2003.
The three-state strategy was developed following ratification of the
Constitution’s 27th Amendment in 1992, more than 203 years after its passage
by Congress in 1789. Acceptance of that ratification period as sufficiently
contemporaneous has led some ERA supporters to argue that Congress has the
power to maintain the legal viability of the ERA’s existing 35 state
ratifications. The time limit on ERA ratification is open to change, as
Congress demonstrated in extending the original deadline, and precedent with
the 14th and 15th Amendments shows that rescissions (legislative votes
retracting ratifications) are not valid. Therefore, Congress may be able to
accept state ratifications that occur after 1982 and keep the existing 35
The legal analysis for this strategy is explained in “The Equal Rights
Amendment: Why the ERA Remains Legally Viable and Properly Before the
States” by Allison Held et al. in William & Mary Journal of Women
and the Law, Spring 1997. The Congressional Research Service analyzed
this article and concluded that acceptance of the Madison Amendment does in
fact have implications for the three-state strategy, and that the issue is
more of a political question than a constitutional one.
Since 1994, Rep. Robert Andrews has been the lead sponsor of a resolution (H.Res.
757 in the 110th Congress) stating that when an additional three states
ratify the ERA, the House of Representatives shall take any necessary action
to verify that ratification. Rep. Andrews and Rep. Carolyn Maloney (House
leader of the “start-over” strategy of passing an ERA ratification bill out
of Congress and getting 38 new ratifications) are co-sponsors of each
other’s bills, and ERA supporters generally believe that both strategies
should be pursued in the effort to put the ERA into the Constitution.
|Do some states have state ERAs or other guarantees of equal rights on
the basis of sex?|
Only a federal Equal Rights Amendment can provide U.S. citizens with the
highest and broadest level of legal protection against sex discrimination.
However, 22 states – Alaska, California, Colorado, Connecticut, Florida,
Hawaii, Illinois, Iowa, Louisiana, Maryland, Massachusetts, Montana, New
Hampshire, New Jersey, New Mexico, Pennsylvania, Rhode Island, Texas, Utah,
Virginia, Washington, and Wyoming – provide in their constitutions either
inclusive or partial guarantees of equal rights on the basis of sex.
(As a point of historical comparison: by the time the 19th Amendment
guaranteeing women’s right to vote was added to the Constitution in 1920,
one-quarter of the states had enacted state-level guarantees of that right.)
States guarantee equal rights on the basis of sex in various ways. Some
(e.g., Utah, Wyoming) entered the Union in the 1890s with constitutions that
affirm equal rights for male and female citizens. Some (e.g., Colorado,
Hawaii) amended their constitutions in the 1970s with language virtually
identical to the federal ERA. Some (e.g., New Jersey, Florida) have language
in their state constitutions that implicitly or explicitly includes both
males and females in their affirmation of rights. Some states place certain
restrictions on their equal rights guarantees: e.g., California specifies
equal employment and education rights, Louisiana prohibits “arbitrary and
unreasonable” sex discrimination, and Rhode Island excludes application to
Ironically, five states with equal rights amendments or guarantees (Florida,
Illinois, Louisiana, Utah, and Virginia) have not ratified the federal ERA.
State-level equal rights jurisprudence over many decades has produced a
solid body of evidence about the prospective impact of a federal ERA and has
refuted many of the extreme claims of ERA opponents. Further information on
state ERAs is available in “State Equal Rights Amendments Revisited:
Evaluating Their Effectiveness in Advancing Protection Against Sex
Discrimination” by Linda J. Wharton, Esq., in Rutgers Law Journal
(Volume 36, Issue 4, 2006).
|The 14th Amendment guarantees all citizens equal protection of the
laws, so why do we still need the ERA?|
The 14th Amendment was ratified in 1868, after the Civil War, to deal
with race discrimination. In referring to the electorate, it added the word
"male" to the Constitution for the first time. Even with the 14th Amendment
in the Constitution, women had to fight a long and hard political battle to
have their right to vote guaranteed through the 19th Amendment in 1920.
