ERA Project Press Advisories

Date: October 26, 2022

Subject: ERA Project Summary of Argument Before PA Supreme Court on Whether Medicaid Abortion Ban Amounts to Sex Discrimination

Contact: Ting Ting Cheng, Director, ERA Project, [email protected]

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This morning, the Pennsylvania Supreme Court heard oral arguments in Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, a case in which reproductive rights advocates have challenged the state’s ban on Medicaid funding for abortion (Coverage Ban), arguing that the ban violates the state constitution’s explicit prohibitions against sex discrimination. Appellants, Pennsylvania abortion providers, ask the court to rule that the statutory ban on public funding for abortion violates the state’s Equal Rights Amendment (ERA), which added specific sex equality protections to the Pennsylvania constitution in 1971. The ERA Project at Columbia Law School submitted an amicus brief in the case providing an overview of how the denial of reproductive health care in general, and access to abortion in particular, have been found by many courts, and many prominent legal scholars, to amount to a form of sex-based discrimination.

Our brief explains how denial of access to abortion violates the Pennsylvania ERA and is a form of sex discrimination in several different ways:

i) The ban burdens women’s access to health care in ways that men are not similarly burdened;

ii) The ban is based on stereotypes about gender-based identities and roles in society, and forces pregnant people to conform to an outdated gendered destiny in the home raising children rather than in the workplace, the boardroom, the statehouse, or other more traditionally “masculine” spheres of life; and

iii) The capacity to rationally plan or space parenthood by people who bear the largest burden of childrearing—typically women—renders them incapable of participating equally in the workplace, in education, in politics, and in other contexts fundamental to robust citizenship.

In today’s oral arguments, the Justices probed the question of whether and how the denial of funding for abortion amounts to a form of sex discrimination. Susan Frietsche from the Women’s Law Project in Pennsylvania argued to the court that:

• The law is facially discriminatory and contains text banning funding for abortion which specifically mentions “women who are pregnant” and that there is no comparable medical care for men that is not covered by Medicaid. This case is about limits on health care access provided to women, with no similar limit on men’s access to comparable care. Pennsylvania gives fewer benefits to people with a uterus.

• The equality provisions of the state constitution, including the ERA, exceed those contained in the Equal Protection Clause of the federal constitution.

• Banning funding for abortion amounts to a form of sex stereotyping, in so far as it reflects the stereotype that women are and should be mothers, and is inextricably linked to women’s equal status as citizens.

• The Pennsylvania ERA, adding explicit sex equality protections to the state constitution, requires courts to apply strict scrutiny to sex-based classifications in state laws. Frietsche urged the court to look to New Mexico, where the state Supreme Court found that a similar ban on Medicaid funding for abortion violated their state ERA.

• The case does not require the court to rule whether there is a constitutional right to abortion in Pennsylvania, nor a right to state-funded health care. But if the state does subsidize healthcare via Medicaid, it must do so in a way that does not discriminate on the basis of sex. As such, the Supreme Court’s recent decision in Dobbs has no relevance to this case.

• Limits on public funding for abortion disproportionately impact low-income women and women of color in the state, and their rights are particularly abridged by this law.

• When asked by one of the Justices about the state’s duty to protect a right to life, Frietsche responded that the ban on covering abortion undermines a right to life, while providing access to abortion promotes life and health, especially the life and health of women. She noted that this is not a pro-life or pro-choice case, it’s a case about equality in health care funding, and concluded that women have rights protected by the constitution, fetuses do not.

• The ban on funding for abortion amounts to a commandeering of women’s bodies by forcing pregnancy and birth.

Attorney Matthew Haverstick argued the case in favor of the Coverage Ban on behalf of several state legislators who have intervened in the case. With respect to the ERA he argued:

• A state policy limiting funding for abortion does not amount to sex discrimination, because it is not based in sex stereotyping.

• There is no constitutional right to funding for health care, abortion, or any fundamental right (such as guns).

• The state’s refusal to fund abortion through Medicaid does not make it any more difficult to obtain an abortion, and the fact that poor women cannot afford to pay for abortions is not due to any action on the part of the state, as their lack of funds derives from other sources.

