American Bar Association Embraces Wildly Unsound Position on Equal Rights Amendment Ratification

In yet another act of collective idiocy, the American Bar Association on Tuesday adopted a resolution that maintains that the Equal Rights Amendment proposed by Congress in 1972 has been ratified and become part of the Constitution. The ABA’s position is wildly unsound. It’s sheer politics, not law.

Very briefly:

• When Congress in 1972 proposed the ERA to the states for ratification, it specified a seven-year period for ratification. That seven-year period expired on March 22, 1979. As of that date, only 35 states had ratified the ERA (and four or five of those 35 had rescinded their ratifications).
• In October 1978, before the original deadline passed, Congress purported to extend the deadline until June 30, 1982. It did so by majority vote of each House, not by the 2/3 vote needed for proposing amendments. No additional states acted to ratify the ERA within that extended deadline.
• In 1981, a federal district court ruled that Congress could not lawfully extend the ratification deadline. On review in the Supreme Court afterthe extended deadline of June 30, 1982, had passed, the Solicitor General’s Office advised the Court that the states’ failure to ratify the ERA by the extended deadline rendered the matter moot. In October 1982, the Court entered an order dismissing the case as moot. That dismissal clearly signals the Court’s judgment that ratification of the ERA had failed.
• Even supporters of the ERA recognized that they needed to start over after the 1982 deadline passed. That’s why they attempted to have Congress re-propose the ERA. But the effort failed in the House, falling six shorts vote of the two-thirds needed.

In recent years, there has been an attempt to pretend that the ratification period somehow remains open and that recent state ratifications have dragged the zombie ERA past the required three-quarters threshold. That attempt has been widely refuted. For example:

• In February 2020, Ruth Bader Ginsburg, a leading proponent of the ERA, declared the plain reality that Virginia’s purported ratification of the ERA the previous month came “long after the deadline passed.” She similarly stated in September 2019 that she hoped that Congress would “some day” again propose an Equal Rights Amendment (“put [it] back in the political hopper”) and that, if it did, “we’ll be starting all over again collecting the necessary states to ratify it.”
• In January 2020, the Office of Legal Counsel in the Department of Justice issued a lengthy opinion that “conclude[s] that the [1972] ERA Resolution has expired and is no longer pending before the States.” Thus:

Even if one or more state legislatures were to ratify the 1972 proposal, that action would not complete the ratification of the amendment, and the ERA’s adoption could not be certified under 1 U.S.C. § 106b. In addition, we conclude that when Congress uses a proposing clause to impose a deadline on the States’ ratification of a proposed constitutional amendment, that deadline is binding and Congress may not revive the proposal after the deadline’s expiration. Accordingly, should Congress now “deem [the ERA] necessary,” U.S. Const. art. V, the only constitutional path for amendment would be for two-thirds of both Houses (or a convention sought by two-thirds of the state legislatures) to propose the amendment once more and restart the ratification process among the States, consistent with Article V of the Constitution.

• Urged to revisit that conclusion, the Office of Legal Counsel in the Biden administration instead declined to revise or withdraw OLC’s bottom-line conclusion in 2020 (and instead threw zombie-ERA advocates the bone of stating that some issues addressed in the 2020 opinion “were closer and more difficult than the opinion suggested”).
• In March 2021, in a case brought by three states seeking certification of the ERA as part of the Constitution, a federal district judge appointed by Barack Obama ruled that the deadline for ratifying the ERA expired decades ago. In February 2023, a unanimous D.C. Circuit panel, in an opinion by another Obama appointee, “affirm[ed] the District Court’s dismissal” (on the ground that the states’ claim wasn’t even a matter within the court’s jurisdiction). In the course of doing so, the D.C. Circuit archly observed that the states’ position that a ratification deadline is inoperative if Congress places it in the proposing clause of an amendment would mean that Congress’s “specification of the mode of ratification in every amendment in our nation’s history would also be inoperative.”

I’d bet that very few if any of the several hundred members of the ABA’s House of Delegates who voted to adopt the ABA resolution know any of this.