Background

In 2018, Illinois became the 37th state to ratify the Equal Rights Amendment (ERA). It did so with the support and encouragement of the ISBA. In 2020, Virginia became the 38th state to ratify the ERA, meaning that three-quarters of the states had ratified the amendment as required by Article V of the Constitution, clearing the way for the ERA to become the 28th Amendment to the U.S. Constitution. However, the Trump Administration Department of Justice issued an opinion to the national archivist taking the position that the ERA ratifications were not valid and instructed the archivist not to certify and publish the ERA as the 28th Amendment to the U.S. Constitution. To date, the national archivist has not certified or published the ERA.^1.

American Bar Association Resolution

At its Annual Meeting in Chicago in July 2024, the American Bar Association (ABA) is expected to consider adoption of a resolution recognizing the ERA as the 28th Amendment to the U.S. Constitution because it satisfies all requirements of Article V of the U.S. Constitution. Supporters of this ABA Resolution have asked the ISBA to support its adoption.

What Is the ERA?

The text of the Equal Rights Amendment states:

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.

This language has been ratified by 38 states since Congress passed the joint resolution in 1972. There is no time limit for ratification in Article V. However, Congress included a time limit for the ratifications in its resolution, giving rise to arguments that the last three ratifications came too late as they were after the time limit. The draft ABA Resolution rejects the argument that the ratifications are time barred because the time bar is not part of Article V of the Constitution and because it was contained in the text of a congressional resolution and not in the language of the amendment itself.

The other main legal argument of those opposed to recognition of the ERA as the 28th Amendment is that five states attempted to rescind their resolutions of ratification some years after they had adopted them.^2. However, when the 14th Amendment to the U.S. Constitution was adopted, a few states also attempted to rescind their previous ratifications. The federal government took the position that those attempted rescissions were invalid and determined that the 14th Amendment was part of the U.S. Constitution.^3.

Why Is It Important to Adopt the ERA?

Women are not mentioned anywhere in the U.S. Constitution. When the Equal Protection clause of the 14th Amendment was ratified, it was focused on issues of racial equality. While the U.S. Supreme Court had expanded the scope of equal protection to include gender equality, some Supreme Court justices have expressed skepticism that it should be expanded beyond its original purpose to apply to issues other than race.^4. Given the current Supreme Court’s focus on the historical meaning of the Constitution, it is possible that gains for gender equality may be reversed. In addition, even though gender equality is currently recognized under the U.S. Constitution, gender discrimination is subjected to intermediate scrutiny rather than strict scrutiny, making it easier for governmental bodies to discriminate on the basis of gender.^5.

Conclusion 

The ERA is more than a symbol. It is a promise that we all are equal under the law made manifest. The ISBA has already formally supported Illinois’ ratification of the ERA. Both the Human and Civil Rights Section Council and the Women and the Law Committee have approved of the following resolution asking the ISBA to help finish the process by adding its voice to that of the ABA in recognizing the ERA as the 28th Amendment to the U.S. Constitution.

Suggested ISBA Resolution 

WHEREAS, the ISBA is the voice of the legal profession of Illinois, it is fitting and proper for this Association to take steps to ensure gender equality in the U.S. Constitution;

AND WHEREAS, for the reasons set forth in the attached draft ABA Resolution;

THEREFORE, be it resolved the Illinois State Bar Association declares its support of adoption of a resolution by the American Bar Association recognizing the Equal Rights Amendment as the 28th Amendment to the U.S. Constitution.

Cindy G. Buys is a professor of law at the Simmons Law School, Southern Illinois University. She serves on both the ISBA Human and Civil Rights Section Council and the International and Immigration Law Section Council.