We note that there was also an extremely unfortunate, and transphobic, colloquy between Mr. Haverstick and one of the Justices in which they made fun of, if not ridiculed, the fact that not only women can become pregnant and need abortion services, insofar as trans men can become pregnant.

The Court also heard argument on the question of whether abortion providers had legal standing to bring this case and whether state legislators could intervene on both sides of the case, some challenging the Medicaid ban and others defending it. Professor David Cohen from Drexel Kline School of Law argued the case in favor of standing for the providers, offering a masterclass to the court and audience on the state law of standing.

The Court is expected to issue a decision in several months.

Date: January 27, 2022

Subject: Biden Administration Revises Federal Government Position on Validity of the Equal Rights Amendment

Contact: 

Katherine Franke, [email protected]

Ting Ting Cheng, [email protected]

Download a pdf of this press advisory.

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Today the Department of Justice (DOJ) Office of Legal Counsel (OLC) released a new opinion on the ratification of the Equal Rights Amendment (ERA). This opinion revises a 2020 OLC opinion issued under the Trump administration that declared the ERA a dead letter.  

When finally ratified, the ERA would provide a powerful Constitutional guarantee of sex equality. The ERA is straightforward, even simple, in its language: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Thirty-eight states have ratified the ERA, satisfying constitutional requirements for amendments. However, the validity of the last three state ratifications occurred after a congressionally imposed time limit, and therefore the ratification process is currently being debated in Congress and the courts. A joint resolution lifting the deadline was passed by the House of Representatives and has been introduced in the Senate. Meanwhile, several lawsuits have been filed by advocates supporting the ERA, arguing that the ERA is now a valid part of the Constitution notwithstanding the deadline.

This explainer provides a brief background, and describes the OLC opinion and its significance.

• The previous OLC opinion states that the congressionally-imposed deadline was binding and, upon its expiration, Congress did not have the power to remove or extend it. Therefore, the OLC concluded that the Archivist did not have the authority to certify Virginia’s ratification of the ERA in 2020.

 

• OLC’s new opinion does not withdraw the 2020 opinion, rather it states that part of that opinion was misplaced and that in the current OLC’s view the law does not provide “clear guidance” on the question of Congress’s power to lift the deadline. As such, it is now the position of the OLC that Congress may consider and pass the deadline lifting joint resolution.

 

• In so doing, the Biden administration has now cleared a path for Congress to consider and pass a joint resolution that would lift the deadline on final ratification of the ERA. The current deadline, now expired, was imposed by an earlier Congress. In our view, the OLC’s new position correctly reflects a reading of the Constitution that anticipates no role for the executive branch in the constitutional amendment process – rather, Article V of the Constitution leaves it to Congress and the people more generally to consider and ratify new amendments.

 

• The new opinion does not instruct the Archivist to publish the ERA and suggests that the issue is properly before the federal courts and Congress.  

 

• On October 21, 2021 the ERA Project provided an in-depth legal analysis to Chairwoman Carolyn Maloney’s office, at her request, urging that the DOJ withdraw the Trump Administration’s OLC opinion. We argued that it “embraces an erroneous interpretation of legal precedent” and “conflicts with … the authority and responsibility of the Congress to resolve disputes about proposed amendments to the Constitution.” Signatories of our letter include the country’s most eminent constitutional law scholars.

 

• The position we took in our analysis is reflected in the OLC’s new opinion – that the status of the ERA (based on disputes over the legality of the time limits, Congress’s power to resolve the time limit issues, and the validity of states that have voted to revoke their previous ratifications of the ERA) should be left to Congress and the courts, not the executive branch.  

 

• Our clear and careful legal analysis has been used by members of Congress to gain the attention of President Biden, Vice President Harris, Attorney General Garland, and Assistant Attorney General Schroeder, who heads the OLC. Our analysis continues to provide the legal authority for lawmakers in support of the ERA. Most recently, our analysis was featured in a letter submitted this week by Senators Richard Blumenthal, Amy Klobuchar, and Catherine Cortez Masto, and Representatives Carolyn Maloney and Jackie Speier to the OLC, urging that they withdraw their 2020 opinion.

 

• This new OLC ERA opinion is a significant victory for the advocacy strategy pursued by the ERA Project and our partners.  

