Phyllis Schlafly

Phyllis Schlafly

The Chicago Tribune recently reported the Illinois House of Representatives voted to ratify the Equal Rights Amendment.

That’s the controversial proposal from the 1970s that would amend the U.S. Constitution to state, “Equality of rights under the law shall not be abridged by the United States or by any state on account of sex.”

The Tribune said the Illinois vote put the ERA “one state away from possible enshrinement in the U.S. Constitution amid potential legal questions.

“I am appalled and embarrassed that the state of Illinois has not done this earlier,” Democratic Rep. Stephanie Kifowit of Oswego said in the report. “I am proud to be on this side of history and I am proud to support not only all the women that this will help, that this will send a message to, but I am also here to be a role model for my daughter.”

The newspaper credited “a resurgence in activism for women’s rights amid national demands to root out sexual discrimination and harassment in American culture in response to the #MeToo movement” for the vote.

The vote prompted legislative attorney Jon Shimabukuro of the Congressional Research Service to write about the challenges ERA proponents face years after the deadline for ratification expired.

Not only has the deadline passed, but some states that originally voted for it have rescinded their support.

Further, one of the 13 states that have never ratified it would need to have a change of heart.

The USHistory website provides a little background: National Women’s Party founder Alice Paul first proposed the ERA to Congress in 1923.

But nothing happened until the 1970s when the National Organization of Women took up the cause.

The late Phyllis Schlafly, a conservative icon, launched a “Stop ERA” movement that pointed out the impact the ERA would have on alimony, child custody, the draft and many other issues.

The proposal went through Congress and in a year 30 of the needed 38 states ratified it.

But it never reached 38.

Illinois would have been No. 37, but Shimabukuro pointed out the problems.

“Thirty-seven states have now ratified the ERA, and some supporters of the amendment maintain that ratification by just one additional state could result in its adoption. … Whether the ERA can be so adopted, however, is not entirely certain.

“Questions concerning the expiration of Congress’s original ratification deadline without approval by three-fourths of the states, and the rescission of ratifications by five states between 1973 and 1978, would likely have to be addressed before the ERA would be formally adopted.”

The Constitution itself, he pointed out, is silent on such details.

So there would be no bar to enforcement of a deadline set by Congress of ratification within seven years, which expired in 1979.

An entirely new resolution from Congress and ratification campaign may be needed, the CRS report suggested.

Or, the report said, Congress could vote to lift the deadline entirely, but such a move could be challenged legally.

And then there are the five states that reversed their original votes – Idaho, Kentucky, Nebraska, South Dakota and Tennessee.

A court ruling found that a rescission in such a case “should be recognized because it promotes ‘the democratic ideal by giving a truer picture of the people’s will.'”

Also, a previous federal court case found that Congress could not change a ratification deadline because it was part of the amendment itself.

It wouldn’t be an issue unless a 38th state ratifies the ERA, the report said.

But if that happens, at least two major fights would arise.

“It is likely that the amendment would face a court challenge, and in the course of that challenge, a court would probably review the 35 state ratifications obtained before the ERA’s original deadline,” the CRS report said. “Opponents of the ERA may argue that these ratifications became invalid once the original deadline passed.”

Second, the report said, opponents would target the five states that reversed their support.

 

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