It was not until 1971, in Reed v. Reed, that the Supreme Court
applied the 14th Amendment for the first time to prohibit sex
discrimination, in that case because the circumstances did not meet a
rational-basis test. However, in that and subsequent decisions (Craig v.
Boren, 1976; United States v. Commonwealth of Virginia, 1996),
the Court declined to elevate sex discrimination claims to the strict
scrutiny standard of review that the 14th Amendment requires for certain
suspect classifications, such as race, religion, and national origin.
While the Court now applies heightened (so-called “skeptical”) scrutiny and
requires extremely persuasive evidence in cases of sex discrimination, these
claims can still be evaluated under a less protective intermediate standard
of review, which requires only that classifications based on sex must
substantially advance important governmental objectives.
The ERA would require courts to go beyond the current application of the
14th Amendment by adding sex to the list of suspect classifications
protected by the highest level of strict judicial review. Under the ERA, a
governmental classification on the basis of sex would have to bear a
necessary relation to a compelling state interest in order to be upheld as
|Aren’t there adequate legal protections against sex discrimination in
the Equal Pay Act, the Pregnancy Discrimination Act, Titles VII and IX of
the 1964 Civil Rights Act, court decisions based on the 14th Amendment, and
Without the ERA in the Constitution, the statutes and case law that have
produced major advances in women’s rights since the middle of the last
century are vulnerable to being weakened, ignored, or reversed. Congress by
a simple majority can amend or repeal anti-discrimination laws, the
Administration can negligently enforce such laws, and the Supreme Court can
use the intermediate standard of review to permit some regressive forms of
Ratification of the ERA would also improve the United States’ global
credibility in this area. The governing documents of many other countries,
however imperfectly implemented, affirm legal equality of the sexes.
Ironically, some of those constitutions – in Japan and Afghanistan, for
example – were written under the direction of the United States government.
The ERA is necessary to make our own Constitution conform with the promise
engraved over the entrance of the Supreme Court: “Equal Justice Under Law.”
|How has the ERA been related to reproductive rights?|
The repeated claim of opponents that the ERA would require government to
allow “abortion on demand” is a clear misrepresentation of the evidence from
federal and state laws and court decisions.
In federal courts, including the Supreme Court, various restrictive
contraceptive and abortion laws have been invalidated during the past 50
years based on application of the constitutional principles of the right of
privacy and the due process clause of the 14th Amendment. The principles of
equal protection or equal rights have not up to this point been applied to
such cases at the federal level.
At the state level, such cases are argued primarily under state
constitutional privacy and equal protection guarantees, and the decisions
are linked more closely to the progressive or conservative nature of state
courts than to the existence of a state ERA. In fact, the presence or
absence of a state ERA does not necessarily correlate with a state’s legal
climate for reproductive rights.
For example, the Pennsylvania Supreme Court decided that restrictions on
Medicaid funding of abortions were constitutional despite that state’s ERA,
and the U.S. Supreme Court in separate litigation (Planned Parenthood v.
Casey, 1992) upheld Pennsylvania’s restrictions on the abortion
procedure under the federal due process clause. Missouri enforces
significant restrictions on abortion despite its state constitutional equal
State ERAs in Connecticut and New Mexico have been applied by state courts
to abortion decisions on a very specific issue – whether a state that
provides funding to low-income Medicaid-eligible women for childbirth
expenses should also be required to fund medically necessary abortions for
women in that government program. The courts decided that those two states
must fund both pregnancy-related procedures if they fund either, in order to
ensure that the government does not use fiscal pressure to exert a chilling
influence on a woman’s constitutional right to make medical decisions about
State court decisions on reproductive rights are not conclusive evidence of
how federal courts would decide such cases. For example, the federal “Hyde
Amendment” has for decades withstood legal challenges and prohibited the
federal government from funding most or all Medicaid abortions, even many
that are medically necessary.
|How has the ERA been related to discrimination based on sexual
orientation and the issue of same-sex marriage?|
Despite opponents’ claims that the ERA would require government to permit
same-sex marriages, no U.S. Supreme Court decision up to now has dealt with
the issue of whether or not discrimination on the basis of sexual
orientation is a form of sex-based discrimination.