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Founded in 2021, the ERA Project at Columbia Law School’s Center for Gender and Sexuality Law is a law and policy think tank that develops academically rigorous research, policy papers, expert guidance, and strategic leadership on the role of the Equal Rights Amendment (ERA) in advancing the larger cause of gender-based justice. The ERA Project does not engage in lobbying, but instead develops academic, legal and policy expertise to support efforts to expand protections for gender-based equality.

 

For more from the ERA Project, read our policy briefs and legal explainers, media mentions, amicus brief submitted to Pennsylvania Supreme Court in Allegheny Reproductive Health Center v. Pennsylvania DHS, and much more.

Date: October 14, 2021

Subject: ERA Project Files Amicus Brief with PA Supreme Court Explaining Why Abortion Ban Violates State ERA

Contacts: Ting Ting Cheng, [email protected]

Katherine Franke, [email protected]

Download a pdf of this press advisory here.

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New York, NY - Yesterday the Equal Rights Amendment Project at Columbia Law School submitted an amicus, or friend of the court, brief with the Pennsylvania Supreme Court explaining why a state ban on public funding for abortion is a form of sex discrimination, in violation of the state’s Equal Rights Amendment (ERA).  In the brief filed in Allegheny Reproductive Health Center v. Pennsylvania Department Of Human Services, the ERA Project provided the Court with an overview of how the denial of reproductive health care in general, and access to abortion in particular, has been found by the United States Supreme Court, other state courts, and many prominent legal scholars, to amount to a form of sex-based discrimination. 

The brief explains how denial of access to abortion violates the Pennsylvania ERA and amounts to a form of sex discrimination in several different ways because: i) the ban burdens women’s access to health care in ways that men are not similarly burdened, ii) the ban is based on stereotypes about gender-based identities and roles in society, and forces pregnant people to conform to an outdated gendered destiny in the home raising children rather than in the workplace, the boardroom, the statehouse, or other more “masculine” spheres of life, and iii) the capacity to rationally plan or space parenthood by people who bear the largest burden of childrearing—typically women—renders them incapable of participating equally in the workplace, in politics, and in other contexts fundamental to robust citizenship.

“The Ban on public funding for abortion imposes a significant barrier to fundamental reproductive choice, and this barrier is essentially rooted in a long history of outdated sex-based classifications, odious sex-stereotyping, and documented impediments to equal citizenship for all Pennsylvanians, regardless of their sex,” said Ting Ting Cheng, Director of the ERA Project and co-author of the brief.

“As scholars of sex equality generally, and of measures such as the Pennsylvania Equal Rights Amendment in particular, our brief provided the court with several ways in which the abortion ban violates fundamental sex equality principles,” said Professor Katherine Franke, Founding Faculty Director of the ERA Project.  “Through whichever path the court takes, the destination is unavoidable: the abortion ban violates the Pennsylvania Constitution’s protections securing sex-based equality.”

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The ERA Project at Columbia Law School’s Center for Gender and Sexuality Law is a law and policy think tank established in January 2021 to develop academically rigorous research, policy papers, expert guidance, and strategic leadership on the Equal Rights Amendment (ERA) to the U.S. Constitution, and on the role of the ERA in advancing the larger cause of gender-based justice.

 

Press Advisory

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Date:       April 29, 2021

Subject:  Ting Ting Cheng Appointed as Director of Columbia Law School’s ERA Project

Contact:  Katherine Franke | 646-489-9001 | [email protected]

                Ting Ting Cheng | 646-510-1195 | [email protected]

Download a pdf of this press advisory here.

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New York, New York -- Today, the Equal Rights Amendment (ERA) Project at Columbia Law School announced that Ting Ting Cheng has been appointed as the Project’s first Director. Ms. Cheng has wide-ranging experience as an advocate for gender justice and brings an ambitious strategic vision to the ERA Project’s work. “The ERA Project fills a critical need in bringing rigorous legal and policy analysis to the campaign to secure explicit sex equality protections in the U.S. constitution,” said Cheng. “Our work ahead is to build a modern, feminist, and inclusive ERA from the ground up and to center the voices of those who stand to gain the most from a constitutional guarantee of sex equality,” continued Cheng.

