ERA process a legal hornets’ nest

The discussion about the Equal Rights Amendment seems to assume that if Arizona were to ratify the measure, that would be it. It would be in the Constitution.

That’s far from the case. Instead, ratification by Arizona, or any other state purporting to be the 38th state to do so, would be taking a baseball bat and whacking a legal hornets’ nest.

Article V of the Constitution says that amendments can be referred to the states with the approval of two-thirds of both chambers of Congress. They take effect if ratified by three-fourths of the states, either by a vote of their state legislatures or state conventions called for that purpose.

Clearly the intent was that there be a wide consensus about the desirability of an amendment at the time of adoption.

Congress approved the ERA for submission to the states in 1972. As was customary in the 20th century, Congress set a deadline for ratification, of seven years. As that deadline approached in 1979, Congress voted to extend it by three years, to 1982.

However, the extension fell short of receiving a two-thirds approval in Congress. So, there was a legal question as to whether the extension was constitutional.

Meanwhile, five states rescinded their ratification of the ERA. There was a legal question as to whether they could do that.

The constitutionality of the deadline extension and the ability of states to change their minds were before the U.S. Supreme Court when the 1982 deadline came and went. Since the amendment fell short of the necessary three-fourths of the states even counting the rescission states, the court declared the legal questions moot.

The belief that Arizona can still be the state that puts the ERA into the Constitution rests on the following arguments and assumptions:

First, that the five states that changed their minds still count as having ratified the amendment.

Second, that Congress can pass a law saying: You know that deadline for ratification? Never mind. We lift the deadline and every state that ever voted to ratify now counts as having ratified. So, the ERA is in the Constitution.

There is likely to be a third assumption. Unless things change, Congress probably would not vaporize the deadline by a two-thirds vote. So, the legal argument would have to be made that Congress could do so with a simple majority.

The consensus envisioned by Article V would not have been achieved. There would not be a contemporaneous agreement by two-thirds of Congress and three-quarters of the states that the amendment was desirable.

Given how contentious the ERA remains, a legal challenge would be inevitable. A court, presumably the U.S. Supreme Court, would have to decide whether Congress could vaporize the deadline and probably whether it could do so without a two-thirds vote. And whether, during the ratification process, a state can change its mind before the process is concluded.

The four liberals on the current court could be counted on to engage in the logical gymnastics necessary to find that the ERA had cleared the Article V hurdles. The four conservatives would be likely to view those claims more skeptically. And who knows what the court’s Hamlet, Chief Justice John Roberts, would do.

But by the time this case made its way to the U.S. Supreme Court, there might be new justices sitting there, making the outcome even more of a crapshoot.

The ERA itself is highly unlikely to be as consequential as either advocates or opponents claim. It doesn’t really do much that the 14th Amendment’s equal protection clause doesn’t already do.

In Arizona, the main argument of proponents seems to be a dubious claim about wage differentials based on sex. But nothing in the ERA would compel any action by any government to meddle with wage determinations made by private businesses. It wouldn’t change existing legislative authority in that regard.

And the argument by opponents that passage would further restrict the ability to pass laws regulating abortions seems far-fetched. The court has already concocted penumbras formed by emanations to do that.

I understand the strongly felt desire to see sexual equality affirmed in the Constitution.

But attempting to ratify the ERA in this way could do more damage to the constitutional order than it achieves practical gains for sexual equality.