Roundtable #11 | Equal Rights Amendment
Τhe views in these articles are those of the authors and not of the Columbia Undergraduate Law Review
Section I: History of ERA
“We are the only country with a written constitution that does not prohibit discrimination based on sex,” Congresswoman Jackie Speier (D-CA-14) noted before the House of Representatives on Wednesday, March 17. [1] Speier spoke moments before the body voted on H.J. Res. 17, an effort intended to remove the ratification deadline on the Equal Rights Amendment (ERA). The three-sentence resolution will reach its 98th birthday this year. After Virginia ratified the amendment in 2020, it finally has the required thirty-eight states to theoretically pass. [2]
Before passing, however, the amendment faces multiple problems, which are mirrored and reflected in its creation. [3] When the National Woman’s Party proposed the ERA in 1923, the group struggled to gain widespread support from working women, as they feared the amendment would be used to undermine protections designed specifically for women. Such protections included workplace protection laws, gender-segregated bathrooms, and military transcription for women. [4] Though some concerns were laid to bed around the 1950s, when a wave of universal workplace protections swept the nation, cultural concerns about the implications of the ERA on families and the role of women more broadly in society persist.
Questions about the deadline for ratification and whether states can rescind their ratification dominate the legal disputes over the ERA. After twenty years of failed hearings in the House Judiciary Committee and a failed attempt to pass it in the House of Representatives two year prior, the Senate successfully passed the ERA in 1972. [5] The resolution’s preamble included a seven-year deadline for states to sign on to its ratification. Per the preamble’s text, thirty-eight states needed to ratify the amendment by 1979 for it to formally pass. Initially, feminist activists took this to be a modest but feasible task. The ERA had, and continues to have, popular support. [6] Nonetheless, when 1979 rolled around, only thirty-five states ratified the amendment, three short of the required three-fourths-majority. Though Congress extended the deadline by an additional three years, no additional states signed on by 1982, when the deadline formally passed. Since then, activists adopted a “three-state strategy” of targeting specific states for their vote to ratify. Their efforts succeeded when, nearly forty years later, Nevada voted to ratify the ERA, followed by Illinois and Virginia. However, proponents face further difficulties, as state legislatures in Nebraska, Tennessee, Idaho, Kentucky, and South Dakota rescinded their ratification. [7]
Thus, litigation is centered around three questions. First, can the Supreme Court make judgments on an amendment's validity? Precedent for legal action is shaky because the constitutional amendment process is touched so rarely in modern history. In 1922, Leser v. Garnett held that procedural irregularities were not under the purview of the courts, but that purely legal questions may be. [8] Today, this could implicate both the ERA deadline and the power of states to rescind ratification. Contrarily, in 1939, the Hughes Court in Coleman v. Miller held that said questions are inherently political, meaning they must be decided by Congress or by the Secretary of State, though the latter seems improbable today. [9]
Should the Supreme Court decide to hear cases about the ERA, then two other questions will likely be raised: Can the amendment still be ratified, though the stated deadline has passed? If so, can states rescind their votes for ratification? Debate surrounding the amendment’s deadline is likely to be the predominant point of contention. In the case of Dillon v. Gloss, argued in 1921, the Supreme Court upheld the necessity of ratification prior to a constitutional amendment’s deadline. [10] However, there is split consensus on whether this case constitutes necessary precedent, as it concerned itself with the 18th Amendment, which included its deadline for passage in the amendment itself, not in the preamble to the resolution introducing the amendment, as was the case with the ERA. Similarly, the 27th Amendment was passed long after its proposed deadline, giving leeway to arguments that deadlines may not be binding in nature. [11]
With legislation for the amendment facing a precarious future in the Senate, legal scholars suggest a new question may be added to the list. [12] If the Senate fails to pass S.J. Res. 1, allowing the ERA to be ratified, can a later Congress choose to retroactively pass said legislation? In essence, the question remains whether the ERA’s vote in the Senate in a couple of weeks signals the end of a nearly 100-year long fight or whether it will persist as both a political and a legal question.