Ting Ting Cheng comes to the ERA Project after serving as a staff attorney at Legal Momentum, where she led their ERA-related work, in addition to litigating workplace discrimination, reproductive rights, violence against women, education equity, human trafficking, and other gender justice issues. Before joining Legal Momentum, she served as the Legal Director of the 2017 Women’s March on Washington, as staff attorney at the New York City Commission on Human Rights, and as a trial attorney at the Brooklyn Defender Service where she focused on both criminal and immigrant defense. Upon graduating from law school, she was a Fulbright Fellow in South Africa (and received the Amy Biehl Award) serving as foreign law clerk to Justices Albie Sachs and Edwin Cameron at the Constitutional Court of South Africa.

This short video introduces Ting Ting, and lays out her vision for the ERA Project.

“Ting Ting joins the ERA Project with extensive experience working on sex equality, and a forward-looking vision of gender-based justice that surfaces how the ERA is not just relevant today, but necessary,” said Professor Katherine Franke, Faculty Director of the ERA Project and Director of the Center for Gender and Sexuality Law.  “I look forward to working with Ting Ting to write sex equality into the U.S. Constitution, and to make the promise of the ERA a reality,” continued Professor Franke.

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The ERA Project at Columbia Law School’s Center for Gender and Sexuality Law is a law and policy think tank established in January 2021 to develop academically rigorous research, policy papers, expert guidance, and strategic leadership on the Equal Rights Amendment (ERA) to the U.S. Constitution, and on the role of the ERA in advancing the larger cause of gender-based justice.

Press Advisory

Date:        March 17, 2021

Subject:   Columbia Law School ERA Project FAQ on Legal Issues Surrounding Final Ratification of the Equal Rights Amendment

Contact:  Professor Katherine Franke, Faculty Director, ERA Project, Columbia Law School, [email protected], 646-489-9001                       

Click here to download a pdf of this Press Advisory.

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New York, New York – Today, the House of Representatives has scheduled a vote on House Joint Resolution 17, a measure that would remove any deadline for ratification of the Equal Rights Amendment (ERA) and, as a consequence, would make the ERA finalized and valid at the moment when it has been ratified by 3/4 of the state legislatures. There are many complex legal issues surrounding the finalization of the ERA, and Columbia Law School’s Equal Rights Amendment (ERA) Project has prepared a FAQ that explains the history of ERA ratification, what HJR 17 will do, and the complex legal issues that surround the final ratification of the ERA. The FAQ is intended to aid journalists, the public, and policymakers in understanding the legislative, legal, and political efforts that surround the ERA.

FAQ on the Current Status of the Equal Rights Amendment to the U.S. Constitution

Several measures have been introduced into the U.S. Congress this session that relate to the Equal Rights Amendment (ERA). One is a resolution that would lift the deadline for ratification of the ERA that was passed by Congress in 1972, and the other is a new ERA that would begin a new process of amending the Constitution to add explicit protections for sex equality. This FAQ is designed to explain what each of these measures would do and the legal complexities that surround them.

What are the requirements for amending the U.S. Constitution?

Under Article V of the U.S. Constitution, a proposed amendment to the Constitution, when approved by 2/3 of both Houses of Congress, shall become a part of the constitution when ratified by the legislatures of 3/4 of the states.^[i]

The First ERA - 1923

The first ERA was introduced into Congress in 1923:

“Men and Women shall have equal rights throughout the United States and every place subject to its jurisdiction.”^[ii]

This version of the ERA was never passed by Congress.

The 1972 ERA

Various versions of the ERA were introduced in Congress from 1923 through 1970. The one that was adopted by two-thirds of both Houses of the 92^nd Congress in 1971-72 read as follows:

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. 

This version of the ERA was passed by Congress in 1972, and included a preamble that created a seven-year deadline for ratification by 3/4 of the state legislatures.^[iii]  By 1977, 35 states ratified the ERA. Congress extended the deadline by three more years, to 1982, but no additional states ratified the amendment. By both the 1979 deadline and 1982 extended deadline, the ERA was three states short of the 38 required. 

Three additional states ratified the ERA decades after both deadlines had expired: Nevada (2017), Illinois (2018), and Virginia (2020) – thus meeting the constitutional requirement of ratification by 3/4 of the states, albeit long after Congress’s anticipated timeframe for ratification.