At the state level, court cases and statutes demonstrate that the
presence or absence of a state ERA is not a predictor of the legal status of
same-sex marriage or civil union in that state.
Some states with state ERAs have maintained the legal definition of
marriage as a union between a man and a woman. In 2006, the Supreme Court of
Washington ruled that a state law limiting marriage to one man and one woman
does not violate the state constitution. Alaska and Hawaii have amended
their constitutions to declare marriage a contract between a man and a
woman. A family law statute in Maryland states that "[o]nly a marriage
between a man and a woman is valid," and a lawsuit challenging that
prohibition of same-sex marriage failed to have the law overturned. Florida
voters in 2008 passed a constitutional amendment to ban same-sex marriage.
Other states with state ERAs have legalized some form of same-sex union.
The Supreme Court of New Jersey relied on state equal protection guarantees
in ruling that same-sex couples must be afforded the same opportunities to
obtain the benefits of marriage as opposite-sex couples, and the Legislature
responded by legalizing civil unions but not same-sex marriages.
The Supreme Court of Massachusetts held that limiting marriage to
opposite-sex couples violated the individual liberty and equality guarantees
of the state constitution, but it declined to decide that sexual orientation
is a suspect classification. Connecticut in 2005 was the first state to
legalize civil unions without a prior court decision, and in 2008 the state
Supreme Court went further by ruling that same-sex couples have not only the
right to enter into a civil union but the right to marry.
In 2008, the Supreme Court of California, despite its conservative
reputation, legalized same-sex marriage under the principle of equal
protection, but disagreed with a claim by plaintiffs that discrimination on
the basis of sexual orientation should be considered discrimination on the
basis of sex or gender. In 2008 voters passed Proposition 8 to ban same-sex
marriage, but the validity of the initiative process in that case is being
challenged in court.
Vermont is a state without an ERA but with legal same-sex civil unions.
Ironically, a 1986 ballot initiative to add an ERA to the state constitution
was defeated in part by opponents’ claims that it would legitimize same-sex
unions. Nevertheless, in 1999 the state Supreme Court decided under the
common benefits clause of the state constitution that same-sex couples must
be provided the benefits and protections of marriage in the form of civil
unions, and the Legislature responded by passing a civil union statute in
It is clear that laws and court decisions on this issue are steadily
evolving, virtually independent of equal rights amendments, in line with
increased public acceptance of homosexuality and the principle of equal
rights without regard to sexual orientation.
|How has the ERA been related to single-sex institutions?|
Even without an ERA in the Constitution, Supreme Court decisions in
recent decades have increasingly limited the constitutionality of single-sex
In 1972, the Court found in Mississippi University for Women v. Hogan
that Mississippi’s policy of refusing to admit males to its all-female
School of Nursing was unconstitutional. Justice Sandra Day O’Connor wrote in
the majority decision that a gender-based classification may be justified as
compensatory only if members of the benefited sex have actually suffered a
disadvantage related to it.
In the Court’s 1996 United States v. Commonwealth of Virginia
decision, which prohibited the use of public funds for then all-male
Virginia Military Institute unless it admitted women, the majority opinion
written by Justice Ruth Bader Ginsburg stated that sex-based classifications
may be used to compensate the disadvantaged class “for particular economic
disabilities [they have] suffered,” to promote equal employment opportunity,
and to advance full development of the talent and capacities of all
citizens. Such classifications may not be used, however, to create or
perpetuate the legal, social, and economic inferiority of the traditionally
disadvantaged class, in this case women.