By Emily Bach, Roundtable Contributor from Columbia University
Section II: The Deadline Conundrum in Dillon v. Gloss and Coleman v. Miller
Evidently, the current uncertainty surrounding the ERA stems in large part from the issue of the ratification deadline. Whether or not the amendment can officially become part of the Constitution depends on the validity of the original deadline imposed in 1972 and the three-year extension established in 1977, as well as the present dilemma regarding the legitimacy of Illinois, Nevada, and Virginia's ratification of the ERA after those dates. The U.S. Supreme Court has already ruled on cases involving the issue of constitutional amendment ratification, such as in Dillon v. Gloss and Coleman v. Miller. The resulting precedent, however, does not provide comprehensive and straightforward guidelines for maintaining and respecting deadlines. First of all, the significance of the location of the deadline, whether in the preamble of the amendment resolution or in the amendment itself (a sticking point related to the ERA) remains unclear based on Dillon. Moreover, the ratification of the 27th Amendment in 1992 disregarded the Dillon decision, throwing its authority into question. For its part, Coleman leaves much to congressional discretion and has, to a large extent, superseded the Dillon precedent. Given the shaky ground on which this issue rests and the lack of existing firm legal standards, H.J. Res. 17 should be allowed to stand.
The decision of the Supreme Court in Dillon does not clarify the legitimacy of a ratification deadline based on its placement in an amendment. That is, does it matter if the deadline language is included in the preamble versus the amendment text itself? In 1921, the Supreme Court ruled unanimously that Congress possesses the authority to set a time limit on ratification. [1] The Court, however, failed to offer any conclusion related to the location of the deadline and whether that bears any weight on its authority. [2] Thus, application of the Dillon decision to the ERA does not follow an obvious path. The deadline of the 18th Amendment, under scrutiny in Dillon, was written into the third section of the amendment itself, whereas the ERA’s is located in the preamble, a piece of the text on which states, arguably, do not vote. [3] Granted, Congress incorporated deadlines in the preambles of future amendments, including the 23rd through the 26th, a sort of custom it adopted to condense the actual texts of the amendments. [4] Yet, simply placing it there does not constitute an automatic recognition of the legality of the deadline, as that remains undetermined by the high court. The deadline contained in the preamble of the ERA is not necessarily legally binding, and therefore, cannot impede Congress from removing it now.
Moreover, the time frame specifics, as well as the aftermath of the Dillon decision, should give proponents of the ERA cause for pushing forward with altering the deadline. In writing the majority opinion, Justice Willis Van Devanter asserted that a deadline would help ensure that ratification is “sufficiently contemporaneous.” [5] Although Article V of the Constitution does not explicitly provide a detailed timeframe for ratification, it is reasonable, the justices argued, to include a deadline so as to guarantee that the amendment reflects the modern will and needs of the people. [6] Nonetheless, in 1992, the 27th Amendment was finally added to the Constitution, more that 200 years after James Madison initially proposed it and the first states began ratifying it in 1789. [7] The passage of this amendment, also known as the Madison Amendment, plainly did not observe the Supreme Court’s intention of a reasonable deadline, leaving the question of whether the ERA should be subjected to the same scrutiny. At the time, the Department of Justice defended the validity of the Amendment given that two-thirds of Congress had approved it as well as the necessary thirty-eight states, proclaiming that “[t]here is no requirement of contemporaneous ratification.” [8] Even so, the ERA does not suffer from being “out-of-touch” with the country. A 2020 Pew Research poll found that 78 percent of Americans support adding the ERA to the Constitution. [9] Altogether, the ERA has not become any less popular since its inception, and because it satisfies this issue, the vague advice of the Dillon decision exercises little authority over its own deadline. Not only has its precedent been inconsistently applied, another ruling has superseded Dillon, bestowing much of the prerogative to determine the course of constitutional amendments on Congress.
