Get Ready — The ERA May Be Down, But It’s Not Out

Are Catholics being asked to buy another cat in a bag?

Pro-Equal Rights Amendment demonstrators march in the annual “LGBTQI Pride Parade” on June 25, 2017 in San Francisco, California.
Pro-Equal Rights Amendment demonstrators march in the annual “LGBTQI Pride Parade” on June 25, 2017 in San Francisco, California. (photo: Photo by Elijah Nouvelage/Getty Images)

The Virginia General Assembly’s adjournment this year, without having approved the Equal Rights Amendment (ERA), gives Catholics a breather to flesh out, for themselves and others, the implications of this proposal.

The whole process of “ratification” was something of a red herring, anyway. Congress sent ERA to the states in 1972, having included a seven-year limit for ratification in the joint resolution proposing it. That deadline expired March 22, 1979. The ERA has been dead 40 years.

That didn’t stop its proponents, back then or now. In 1979, with ratification at a halt and four previously ratifying states rescinding, Congress tried to put ERA on artificial life support. It extended the time limit for approval by three and a half years. Despite extraordinary means to preserve its life (or, rather, keep the constitutional corpse on a ventilator), ERA did not win ratification by a single additional state. Indeed, another previous ratification was rescinded.

I say the extension was more ventilating a corpse, because there is good reason to argue that Congress could not have changed the original deadline (can one side rewrite a contract without the other’s approval?), particularly by only a majority vote (constitutional amendments require two-thirds votes). The Supreme Court never addressed the question because the case was moot; with no additional approvals, a growing list of rescissions, and the second deadline past, ERA was—to borrow Dickens’ phrase—“dead as a doornail.”

But the Zombie Amendment keeps coming back.

In 2017, ERA proponents launched an effort to “ratify” ERA, getting two more states to approve the amendment which, on its own terms, had expired. That effort was built on several dubious assumptions:

  • deadlines, especially if not in the very text of the amendment itself, are only “political,” not “legal” commitments
  • the 27th Amendment (which was not time limited) showed ratification could last 200+ years;
  • a state cannot rescind approval of an amendment, even before the ratification process is complete; and
  • “throw it on the wall and see if it sticks” – who knows, let’s try and see if we can find some judge to say “all will be well.”

It may be a nice way of advancing political goals, but does it honor rule of law and the respect we should give the Constitution?

I note these points because there is a case to be made against this ERA, even if one supports the underlying amendment. I would argue that intellectually honest people should admit that the 1972 ERA died long ago and, if they continue to think the Constitution should be amended in this respect, start the process anew. The unwillingness to do that, the effort to force a constitutional amendment through as a “political” project rather than what it is—a matter of the rule of law—ought to raise basic bipartisan questions.

But that’s not why I think Catholics dodged a bullet when Virginia failed to “become the 38th state to put ERA over the top.”

The effect of ERA on two areas of key concern to Catholics—the right to life and the meaning of “sex”—is at minimum ambiguous. That’s putting it charitably. I don’t think it’s ambiguous at all. I think its advocates’ intent is pretty clear, but they won’t discuss it. They want Americans to buy a constitutional cat in a bag.

But first – why deadlines are relevant to this debate.

Congress didn’t always put time limits on approving constitutional amendments. That practice dates back a century, starting in 1918. Every amendment proposed since 1918 (except the 19th Amendment) contained that seven-year cap.

The Supreme Court has twice addressed whether such caps are constitutional, and has twice said yes. I would argue that the Court’s logic is one of “contemporaneity.” It goes like this:

Amending the Constitution is not like amending any other law. Amending the Constitution means readjusting the fundamental focus and orientation of our basic law. Doing something that daring should occur only when there is an overwhelming consensus at a given moment in history. The Constitution already sets up that basic expectation: passing a constitutional amendment requires supermajorities in both houses of Congress and approvals by legislatures (i.e., currently at least 75 out of 99 legislative chambers) in a supermajority of states. That kind of political consensus for such basic change should be overwhelming and it should occur at a fixed moment in history. That’s why—with the exception of the aberration that is the 27th Amendment—it never took more than three and a half years for any amendment to be approved.

So profound a consensus means that we, as a people, had a common agreement on some common goal at a given moment of history. I would argue that is lacking in ERA, especially when it comes to the right to life and to the meaning of “sex.” And that’s important for Catholics.

When ERA was passed in 1972, states still had power to limit abortion. Let’s not forget that, while Andrew Cuomo hawks New York as a “leader” in abortion, New York’s Legislature repealed that state’s liberal abortion law in 1972, only to be frustrated by Governor Nelson Rockefeller’s veto. In November 1972, popular referenda in Michigan and North Dakota retained those states’ protections of unborn life. So, just before Roe v. Wade, the political debate over abortion was, at minimum, in flux and arguably turning against abortion advocates. Roe completely short-circuited that democratic process by creating an unrestricted abortion liberty.

