The Equal Rights Amendment (ERA) is a proposed amendment to the U.S. Constitution that would ban discrimination on the basis of sex and constitutionally guarantee equal legal rights to all citizens. From its first introduction in 1923, the amendment has been sponsored several hundred times.

The ERA proposed by Congress has three sections. Section 1 says simply that "equality of rights under the Law shall not be denied or abridged by the United States or by any State on account of sex." The second section gives Congress power to enforce the amendment, and the third provides for a transitional period of two years after its ratification. Alice Paul, the original sponsor of the ERA, worded the second section of the amendment to share enforcement power between the states and federal government. A number of versions of the amendment were introduced before Congress finally settled on one. The first time the amendment was actually voted on by Congress was in 1946, when it received a 38–35 vote in the Senate.

Concerns and Opposition

Differences in wording and proposed alterations illustrate some of the tensions that surrounded the ERA debate. When it was initially proposed, the National Woman's Party, a militant wing of the forces that had pushed for the Nineteenth Amendment, was one of the few organizations that actively supported the amendment. More moderate organizations, such as the League of Women Voters, opposed it. They had been working for such protective legislation as minimum wage and maximum hour legislation for women and feared that an equal rights amendment might be used to undermine such gains. Over time, many more groups joined the cause, but differences in emphasis remained, as did ambiguity about precisely what results the amendment would have.

In 1972, the House again adopted the amendment, this time by a 354–24 vote, and the Senate followed suit by a vote of 84–8. With a two-thirds majority in both houses of Congress, the ERA was finally sent to the states for consideration. Once proposed, the ERA was initially received quite positively: 21 of 32 legislatures in session ratified with hardly any delays. In time, 35 of the needed 38 states would ratify, but by then, the anti-ERA forces had effectively mobilized, and some states that had given their approval attempted to rescind their ratifications. Conservative Phyllis Schlafly, founder of the Eagle Forum, appears to have been particularly successful with her Committee to Stop ERA.

Political and Social Concerns over ERA Passage

Scholars still debate why the ERA failed. In part, its failure may have to do with disagreements about what the amendment would do. Some thought it would require women to be included in a military draft. Others thought that it would affect family law and possibly invalidate statutory rape laws.

Others said that it might mandate unisex bathroom facilities or same-sex marriages. Although the recognition of a right to privacy made these possibilities unlikely, opponents were able to raise enough doubts to block the amendment in at least 13 states.

Role of the U.S. Supreme Court

Ironically, progressive judicial decisions that advanced women's rights may have undercut support for the ERA. In the 19th century, the U.S. Supreme Court had been unsympathetic to women's rights. For example, in Bradwell v. Illinois (1873), it upheld an Illinois law barring women from practicing law. In Minor v. Happersett (1875), it upheld women's exclusion from the right to vote. As late as Goesaert v. Cleary (1948), in which women were banned from being licensed as bartenders in cities with populations larger than 50,000 people, the Supreme Court upheld paternalistic laws restricting women. Paternalistic laws were laws that restricted women's rights under the guise that those laws were "for their own good."

Around the time that Congress proposed the ERA, however, the Court began to use the equal protection clause of the Fourteenth Amendment to liberalize women's rights. In Reed v. Reed (1971), for example, a unanimous Court held that a state could not select the administrator of an estate on the basis that one candidate was a man and the other a woman. In Frontiero v. Richardson (1973), the Court struck down a military law that assumed that soldiers' wives depended on their husbands, and so those wives were automatically entitled to extra monetary allowances, but made enlisted women prove that their husbands were dependent on them. In the same year as Frontiero, the Court declared in Roe v. Wade (1973) that the right of privacy gave women the right to seek abortions.

These decisions that advanced women's rights allowed opponents of the ERA to argue that the ERA was no longer needed. At the same time, the Supreme Court's abortion decision gave ERA opponents the opportunity to argue that courts might expand interpretations of the Fourteenth Amendment that would cause big, unforeseen changes to society. It has been argued that a key reason the ERA failed to get enough support in 1983 came from fears that it might require states to fund abortions. For their part, ERA supporters may have played into the hands of such critics by suggesting, in their attempts to get the ERA adopted, that the amendment would bring about greater changes than it actually would have.

Ongoing Controversy

When Congress approved it, the ERA contained a seven-year deadline. In order for it to become law, at least 38 states had to ratify the amendment by the deadline. As the deadline approached, proponents asked for more time, and in 1978, Congress extended the deadline for another three years.

Lower courts have ruled that the amending process of the ERA are political issues rather than judicial ones. In Dyer v. Blair (1975), Judge John Paul Stevens ruled that the Illinois state legislature had the power to decide that a three-fifths vote was required for ratification of the amendment. In Idaho v. Freeman (1981), Judge Marion Callister decided that Idaho had a right to rescind ratification of the ERA, that Congress had no power to extend the ERA deadline, and that, in any case, such a vote would have required a two-thirds majority.

Although it was appealed to the Supreme Court, this case became irrelevant when the ERA failed to be ratified within the extension that Congress had granted. In 1995, perhaps heartened by the belated ratification of the Twenty-seventh Amendment, a number of representatives introduced a resolution requiring that the House of Representatives verify ratification of the Equal Rights Amendment if and when it received an additional three ratifications from the states.

The 2016 presidential election and the #MeToo Movement brought the ERA back into the spotlight. In 2017, Nevada ratified the amendment and Illinois followed in 2018. After a November 2019 election win for Democrats in Virginia, that state became the 38th state to ratify the amendment, the number needed to add the amendment to the Constitution. Opponents, however, say it came too late—that the deadline for ratification had passed. Supporters question the constitutionality of time limits for amendments, though. In addition, six states that have ratified the amendment later rescinded the ratifications. There is some question as to whether or not a state can legally rescind its ratification. It appears now that the debate will continue, possibly in the courts.

In the years during which the amendment has been debated, a number of states have added such amendments to their own constitutions, however, and many still actively question whether the enormous gains women have made in the last few decades in all aspects of American society make such an amendment necessary.