In 1939, the Supreme Court ruled in Coleman v. Miller that the details of constitutional amendments represent a “political question pertaining to the political departments of the Government.” [10] The Court effectively left the authority over managing amendments to Congress, and in fact, in his concurring opinion, Justice Black expressed that all issues related to Article V should be under the legislative branch’s purview. [11] In the case of the 27th Amendment, those in Congress turned to the Coleman decision to justify their assessment of the timeframe for ratification, asserting that since none had been previously established, Congress could determine whether it was reasonable. [12] Some argue that because the congressional resolution for the 27th Amendment did not include an original deadline, its outcome does not equivocally solve the controversy surrounding the ERA, which did, indeed, contain a time limit. [13] In light of the Coleman decision, however, Congress should still have the right to assess the validity of the deadline as well as whether the ERA is still necessary and suitable today. The ruling in this case has overshadowed the Dillon precedent and largely awarded Congress the power to oversee the course of constitutional amendments. In fact, Congress has already exercised its license to amend deadlines by having extended the ERA’s in 1977. What little precedent exists does not have the strength to stop Congress from doing so again.
By Emma Barbarette, Roundtable Contributor from Columbia University
Section III: Article V and The Power of the Archivist
In addition to potential congressional pathways towards ratification, there has been a modern effort by the states to pursue ratification through the courts. The state attorneys general of Virginia, Illinois and Nevada—the three states to ratify after the 1982 deadline—are currently engaged in a joint legal effort against David S. Ferriero, the Archivist of the United States, as he has refused to formally certify the ERA as part of the Constitution. Article V of the Constitution outlines the process by which the Constitution may be amended via ratification by three-fourths of states. [1] When a state ratifies an amendment, it sends the formal documents to the Archivist of the United States. After the Archivist obtains the documents ratifying an amendment, they send them, or a copy of them, to the Director of the Federal Register. [2] The Office of the Federal Register (OFR) then awaits the adoption or failure of the amendment and finally transfers the records to the National Archives for storage and protection. While a proposed amendment immediately becomes part of the Constitution once three-fourths of states ratify it, the Archivist is responsible for signing a formal proclamation from the National Archives and Records Administration (NARA) that certifies the amendment’s validity and inclusion in the Constitution. The certification signals to Congress, and the rest of the country, the completion of the amendment process. [3] While ceremonial, the ERA’s certification has been met with resistance.
On January 6, 2020, the Department of Justice issued an opinion that ratification of the ERA is not valid after its congressionally imposed deadline, and consequently, Congress must restart the ratification process if it wishes. [4] Two days later, NARA and Ferriero announced they would be deferring the Department of Justice’s opinion and would not move forward with certification, even if thirty-eight states were to ratify the amendment. [5] Virginia ratified it the following week. [6] Commonwealth of Virginia, State of Illinois, and State of Nevada v. David S. Ferriero (2020) was filed on January 30, 2020 in the United States District Court for the District of Columbia. The states argue the deadline on the ERA is not binding because it was not included in the amendment’s original text, as ratified by the states, but rather in the preamble of the resolution passed by Congress. [7] Ferriero has maintained his deference to the Department of Justice, and U.S. District Court Judge Rudolph Contreras ruled in favor of Ferriero this March.
Contreras’ ruling asserted that the states’ ratifications are invalid because the deadline passed long ago. [8] This is a notable departure from the precedent established in Coleman v Miller, which designated the validity of congressional amendment deadlines as a political question. Furthermore, there is a noteworthy second component of Contreras’ ruling. Contreras ruled the Archivist’s certification has “no legal effect… the Amendment becomes law when it secures ratifications from three-fourths of the states—not when the Archivist certifies and publishes it.” [9] Ferriero’s refusal to certify, Contreras argued, has no effect on an amendment’s inclusion in the Constitution, and therefore the states have no legal basis to sue. While this ruling does invalidate Virginia, Illinois and Nevada’s ratifications with the current deadline in place, it also takes a clear stance on the legal insignificance of the Archivist’s certification process, which has important implications for congressional pathways towards ratification.
Indeed, H.J. Res. 17 and S.J. Res. 1 could resolve the first component of Contreras’ ruling. If the deadline is formally removed by Congress, Virginia, Illinois and Nevada’s ratifications would no longer be invalidated. Furthermore, if the Archivist’s certification process has “no legal effect,” congressional removal of the deadline would not only validate the three states’ ratifications, but simultaneously, immediately enter the amendment into the Constitution. Considering the Dillion, Coleman, and Virginia cases, it is clear Congress has the authority to pass a resolution to remove the deadline on the ERA, and this resolution would result in the immediate inclusion of the amendment in the Constitution.