Does Congress Have the Power to Include a Deadline for The Ratification Process to be Completed?

Yes. While Article V of the Constitution makes no mention of a timeframe for ratification, in Dillon v. Gloss (1921) the Supreme Court recognized the power of Congress to create a reasonable deadline for state ratification of a proposed amendment. Dillon involved a challenge to the seven-year deadline that Congress created for ratification included in the 18^th Amendment (prohibiting the sale or importation of intoxicating liquors).^[iv] 

Congress injected a time limit for ratification for the first time in 1917, when it included a seven-year time limit in the Prohibition Amendment.

Why Is There a Dispute About the Deadline for Ratification of the ERA?

The Supreme Court’s ruling in Dillon does not answer the question of the validity or effect of the deadline on ERA ratification.  The deadline upheld by the Court in Dillon was contained in the third section of the Prohibition Amendment itself (see text in endnote 4 below), whereas the deadline for ratification of the ERA was placed in the preamble to the ERA that was passed by Congress. Some argue that the validity of the ERA deadline does not depend on whether the deadline was contained in the body of the proposed amendment or in the preamble. They point to the 23^rd, 24^th, 25^th, and 26^th Amendments – all of which were passed by Congress with a deadline for state ratification in the preamble. Their view is that Congress has recently adopted the practice of placing the deadline in the preamble so as to not clutter up the Constitution with language that was irrelevant once the amendment was fully ratified.

Others argue that a ratification deadline in the preamble is without binding legal effect. They maintain that, when the states ratified the ERA, they only ratified the proposed amendment, and not the introductory words in the resolution creating the deadline. Thus, states were free, according to this position, to ratify the amendment at a time of their choosing.

Another position is that a ratification deadline in the preamble has legal effect, but can be changed by Congress upon Congress’s assessment of whether the proposed amendment remains vital and requires more time for full and fair debate, and consideration by the states. The introductory preamble is not part of the proposed amendment, and therefore need not be adopted by two-thirds of Congress or ratified by three-fourths of the states in order to be legally effective. Congress has the power to change the deadline by a majority vote, as it did in 1978 when it extended the deadline to 1982. This power includes the power to change the deadline, even retroactively, or to remove it altogether upon Congress’s political judgment that the proposed amendment remains vital and necessary.

Those who advocate the 1972 ERA’s continued viability in 2021 point to the 27^th Amendment (prohibiting pay changes for members of Congress from taking effect until after the next set of congressional elections), in which Congress proposed the amendment by a two-thirds’ vote in 1789; yet the requisite ratification by 3/4 of the states did not occur until 1992, more than 200 years later. This example shows, some argue, that a pending amendment does not grow stale through the passage of time needed to complete state ratification. Nonetheless, the 27^th Amendment did not contain a deadline in the preamble, and thus does not unequivocally answer the question of whether an amendment with an expired deadline can continue across generations to be ratified.

In short, no existing precedent, from Dillon v. Gloss to the 27^th Amendment, squarely answers the most challenging questions on which the viability of the ERA currently turns.

What Will House Joint Resolution 17 Do?

House Joint Resolution 17 will remove any deadline requirement for the ratification of the ERA, and recognizes the ERA as valid and part of the Constitution whenever it has been ratified by 3/4 of the state legislatures. So, if the House and Senate both pass the resolution (by a majority vote, not a 2/3 vote – though the resolution would have to overcome the filibuster in the Senate, requiring 60 votes to move it to the floor for a majority vote), the ERA would become part of the U.S. Constitution, subject to subsequent legal challenges.

If Both Houses Pass the Deadline Removal Resolution, What Legal Challenges Might We Expect?

Should the “deadline lifting” resolution be passed by both the House and the Senate, it is likely that the finalization of the ERA would be challenged on two principal grounds:

1. That the earlier deadline had already expired in 1979, and Congress did not have the power to change or retroactively lift that deadline. In Dillon v. Gloss (1921) the Supreme Court held that Congress has the power “to fix a definite period for” ratification, but unratified and rescinding states maintain that states relied on the deadline (whether it is in a preamble or the proposed amendment) and therefore Congress is without power to change it, especially to revive an amendment after the deadline expired long ago. This is a legal question on which constitutional law experts disagree, and the Supreme Court has never addressed.
2. That 3/4 of the states have not ratified the ERA because at least five states have rescinded their earlier ratification. Whether states that ratified and then rescinded should be counted as “ratified” states or not is a complex legal question, on which there is a range of reasonable positions. The Supreme Court has not addressed it, but Congress has, in its handling of the 14^th Amendment.

