Audrey Muck

Do you wonder how our ERA bills will move forward toward ratification here in North Carolina? Here’s a quick primer on the process and where things stand right now:

• Bill Introduced
  • Brief Window for Co-Sponsors Opens
• 1st Reading in each Chamber.
• Sent to Committee. Committee hearings are optional, but we hope the committees will choose to hold hearings and vote the bills out of committee and back to the full chamber. If no action is taken, the bill dies in committee. Click on the committee names below, where the ERA has typically been sent, to see who serves on each committee. While you’re there you can see what other bills have been assigned to the committee and subscribe to get email updates about committee actions.
  • House Judiciary Committee.
  • Senate Rules Committee; historically this is the committee bills have been sent to to die, but we have plenty of ERA friends on this committee, too!
• When a Committee approves a bill, it returns to the full chamber for 2nd Reading & Debate
• 3rd Reading & More Debate in Chamber
• Bill Moves to Other Body (repeat process)
• Other Body Approves Bill
• Bill is Ratified!

When an amendment to the U.S. Constitution is ratified by the NC General Assembly, it doesn’t require the Governor’s signature.

In the case of the Equal Rights Amendment, we also need action at the Federal level to lift the time limit unfortunately written into the preamble back in 1972 by North Carolina’s own Senator Sam Ervin. Currently there are bills in Congress to do just that. You can also read and track those online at Congress.gov; just type “Equal Rights Amendment” in the search box and it will bring up what bills are live in this Congressional session. There are bills to lift the time limit as well as bills to start the amendment process over from the beginning. The U.S. House of Representatives has repeatedly passed bills to lift the time limit, but the U.S. Senate continues to squash the sister bill.

ERA advocates have finally achieved the required ratification by 38 states when Virginia ratified on January 27, 2020. Lawsuits are pending by both pro- and anti-ERA forces. The ERA-NC Alliance has signed on to the ERA Coalition’s amici briefs.

We will continue to post updates and calls to action as events unfold! Sign up for our monthly news and action letter to stay up to date on developments.

The Equal Rights Amendment: Common Legal Questions

Prepared for the ERA-NC Alliance by Winston & Strawn, LLP

1. What does the ERA do, and why is it important?

The U.S. Constitution does not guarantee equal rights for women. According to the late Justice Scalia, “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.”

The ERA would change that. It would guarantee that “[e]quality of rights under the law shall not be denied or abridged by the United States or any State on account of sex.” It would apply, for example, if the government passes a discriminatory law, or takes female assault victims less seriously than male victims, or imposes a tax
that disadvantages women in particular, or denies female soldiers an equal chance to defend their country and move up in the ranks. The ERA would stand in the way of these and other discriminatory “state actions.”

2. Why is the ERA necessary, in light of the Constitution’s Equal Protection Clause?

The Fourteenth Amendment says that no state may “deny to any person within its jurisdiction the equal protection of the laws.” The Fifth Amendment applies the same principle to the federal government. But these protections do not apply to sex in the same way they apply to race or national origin.

Today, when a court considers a challenge to a law that discriminates based on sex, it will uphold the law as long as it bears a “substantial relationship” to an “important government purpose.” This is called intermediate scrutiny. The ERA would require strict scrutiny-the same test that applies to discrimination based on race
and national origin. Under that test, the law must be “narrowly tailored” to achieve a “compelling government interest,” and it must be the “least restrictive means” of doing so. This means that the court would strike down the law if the goal behind it is not appropriate and compelling, or if there is a different way to accomplish it.

3. How would the ERA differ from the protections already provided under the law?

There are a variety of local, state, and federal laws that prohibit discrimination. For example, Title VII is a federal law that prohibits employers from discriminating based on sex, race, color, national origin, or religion. It protects employees who work for corporations over a certain size, as well as federal and state employees. Title IX is a federal law that (with certain exceptions) requires any school that receives federal funds to give students equal opportunities regardless of sex. The ERA addresses discrimination from a different perspective: it would prohibit discrimination by the government, including in statutes, regulations, employment, and law enforcement.

4. What about the deadline for ratification that expired in 1982?

The ERA was ratified by 35 states before the deadline imposed by Congress. Last spring, Nevada became the 36th. In May of 2018 Illinois became the 37^th. One more ratification is needed to reach the threshold set by the Constitution.

Congress created the deadline, so it must have the power to remove it-or to extend it (as it did in 1979). The Supreme Court has held that it is up to Congress-not the courts-to decide how to deal with the timing of ratification. [Coleman v. Miller (1939).] A decision to remove the deadline should be analyzed the same way.

5. Didn’t some states “undo” their ratifications? What is the impact of that?

It is true that five of the states that ratified the ERA later passed resolutions attempting to limit or rescind their prior ratifications. But historically, resolutions like these have not prevented the prior ratifications from counting toward the threshold. When the Fourteenth Amendment was ratified in 1868, Congress declared it to be effective even though two states had passed resolutions attempting to rescind. The Supreme Court has said that it will not second-guess this kind of determination. [Coleman v. Miller (1939).]

Although one court held in 1981 that a state did have the power to rescind its ratification of the ERA, the Supreme Court vacated that decision after the ERA deadline had passed and the appeal to the Supreme Court had become moot. As of today, then, there is no case law holding that a ratification can be “undone.”

6. So, if 38 states ratify the ERA, what happens next?

Congress can then take action to remove, extend, or waive the earlier deadline. (There is already a proposed bill that would do this.) It could also express a view about the attempts to rescind the ratifications in five states.

7. Opponents of the ERA have said that it would prohibit any distinctions based on sex and would overturn laws that benefit women. Is that true?

No. The government would still be able to draw a distinction based on sex if it passes “strict scrutiny.” But most of the laws that people think of as benefitting women-like social security regulations, estate laws, laws requiring child and spousal support, and so on-are actually already sex-neutral. And for those that are not, legislators would have two years after the ERA is enacted to add broader language-like “spouse” rather than “wife.”

8. Opponents of the ERA say that if it passes, states will lose their power to legislate about family law, sex crime laws, and other laws impacted by gender. Is that true?

No. The ERA will not take any power away from states-except the power to make unnecessary distinctions based on sex.

9. Isn’t this all about changing the law on abortion?

No. The Supreme Court has held that the Constitution already protects the right to abortion. [Roe v. Wade (S.Ct. 1973).] And in North Carolina, ratifying a federal ERA will not change state law at all, so it will not lead to any change in state laws relating to abortion.

10. One anti-ERA organization has said that passing the ERA would require removing gender designations from bathrooms, locker rooms, jails, and hospital rooms. Is that true?

No. There is no reason to think that passing the ERA would have these kinds of effects. Other states, such as Illinois, have had equal rights guarantees in place for decades, and it has not eliminated separate women’s and men’s restrooms.

11. Isn’t it true that adopting the ERA won’t erase the gender wage gap?

Yes. The ERA alone would not erase the wage gap, because it would apply to “the United States and any State,” not to private employers directly. It might stop the government from rolling back anti-discrimination laws, but it will not automatically make them stronger. So in the fight for equality, there will be plenty left to do.

Updated 6/21/18
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