Contrarily, five states— Idaho, Kentucky, Nebraska, Tennessee and South Dakota— have tried to rescind their ratification of the ERA. However, both the final and conclusive nature of NARA’s process and precedent indicate that their rescinding is invalid. [10] These five states, despite attempts to rescind, have still been included in the final count of ratified states. Though, former Governor of Kentucky Thelma Stovall vetoed the resolution to rescind, and it was never overridden in Kentucky’s legislature. These five states are not the first to attempt rescinding their ratification of amendments. During the ratification of the 14th Amendment, both Ohio and New Jersey attempted to rescind their ratifications, as did New York after ratifying the 15th Amendment and Tennessee after ratifying the 19th Amendment. [11]
In each of the cases, the attempted rescindings have not been considered valid and they have all been included in the final count of states that ratified constitutional amendments. Seeing as the Constitution does not directly address a state’s right to rescind its ratification of a constitutional amendment, it appears that the only option is to propose an amendment that would allow for states to do so. Furthermore, if these five states would like to rescind their ratification of the ERA, the easiest way to do so would be to propose an amendment to abolish the ERA. Even if Congress were to successfully remove the deadline, the attempts to rescind would have no legal or constitutional effect on the ERA’s inclusion in the Constitution.
By Aishlinn Kivlighn and Genevieve Cabadas, Roundtable Contributors from Columbia University
Section IV: How Far Does the Amendment’s Language Reach?
The text of the ERA is short and simple: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Yet, ever since Congress first sent the amendment to the states for ratification in the 1970s, Americans have intensely debated the meaning and application of its language. These legal debates have become intertwined with broader cultural fights over gender and sexuality.
In the 1970s, firebrand activist Phyllis Schlafly mobilized conservatives against the amendment, with one of her most prominent arguments being that the amendment’s adoption would legalize same-sex marriage. [1] Though that argument seems strange now that same-sex marriage has been legalized in all fifty states and is supported by most Americans, enabling the legalization of same-sex marriage was a highly controversial charge in the 1970s. The acceptance of same-sex marriage by either of the two major political parties was still more than three decades away. [2] And Schlafly’s argument was not outlandish; some law review articles had already raised the possibility that the ERA’s “on account of sex” language could be so construed. [3] The reasoning was simple: If a man can marry a woman, but a woman cannot marry a woman, doesn’t that discriminate on the basis of sex? However, there were plausible counterarguments. After all, the traditional opposite-sex definition of marriage did not systematically discriminate against either men or women as a class. But nobody knew for certain what the courts might hold, and Schlafly and her allies didn’t want to take any chances.
Same-sex marriage eventually became the law of the land regardless in the Supreme Court ruling Obergefell v. Hodges (2015). [4] Although the issue of same-sex marriage has receded from the center of public discourse, other longtime cultural fights related to gender or sexuality have continued to bear on the public debate over the ERA— and a new controversy over transgender rights has also joined the fray. With heated debates underway about transgender athletes, among other topics, some conservatives claim that the ERA would constitutionally abolish sex-based sporting events, restrooms, and so on. [5] A recent report from the U.S. Conference of Catholic Bishops, citing those potential consequences, warned that the ERA could result in “a radical restructuring of settled societal expectations with respect to sexual differences and privacy.” [6] Many liberals agree that the ERA would have these consequences, and support it for precisely that reason. [7] Conservatives are particularly concerned given that the Supreme Court found in Bostock v. Clayton County (2020) that discrimination based on transgender status can count as sex discrimination in the statutory context of Title VII. [8] Could the justices interpret the ERA similarly?