Based on these precedents, single-sex institutions whose aim is to
perpetuate the historic dominance of one sex over the other are already
unconstitutional, while single-sex institutions that work to overcome past
discrimination are constitutional and, if the courts choose, could remain so
under an ERA.
|How has the ERA been related to women in the military?|
Women have participated in every war our country has ever fought, and
they now hold top-level positions in all branches of the military as well as
in government defense and national security institutions. They are fighting
and dying in combat, and the armed services could not operate effectively
without their participation. However, without an ERA, their equal access to
military career ladders and their protection against sex discrimination are
The issue of the draft is often raised as an argument against the ERA. In
fact, the lack of an ERA in the Constitution does not protect women against
involuntary military service. Congress already has the power to draft women
as well as men, and the Senate debated the possibility of drafting nurses in
preparation for a possible invasion of Japan in World War II.
Traditionally and currently, only males are required to register for the
draft. After leaving Vietnam in 1973, the United States shifted to an
all-volunteer military and has not since that time conscripted registered
men into service. In 1981, in Rostker v. Goldberg, the Supreme Court
upheld the constitutionality of male-only draft registration.
In recent years, however, Department of Defense planning memos and
Congressional bills dealing with the draft or national service have included
both men and women in the system. With or without an ERA in the
Constitution, it is virtually certain that a reactivated male-only draft
would be legally challenged as a form of sex discrimination, and it is
probable that it would be found unconstitutional.
Congress could respond by developing a system of national service that would
balance equality on the basis of sex with the functional status of
individuals. The system could include both military and civilian placements,
and exemptions could be granted as always to those unqualified to serve for
reasons of physical inability, parental status, or other characteristics.
Since at this time there is no imminent prospect of reinstituting the draft
and no way to know what its requirements would be if it were reactivated, a
discussion about the ERA’s relation to it is primarily theoretical.
However, the immediate practical value of putting the ERA into the
Constitution would be to guarantee equal treatment for the women who
voluntarily serve in the military and to provide them with the “equal
justice under law” that they are risking and sometimes sacrificing their
lives to defend.
|Would the ERA take away existing benefits and protections that women
now receive (e.g., alimony, child custody, etc.)?|
Most family law is written, administered, and adjudicated at the state
level, and the ERA would not automatically eliminate any of those laws.
Legislators will have two years after the ERA is ratified to amend sex-based
classifications in any laws that might be challenged as unconstitutional.
Those laws can be brought into conformity with the ERA by substituting
sex-neutral categories (e.g., "primary caregiver" instead of "mother") to
achieve their objectives.
Courts have for many years been moving in the direction of sex-neutral
standards in family court decisions, and legislatures have been writing laws
with more attention to sex-neutral language and intent, so it is unlikely
that the ERA would cause a noticeable acceleration of those trends.
Court decisions in states with ERAs show that the benefits opponents claim
women would lose are not in fact declared unconstitutional if they are
provided in a sex-neutral manner based on function rather than on
stereotyped sex roles. That same principle would apply to laws and benefits
(e.g., Social Security) at the federal level.
|Does the ERA shift power from the states to the federal government?|
Opponents have called Section 2 of the ERA ("The Congress shall have the
power, by appropriate legislation, to enforce the provisions of this
article") a "federal power grab." In fact, that clause, with some variation
in wording, appears in eight other amendments, beginning with the 13th
Amendment in 1865.
The ERA would not transfer jurisdiction of any laws from the states to the
federal government. It would simply be one more legal principle in the U.S.
Constitution by which the constitutionality of governmental actions is
judged by the courts.
|What level of public support exists for a constitutional guarantee of
equal rights for women and men?|
An Opinion Research Corporation poll commissioned in 2001 by the ERA
Campaign Network of Princeton, NJ shows that nearly all U.S. adults – 96% –
believe that male and female citizens should have equal rights. The vast
majority – 88% – also believe that the U.S. Constitution should make it
clear that these rights are supposed to be equal. However, nearly
three-quarters of the respondents – 72% – mistakenly assume that the
Constitution already includes such a guarantee.
By presenting these three questions without specifically mentioning the
Equal Rights Amendment, the survey filtered out the negative effect of
misrepresentations of the ERA by its opponents.
It is clear that the citizens of the United States overwhelmingly support a
constitutional guarantee of equal rights on the basis of sex, and
ratification of the Equal Rights Amendment will achieve that goal.