Can a State Rescind an Earlier Ratification of the ERA?

Between 1973 and 1979, five state legislatures that had previously voted to ratify the ERA subsequently voted to rescind that ratification.Nebraska (1973), Tennessee (1974), Idaho (1977), Kentucky (1978), and South Dakota (1979). Kentucky’s governor vetoed the legislature’s resolution to rescind ratification of the ERA. In 1979 the South Dakota legislature approved a “sunset” amendment to its 1973 ratification of the ERA, meaning that the legislature voted to have its ratification of the ERA essentially expire if 3/4 of the states had not ratified the ERA by the original deadline of 1979. The legal status of these rescissions, governor’s veto of a legislative rescission, and “sunset” provision, is unclear as the Supreme Court has not ruled on this issue, and none of these measures are mentioned in Article V of the Constitution or in any federal law relating to amendments to the Constitution.

The Constitution says nothing about whether a state can rescind or revoke its ratification of a Constitutional Amendment, either before the ratification process has been completed (before 3/4 of the states have ratified) or after. Some advocates and scholars argue that ratification is a one-time event, once done it cannot be undone as the Constitution only provides for ratification, not un-ratification.

The issue of rescission of a prior ratification of a Constitutional amendment is not new.  Three states voted to rescind their ratifications of the 14^th Amendment.^[v]  Yet these states were counted when the federal government tallied the total states that had ratified the Amendment, thus declaring that it was officially part of the Constitution.^[vi]  The validity of the official count was contested, however, by those who sought to validate a state’s right to rescind.

To make the question of the legality of states changing their vote even murkier, several states voted to ratify the 14^th Amendment after having voted to reject it.^[vii] When every Confederate state except Tennessee refused to ratify the 14^th Amendment, Congress passed a law requiring all states to do so as a condition of seating their members of Congress.^[viii]  Subsequently, states that had voted against ratification of the 14^th Amendment voted again and ratified it, thus enabling their elected representatives to be seated in Congress. Congress declared the 14^th Amendment was fully ratified as a political matter, and its legitimacy as part of the Constitution has not been seriously questioned in the courts.

Who Has the Power to Decide the Contested Issues of Deadline and Rescission?

Not clear. In Coleman v. Miller (1939) the Supreme Court ruled that the controversies around the promulgation or proclamation of constitutional amendments were political questions for Congress, not courts, to decide. The ongoing precedential force of Coleman, however, has been widely questioned by scholars. The text of Article V does not specify a role for Congress in the amendment process after proposing it to the states for ratification, and the Supreme Court has actually adjudicated several cases contesting the validity of the amendment process.

On March 5, 2021 a district court in D.C. ruled that challenges to the ERA deadline were issues the court had jurisdiction to decide, reading the Coleman case quite narrowly. See the ERA Project’s FAQ on the D.C. court’s decision.

Recent Litigation Regarding the Deadline

Two cases have been brought in court aimed at forcing the federal government to acknowledge that the ERA was fully ratified when Virginia ratified the ERA in January 2020. One suit was brought in a district court in D.C. by the three most recent states that ratified the ERA (Nevada, Illinois, and Virginia), and the other was brought in federal court in Boston by the advocacy group Equal Means Equal. Both suits argued that the deadline was invalid, and asked the court to order that the ERA become a part of the Constitution when Virginia ratified in January 2020. Both suits were dismissed on account of the fact that parties bringing the suits did not have standing to challenge the ERA’s legality. For a more detailed explanation of the D.C. case, see the ERA Project’s FAQ on the D.C. court’s decision.

The Third ERA - 2021

A third version of the ERA, sometimes referred to as the “fresh start” ERA, was introduced into Congress on March 1, 2021 by Representative Carolyn Maloney (having introduced it in every session of Congress starting in 2007). H.J. Res. 28 provides:

Section 1. Women shall have equal rights in the United States and every place subject to its jurisdiction. 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. Congress and the several States 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.