In contrast to the relatively new battle over transgender rights, reproductive rights have been a longstanding point of conflict, with pro-life groups fearing that liberal courts could construe the ERA to enshrine more expansive abortion rights in the Constitution. [9] This perception is not unfounded: Many pro-choice groups argue that restrictions on abortion are inherently anti-woman, because they operate primarily to the disadvantage of women. [10] NARAL Pro-Choice America wrote on its website that the ERA should be ratified because it “would reinforce the constitutional right to abortion” and “would require judges to strike down anti-abortion laws.” [11] However, the Supreme Court effectively rejected the argument that abortion restrictions constitute sex discrimination in Bray v. Alexandria Women’s Health Clinic (1993), and the bench is more conservative now than it was when it decided that case. [12]
All these different controversies over the ERA’s meaning, however, point to a more fundamental problem: Nobody really knows how the ERA will be interpreted if ratified. The text is an enigma. For starters, consider that the amendment was drafted in the 1970s, but is still being ratified by states today. What the language of the ERA was understood to achieve four decades ago might be different from what it means now. If so, which meaning controls? Indeed, the ERA was “initially proposed to alter a legal environment that has not existed for decades in the United States.” [13] As legal scholar Catharine MacKinnon has written, “Most of the issues that were the focus of the last ERA debate in the 1960s and 1970s have been largely addressed, in some cases solved, under the 14th Amendment, by executive or legislative action, or through social change.” [14] Meanwhile, issues that were barely discussed a half-century ago, like transgender rights, have arisen in public discourse.
Because textualism requires consideration of the original understanding of the meaning of a provision’s words, those who adhere to a textualist school of legal interpretation must decide whether that original meaning is the meaning in the 1970s when many states ratified the amendment, or now, when it might finally become part of the Constitution. [15] Perhaps the meaning has remained identical, but if not, that poses serious interpretive difficulties. [16] As Columbia Law Professor David Pozen wrote recently, “We have had an extraordinarily prolonged, polycentric, and dynamic ratification drama that confounds any effort to discern a unitary meaning of that text throughout the course of its adoption.” [17] The ERA might cause sweeping change in numerous areas of the law, fulfilling conservatives’ fears that “the ERA is a cypher that effectively delegates to federal judges the authority to make up and enforce whatever rule they want in the name of gender equality.” [18] On the other hand, the ERA might prove to be a largely symbolic reaffirmation of the Supreme Court’s existing 14th Amendment sex discrimination case law.
Since 1971, the Supreme Court has applied rigorous or heightened scrutiny under the 14th Amendment to sex-based classifications. [19] So if the ERA requires heightened scrutiny to be applied to sex-based classifications, the ERA is merely symbolic. On the other hand, if the ERA goes beyond existing case law and requires strict scrutiny, sex-based classifications would be held to the same standard as racial ones—an outcome in stark conflict with recent American tradition (segregating bathrooms based on sex or gender is understood as quite different from segregating bathrooms based on race). [20] Constitutional Law Professor Michael Dorf of Cornell University takes the former position, arguing that the ERA likely “will have no practical effect.” In his view, “nothing in … the ERA necessarily adds” to existing Supreme Court doctrine, which already treats “sex discrimination by the states as presumptively in violation of the 14th Amendment’s Equal Protection Clause and sex discrimination by the federal government as presumptively in violation of the equal protection component of the 5th Amendment’s Due Process Clause.” [21]
It remains far from clear whether the ERA could still be lawfully ratified today, [22] or whether, as the late Justice Ginsburg appeared to believe, the process would need to start “over again.” [23] Particularly if the ratification process must restart, it would be prudent to add a clause to the ERA stating explicitly that it shall not be construed to affect existing law regarding reproductive rights. Better yet, a new amendment could be drafted from scratch. If the ERA’s proponents retain its open-ended language that scholars disagree on how to interpret, they should not be surprised if the ERA continues to face resistance and controversy.
By Will Foster, Roundtable Contributor from Columbia University
This Roundtable was edited by Crystal Foretia
Sources for Section 1:
[1] Katherine Tully-McManus, House Votes to Nix Deadline for Equal Rights Amendment Ratification, Roll Call (March 17, 2021), online at https://www.rollcall.com/2021/03/17/house-votes-to-nix-deadline-for-equal-rights-amendment-ratification/ (visited April 11, 2021).
[2] Timothy Williams, Virginia Approves the E.R.A., Becoming the 38th State to Back It, New York Times (January 15 2021), online at https://www.nytimes.com/2020/01/15/us/era-virginia-vote.html (visited April 7, 2021).
[3] Alice Paul Institute, History of the Equal Rights Amendment. Equal Rights Amendment, online https://www.equalrightsamendment.org/the-equal-rights-amendment (visited April 10, 2021).