Does ERA have any implications for abortion? It’s unclear whether those who voted for it 47 years ago thought it did. I would argue most legislators didn’t think so; I cannot imagine that ERA would have passed the House—in the 1970s a very pro-life chamber—by an overwhelming 354-24 if Representatives thought they were creating a federal abortion right before Roe v. Wade was handed down. Likewise, while the U.S. Senate was the challenge for pro-lifers in the 1970s, the lopsided 84-8 vote for the amendment there would not have happened if senators thought they were legalizing abortion.

It’s a telling fact that, while ERA came out of the Congressional gate with a bang (seven states—including reliably pro-life states like Kansas and Nebraska—ratified it within a week of final Senate approval), ERA ratification went off the rails, never to recover, within two months after Roe was handed down. It was precisely at that time that people began asking how ERA would affect abortion.

ERA advocates have always played a two-pronged strategy on that question. They often deny that ERA has anything to do with abortion (especially when they are trying to advance the amendment). But, when pressed if they would agree to language in the amendment explicitly stating ERA has nothing to do with abortion, they refuse. And they have not disavowed the efforts of abortion proponents who have used ERAs in state constitutions to protect “abortion rights” or compel taxpayer funding of abortion.

Pro-abortionists have often maintained that legalized abortion is “essential” to “women’s equality.” Planned Parenthood v. Casey asserts that “[a]n entire generation has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society and to make reproductive decisions” (505 U.S. 833 at 860, emphasis added). The italicized text certainly sounds like the kind of sex-based distinction that section 1 of ERA would presumably “protect.” Absent explicit text declaring ERA abortion-neutral, it would be highly implausible to think an absolute abortion liberty would not be grafted into the amendment, notwithstanding the fact that there is little legislative history to suggest the 92nd Congress intended that. But it would be a blessing for Roe’s proponents. In their search for a constitutional home for the “right of privacy” guaranteeing abortion, the Court has acted somewhat like the old Prego spaghetti sauce commercial—it’s in there”—never specifying whether “there” is. Various judges have opined “there” is the 9th, 10th or Amendments or gaseous “penumbrae” emanating somewhere from the Bill of Rights. ERA would finally give this wandering “right” a locus, even though many of the people who voted for it may never have thought they were doing that.

So, while ERA proponents will at best admit under their breath that the amendment would ensconce abortion in the Constitution, admitting that goal publicly in the ratification debates (including, most recently, in Virginia) has not been prominent.

Up until now, pro-lifers have been able to contend that Roe stands on what Justice Byron White called “raw judicial power” with a tenuous constitutional anchor. ERA could conceivably provide that anchor.

I think Catholics dodged a bullet on ERA in another respect, too. The amendment prohibits denial or abridgement of “equality of rights … on account of sex.”     

What does “sex” mean? I’d argue it means something different in 2019 (when Virginia was asked to “ratify” this amendment) from what it did in 1972 (when the amendment was written). And that distinction is crucial.

Back in 1972, “sex” meant male and female. Two sexes. The “gender binary.”

Today, “sex” is much more ambiguous. Some would “reduce” it to “biology,” i.e., biologically one is (is that the “right” verb?) “male” or “female.” But then advocates of “gender” theory assert that “gender”—one’s mental self-identification—is “larger” than “sex,” so that we can have 50 shades of gender. “Sex” is one thing, “gender” another.

Except when they aren’t.

If “sex” is one thing but “gender” another, it’s hard to argue that laws passed against “sex” discrimination (like Title IX, passed by the same Congress as ERA) were ever intended to apply to “gender discrimination,” especially since Congress never explicitly extended the former to the latter.

The Obama administration chose to extend their scope absent any congressional authority by rewriting “sex” to mean “gender” when the administration chose to conflate their meanings, e.g., its “Dear Colleague” letter mandating schools to let boys into girls’ locker rooms and showers. Such legal creep is not just limited to federal regulations. In late February, the Missouri Supreme Court decided, in R.M.A. v. Blue Springs R-IV School District et al., that the state’s Human Rights Act, which forbids “sex” discrimination but was never extended to (indeed, the Legislature has explicitly rejected) “sexual orientation,” nevertheless applies to the latter. How did the Court reach that conclusion in opposition to what the legislature legislated? Because the plaintiff said what his “legal sex” was and the Court took that self-definition prima facie.

I raise these points to suggest that the meaning of “sex” in section one of ERA is ambiguous. It means something very different—at least in some circles today—from what it did to the Congress that passed it and at least about 30 states that signed on to it with another understanding.

So what is the “intent” of the ERA? Is this one of those laws you “just have to pass to find out?” Is that a responsible posture for amending the Constitution? Are Catholics being asked to buy another cat in a bag? Are the courts to be a permanent standing constitutional convention, divining what “sex” may mean in the light of the latest elite theory? Is it time to “out” what ERA means?

All opinions expressed herein are exclusively the author’s.