This new measure would start the process all over again, meaning that both houses of Congress would have to pass the resolution by a 2/3 majority, then 3/4 of the state legislatures would have to ratify it. Note that this version of the ERA is broader than the 1972 version, specifically extending sex equality rights to both the public and private sectors rather than simply prohibiting government from abridging those rights. As currently proposed, the “fresh start” ERA does not contain a deadline.

Visit the ERA Project’s website here.

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The ERA Project, a law and policy think tank, develops rigorous academic research, policy papers, expert guidance, and strategic leadership to support the Equal Rights Amendment (ERA) to the U.S. Constitution, and the broader project of advancing gender-based justice.

The Center for Gender and Sexuality Law at Columbia Law School develops research projects and initiatives focused on issues of gender, sexuality, reproductive rights, bodily autonomy, and gender identity and expression in law, policy, and professional practice. The Center’s mission is to formulate new approaches to complex issues facing gender and sexual justice movements.

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[i] The Constitution sets out another process to add amendments, but it has never been used: 2/3 of the states can vote to convene a Constitutional Convention at which an amendment can be approved, and then 3/4 of the states have to ratify that amendment.

[ii] House Joint Resolution No. 75, December 13, 1923.

[iii]  H.J. Res. 208, 92^nd Congress: “the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress.”

[iv] Senate Joint Resolution 17 (1917):

Section 1

After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2

The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

[v] New Jersey (ratification 1866, rescission 1868), Oregon (ratification 1866, rescission 1868, and Ohio (ratification 1867, rescission 1868) voted to rescind their ratifications after having voted in favor of the 14^th Amendment. All three states later voted to re-ratify the 14^th Amendment: New Jersey (re-ratification 2003), Oregon (re-ratification 1973), Ohio (re-ratification 2003).

[vi] See A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774–1875. Library of Congress. p. 708.

[vii] North Carolina (ratification July 4, 1868 after rejection December 14, 1866), Louisiana (ratification July 9, 1868 after rejection February 6, 1867), South Carolina (ratification July 9, 1868 after rejection December 20, 1866), Georgia (ratification July 21, 1868 after rejection November 9, 1866).

[viii] An Act to provide for the more efficient Government of the Rebel States, enacted March 2, 1867, 14 Stat. 428, 429

Press Advisory

Date:       March 6, 2021

Subject:  Columbia Law School ERA Project Statement on Virginia v. Ferriero

Contact:  Professor Katherine Franke, Faculty Director, ERA Project, Columbia Law School, [email protected], 646-489-9001

Download a pdf of this Press Advisory here.

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New York, New York – Columbia Law School’s Equal Rights Amendment (ERA) Project issued the following comment on the decision issued by federal judge Rudolph Contreras in Virginia v. Ferriero, a lawsuit brought to force the Archivist of the United States to finally publish the Equal Rights Amendment:

Yesterday, a federal district court in the District of Columbia dismissed a lawsuit brought by three states, Virginia, Illinois, and Nevada, seeking to have the Equal Rights Amendment (ERA) declared effective immediately. The lawsuit was brought by these three states – the last three states to ratify the ERA – against the Archivist of the United States seeking to have him publish the ERA as part of the U.S. Constitution. When Congress passed the ERA in 1972, it included a seven-year deadline for three-quarters of the states to ratify the amendment. Yet these three states’ ratification took place after the deadline had expired. The district court yesterday disagreed with the states’ arguments, thus returning the issue to the Congress, where joint resolutions have been introduced in the House and the Senate to lift the deadline retroactively. The House resolution, H.J.79, is sponsored by Reps. Jackie Speier (D-CA) and Tom Reed (R-NY), and the Senate resolution, S.J.1, is sponsored by Senators Ben Cardin (D-MD) and Lisa Murkowski (R-AK). Adoption of these resolutions would add the ERA to the U.S. Constitution.

For a more detailed explanation of the district court’s ruling, please see the ERA Project’s FAQ about the district court’s ruling here.