[4] id
[5] David E. Kyvig, “Historical Misunderstandings and the Defeat of the Equal Rights Amendment”, The Public Historian 18, no.1 (1996): 45-63.
[6] Juliana Menasce Horowitz, Ruth Igielnik, A Century After Women Gained the Right To Vote, Majority of Americans See Work To Do on Gender Equality, Pew Research Center (2020), online at https://www.pewresearch.org/social-trends/2020/07/07/a-century-after-women-gained-the-right-to-vote-majority-of-americans-see-work-to-do-on-gender-equality/, (visited March 26, 2021).
[7] David E. Kyvig, “Historical Misunderstandings and the Defeat of the Equal Rights Amendment,” The Public Historian 18, no.1 (1996): 45-63.
[8] Leser v. Garnett, 258 U.S. 130 (1922).
[9] Coleman v. Miller, 307 U.S. 433 (1939).
[10] Dillon v. Gloss, 256 U.S. 368 (1921).
[11] id
[12] Baltimore Sun Editorial Board, E.R.A. Ratification: Likely Dead on Arrival, Baltimore Sun (February 13, 2021), online at https://www.baltimoresun.com/opinion/editorial/bs-ed-0216-era-ratification-20200213-kzp6yfftunbxrai42wdykwdt5i-story.html (visited August 3, 2021).
Sources for Section 2:
[1] John R. Vile, Dillon v. Gloss, Oxford Reference, online at https://www.oxfordreference.com/view/10.1093/oi/authority.20110803095718865 (visited March 25, 2021).
[2] id
[3] ERA Project: Resources and FAQ, Columbia Law School Center for Gender & Sexuality Law, online at https://gender-sexuality.law.columbia.edu/content/resources-faq, (visited March 25, 2021).
[4] id
[5] Dillon v. Gloss, Deputy Collector., 256 U.S. 368 (1921).
[6] id
[7] Richard L. Berke, CONGRESS BACKS 27TH AMENDMENT, The New York Times (1992), online at https://www.nytimes.com/1992/05/21/us/congress-backs-27th-amendment.html, (visited March 26, 2021).
[8] Allison L. Held, Sheryl L. Herndon, Danielle M. Stager, “The Equal Rights Amendment: Why the Era Remains Legally Viable and Properly Before the States,” 3 William & Mary Journal of Women and the Law, 121-122 (1997).
[9] Juliana Menasce Horowitz, Ruth Igielnik, A Century After Women Gained the Right To Vote, Majority of Americans See Work To Do on Gender Equality, Pew Research Center (2020), online at https://www.pewresearch.org/social-trends/2020/07/07/a-century-after-women-gained-the-right-to-vote-majority-of-americans-see-work-to-do-on-gender-equality/, (visited March 26, 2021).
[10] Coleman et al. v. Miller, Secretary of the Senate of the State of Kansas, et al., 307 U.S. 433 (1939).
[11] id
[12] Allison L. Held, Sheryl L. Herndon, Danielle M. Stager, “The Equal Rights Amendment: Why the Era Remains Legally Viable and Properly Before the States,” 3 William & Mary Journal of Women and the Law, 122 (1997).
[13] ERA Project: Resources and FAQ, Columbia Law School Center for Gender & Sexuality Law, online at https://gender-sexuality.law.columbia.edu/content/resources-faq, (visited March 26, 2021).
Sources for Section 3:
[1] U.S. Const. amend. V.
[2] id
[3] Constitutional Amendment Process, The U.S. National Archives and Records Administration (2016), online at https://www.archives.gov/federal-register/constitution (visited April 7, 2021).
[4] Ratification of the Equal Rights Amendment, The United States Department of Justice Office of Legal Counsel (2020), online at https://www.justice.gov/olc/file/1232501/download (visited April 7, 2021).
[5] NARA Press Statement on the Equal Rights Amendment, The U.S. National Archives and Records Administration (2020), online at https://www.archives.gov/press/press-releases-4 (visited April 7, 2021).
