US Senate Republicans blocked a measure on Wednesday that would have allowed the Equal Rights Amendment (ERA) to be added to the Constitution.
The legislation fell short of the 60 votes it needed, with senators voting 51 to 47 to invoke cloture on a motion to proceed, with Sens. Lisa Murkowski (Alaska) and Susan Collins (Maine) the only Republicans who voted to approve it along with every Democrat.
The ERA was first proposed in 1923 and passed Congress in 1972.
Under US law, constitutional amendments must be ratified by three-quarters of all state legislatures, which means 38 states. In 2020, Virginia became the 38th state to ratify the ERA, but it did so after the 1982 deadline to ratify the amendment had passed.
The Senate resolution would have removed the deadline so that the ERA could become the 28th Amendment. Sen. Ben Cardin (D-Md.) and Murkowski were the resolution’s lead co-sponsors.
Senate Majority Leader Chuck Schumer (D-N.Y.) argued throughout the week that the legislation was needed following the Supreme Court’s ruling last summer that overturned Roe v. Wade.
“This resolution is as necessary as it is timely. America can never hope to be a land of freedom and opportunity so long as half of its population is treated like second-class citizens,” Schumer said on the Senate floor ahead of the vote.
Lisa McCormick, a progressive activist from New Jersey, criticized the Democrats who are in control of the Senate for consistently failing to accomplish policy goals that have overwhelming public approval.
“The corporate Democrats have been ineffectual in their leadership, and their failure to pass the ERA is just the latest example of that. It is unacceptable that the ERA has not been added to the Constitution after all these years. It’s time for the progressive Democrats to step up and fight for the policies that the political insiders only claim to support,” McCormick said.
“The 2024 presidential election promises to be a pivotal moment in American history, and President Joe Biden’s inaction on issues like the ERA should be a crucial factor for Democrats like me, who believe that it would be wrong to write off Marianne Williamson’s campaign against President Biden,” said McCormick, who noted that during the 2020 Democratic primary campaign, Biden and Kamala Harris consistently voiced their support for the Equal Rights Amendment. “Now, the administration has gone silent.”
Despite Democratic control of the White House and Congress, the ERA’s constitutional future is mired in tactical disagreements among women’s advocacy organizations, contradictory schemes among elected Democrats, the arcane machinations of federal lawsuits and—in the bitterest irony—the Biden Justice Department’s decision not to withdraw an anti-ERA legal opinion cobbled together by Trump Justice Department lawyers.
“Finally the United States can emerge from the shame and shadow of its historic discrimination against women and girls and join the 21st century by providing all Americans with equal rights and protections under our Constitution regardless of sex,” said Kamala Lopez, after Virginia became the 38th state to ratify the Equal Rights Amendment on Jan. 27, 2020.
Lopez is president of Equal Means Equal, one of the prominent women’s rights groups that has spent more than a decade waging war—politically on the ground and legally in the courts—to make the 28th Amendment the law of the land.
“We cannot devalue the groundbreaking work of the women’s liberation movement by accepting the edict that American women should go back to the starting line to fight for our basic human and civil rights,” said Lopez.
McCormick said Biden could have ordered, the Archivist of the United States, Colleen Joy Shogan, to publish the amendment in the Federal Register—an act that would have certified the ERA, given it the force of law, and started the clock on a two-year deadline for each state to repair any and all of their sex-discriminatory laws and policies.
Schumer switched his vote to “no” in order to bring up the bill at another time. However, it remains to be seen whether the ERA will ever become part of the Constitution, given the current political climate and the opposition it faces from some Republicans.
The entire text of the proposed amendment is:
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.
According to a 2016 survey commissioned by the ERA Coalition, a whopping 94 percent of people in the United States would support an amendment enshrining gender equality into the Constitution.
Among 193 UN member states, 85% have a provision in their constitution that specifically addresses gender equality, and a further 115 that have a provision that prohibits discrimination on the basis of sex.
“It is very disappointing that not enough Senators felt that it is vital and necessary to uphold the equal rights of all citizens of the United States and denied the validity of the ERA today,” said Antonia Kirkland, Global Lead for Legal Equality & Access to Justice at Equality Now. “The ERA is not dead and should be recognized as the 28th amendment as it has met all the requirements of Article 5 of the Constitution. This will not be the last word on the ERA.”
While there are federal and state statutes and policies that do protect against some sex or gender-based discrimination, they are not a substitute for a constitutional amendment. The ERA would make sex a “suspect classification” like race, religion, and national origin and require cases of sex discrimination to undergo “strict scrutiny.”
Strict scrutiny is the highest level of justification in the US legal system and would recognize and raise sex equality to the status of a fundamental right and categorize sex as a “protected class,” making it more difficult for companies, employers, and other entities that discriminate to get away with it. This could pertain to everything from unequal or lack of parental leave to pregnancy discrimination to lack of coverage of birth control.
Currently, laws that protect women, girls, and gender minorities from discrimination are vulnerable to administrations and politicians bent on undermining gender equality. This has been shown with the bans on transgender Americans serving in the armed forces, only recently repealed, and current state-led anti-reproductive health legislation.