[6] Bill Chappell, Virginia Ratifies the Equal Rights Amendment, Decades after the Deadline, National Public Radio (2020), online at https://www.npr.org/2020/01/15/796754345/virginia-ratifies-the-equal-rights-amendment-decades-after-deadline (visited April 7, 2021).
[7] Commonwealth of Virginia v. Ferriero (1:20-cv-00242), Court Listener (January 30, 2020) online at https://www.courtlistener.com/docket/16779822/commonwealth-of-virginia-v-ferriero/ (visited April 7, 2021).
[8] Michelle L. Price, Judge Dismisses Lawsuit by Democratic AGs to Recognize ERA, Associated Press (2021), online at https://apnews.com/article/constitutions-lawsuits-virginia-constitutional-amendments-united-states-b1211f0c6643e41a42d44970a114e6c4 (visited April 7, 2021).
[9] ERA Project FAQ on the District Court's Decision in Virginia v. Ferriero, Columbia Law School Center for Gender & Sexuality Law (2021), online at https://gender-sexuality.law.columbia.edu/sites/default/files/content/FAQ%20on%20court%20dismissal%20of%20Virginia%20v%20Ferriero.pdf (visited April 7, 2021).
[10] Roberta W. Francis, Frequently Asked Questions, ERA (2018), online at https://www.equalrightsamendment.org/faq (visited August 3, 2021).
[11] FAQ on the Current Status of the Equal Rights Amendment to the U.S. Constitution, Columbia Law School Center for Gender & Sexuality Law Resources and FAQ (2021), online at https://gender-sexuality.law.columbia.edu/sites/default/files/content/FAQ%20on%20court%20dismissal%20of%20Virginia%20v%20Ferriero.pdf (visited April 9, 2021).
Sources for Section 4:
[1] Phyllis Schlafly, ERA and Homosexual “Marriages,” The Phyllis Schlafly Report (September 1974), online at https://eagleforum.org/wp-content/uploads/2017/03/PSR-Sept1974.pdf (visited August 3, 2021).
[2] David Stout, Bush Backs Ban in Constitution on Gay Marriage, New York Times (February 24, 2004), online at https://www.nytimes.com/2004/02/24/politics/bush-backs-ban-in-constitution-on-gay-marriage.html (visited April 30, 2021); Mark Z. Barabak, Kerry Backs Missouri Ban on Gay Marriage, Los Angeles Times (August 7, 2004), online at https://www.latimes.com/archives/la-xpm-2004-aug-07-na-gay7-story.html (visited April 30, 2021); Hunter Schwarz, Obama and Clinton Love To Celebrate Gay Marriage Now. Here’s How Late They Were to the Party, Washington Post (June 26, 2015), online at https://www.washingtonpost.com/news/the-fix/wp/2015/06/26/obama-and-clinton-love-to-celebrate-gay-marriage-now-heres-how-late-they-were-to-the-party/ (visited April 30, 2021).
[3] “The Legality of Homosexual Marriage,” 82 Yale Law Journal, 573, 583–584 (1973); Paul A. Freund, “The Equal Rights Amendment Is Not the Way,” 6 Harvard Civil Rights-Civil Liberties Law Review, 234 (1971); William N. Eskridge Jr., “Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections,” 127 Yale Law Journal, 322, 350 (2017).
[4] Obergefell v. Hodges, 576 U.S. 644 (2015).
[5] Mike Zapler, Eli Okun & Garrett Ross, POLITICO Playbook PM: Trump Position Against Transgender Athletes Draws Broad Support, Politico (March 10, 2021), online at https://politi.co/3vflAoe (visited April 10, 2021).
[6] Secretariat of Pro-Life Activities, The Equal Rights Amendment (ERA), United States Conference of Catholic Bishops (March 12, 2021), online at https://www.usccb.org/resources/2021.ERA%20Factsheet%20final.pdf (visited April 10, 2021); Family Research Council, Family Research Council Opposes the “Equal Rights Amendment,” Family Research Council (January 10, 2019), online at https://www.frcblog.com/2019/01/family-research-council-opposes-equal-rights-amendment/ (visited April 10, 2021).
[7] Bonnie Grabenhofer & Jan Erickson, Is the Equal Rights Amendment Relevant in the 21st Century?, National Organization for Women, online at https://now.org/resource/is-the-equal-rights-amendment-relevant-in-the-21st-century/ (visited April 10, 2021).
[8] Bostock v. Clayton County, 590 U.S. ___ (2020) (employing textualist analysis to find LGBT rights protections).
[9] Eleanor Mueller & Alice Miranda Ollstein, How the Debate Over the ERA Became a Fight Over Abortion, Politico (February 11, 2020), online at https://www.politico.com/news/2020/02/11/abortion-equal-rights-amendment-113505 (visited April 10, 2021).
[10] Robin Bleiweis, The Equal Rights Amendment: What You Need To Know, Center for American Progress (January 29, 2020), online at https://www.americanprogress.org/issues/women/reports/2020/01/29/479917/equal-rights-amendment-need-know/ (visited April 10, 2021); New Mexico Right to Choose/NARAL v. Johnson, 975 P.2d 841 (N.M. 1998), cert. denied sub nom., 526 U.S. 1020 (1999).
[11] Alexandra DeSanctis, Would the Equal Rights Amendment Enshrine Abortion Rights in the Constitution?, National Review (Feb. 17, 2020), online at https://www.nationalreview.com/2020/02/would-the-equal-rights-amendment-enshrine-abortion-rights-in-the-constitution/ (visited April 10, 2021).
[12] Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 269-274 (1993).
[13] Keith E. Whittington, ERA Now?, The Volokh Conspiracy (Jan. 15, 2020), online at https://reason.com/volokh/2020/01/15/era-now/ (visited April 10, 2021).
[14] Catharine A. MacKinnon, “Toward a Renewed Equal Rights Amendment: Now More than Ever,” 37 Harvard Journal of Law & Gender 569 (2014).
[15] Perrin v. United States, 444 U.S. 37, 42 (1979).
[16] Keith E. Whittington, ERA Now?, The Volokh Conspiracy (Jan. 15, 2020), online at https://reason.com/volokh/2020/01/15/era-now/ (visited April 10, 2021).
[17] David Pozen, E.R.A. Puzzles, Balkinization (Feb. 27, 2020), online at https://balkin.blogspot.com/2020/02/era-puzzles_27.html (visited April 10, 2021).
[18] Keith E. Whittington, ERA Now?, The Volokh Conspiracy (Jan. 15, 2020), online at https://reason.com/volokh/2020/01/15/era-now/ (visited April 10, 2021).
[19] United States v. Virginia, 518 U.S. 515, 531–533 (1996); J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127, 136–137 (1994); Craig v. Boren, 429 U.S. 190, 197–199 (1976); Frontiero v. Richardson, 411 U.S. 677, 682–684 (1973) (plurality opinion); Reed v. Reed, 404 U.S. 71, 75–77 (1971).
[20] United States v. Virginia, 518 U.S. 515, 533 (1996) (“Supposed ‘inherent differences’ are no longer accepted as a ground for race or national origin classifications … Physical differences between men and women, however, are enduring”).
[21] Michael Dorf, Does it Matter Whether the ERA is Part of the Constitution?, Dorf on Law (Jan. 21, 2020), online at http://www.dorfonlaw.org/2020/01/does-it-matter-whether-era-is-part-of.html (visited April 30, 2021).
[22] Cardin, Murkowski, Speier, Reed Announce Bipartisan Resolution to Affirm Ratification of the Equal Rights Amendment, U.S. Senator Lisa Murkowski of Alaska (Jan. 22, 2021), online at https://www.murkowski.senate.gov/press/release/cardin-murkowski-speier-reed-announce-bipartisan-resolution-to-affirm-ratification-of-the-equal-rights-amendment- (visited April 10, 2021).
[23] Remarks of Justice Ruth Bader Ginsburg, Georgetown University Law Center (September 12, 2019); Steven A. Engel, Ratification of the Equal Rights Amendment, Opinions of the Office of Legal Counsel in Volume 44 (2020), online at https://www.justice.gov/olc/file/1232501/download (visited August 3, 2021); Virginia v. Ferriero, Civil Action No.: 20-242 (RC) (D.D.C. Mar. 5, 2021), online at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2020cv0242-117.