“By dismissing the lawsuit, the federal court affirmed that making the ERA part of the U.S. Constitution lies primarily in the hands of the people and their elected representatives,” said Katherine Franke, Faculty Director of the ERA Project at Columbia Law School. “Yesterday’s ruling is not really a setback for sex equality or the ERA, rather it renews our focus on the bill introduced by Rep. Jackie Speier (with 203 co-sponsors from both political parties) that would declare the ERA fully ratified whenever three-quarters of the states have voted to do so,” continued Professor Franke.

Julie Suk, Professor of Sociology and Political Science at The Graduate Center, CUNY, one of the professors who filed the academics’ amicus brief in the litigation, and a member of the ERA Project’s Academic Advisory Council said, “In concluding that the seven-year ratification deadline was effective, the decision explicitly leaves open the issue of whether Congress can now remove the deadline and validate the late ratifications. The court’s reasoning clearly affirms Congress’s role as the director of the Article V amendment process. The ball is clearly in Congress’s court, where there has been bipartisan support for sex equality as a constitutional principle for the past fifty years.” 

Visit the ERA Project’s website here.

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The ERA Project, a law and policy think tank, will develop rigorous academic research, policy papers, expert guidance, and strategic leadership to support the Equal Rights Amendment (ERA) to the U.S. Constitution, and the broader project of advancing gender-based justice.

The Center for Gender and Sexuality Law at Columbia Law School develops research projects and initiatives focused on issues of gender, sexuality, reproductive rights, bodily autonomy, and gender identity and expression in law, policy, and professional practice. The Center’s mission is to formulate new approaches to complex issues facing gender and sexual justice movements.

Press Advisory

Date:        January 25, 2021

Subject:   Columbia Law School Center for Gender and Sexuality Law Launches New ERA Project

Contact:  Professor Katherine Franke, Faculty Director, ERA Project, Columbia Law School, [email protected], 646-489-9001;

Marianne Stack, Advisory Board Member, ERA Project, [email protected] 804-405-1678

Download a pdf of this Press Advisory.

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New York, New York -- Columbia Law School Professor Katherine Franke announced the creation of a new project that will bring cutting-edge research, strategy, and legal resources to the fight for gender-based equality. The Equal Rights Amendment (ERA) Project will be housed at the Law School’s Center for Gender and Sexuality Law (CGSL), which Franke founded in 2004.

The ERA Project, a law and policy think tank, will develop rigorous academic research, policy papers, expert guidance, and strategic leadership to support the Equal Rights Amendment (ERA) to the U.S. Constitution, and the broader project of advancing gender-based justice.

“Columbia Law School is well known as the preeminent law school for the study of and specialization in the law of gender and sexuality,” said Franke. “Given that the late U.S. Supreme Court Justice Ruth Bader Ginsburg ’59 had strong ties to Columbia Law School, as both an alumna and former professor, we are so honored to create the first and only academic home for ERA-related work at Columbia Law School,” Franke continued.

“We have drawn an incredibly impressive group of leaders from law, business, politics, and social justice fields to the project’s advisory board,” said Liz Young, a founding member of the ERA Project’s Advisory Board. “We expect that the ERA will move forward in these hopeful times and inspire equality in all areas of society, and the advisory board envisions truly transformative strategic leadership from the collaboration with Columbia’s Center for Gender and Sexuality Law.” 

Gillian Lester, Dean of Columbia Law School, applauded the launch of the new ERA Project, “I am delighted that we can bring the extraordinary legal and strategic expertise at Columbia Law School to the campaign to secure sex-based justice.  The ERA Project will solidify Ruth Bader Ginsburg’s legacy at Columbia Law School, where she taught the law school’s first Sex Discrimination Law courses and trained future women’s rights advocates.”

The ERA Project has begun a search for a Project Director who will work closely with Franke, the Project’s faculty director. The announcement for the new job can be found here.

The ERA Project will not engage in lobbying, but instead will develop academic, legal, and policy expertise to support efforts to expand protections for gender-based equality and justice.

Founding board of advisors include:

Susan Bevan retired from a career as legal counsel for a Wall Street firm and has since served as an advocate for women in a variety of endeavors. As co-chair of the Republican Majority for Choice, she worked to protect reproductive health rights for all Americans. Formerly a board member of Alpha Phi International Fraternity and Foundation, her focus remains on developing leadership opportunities for collegiate women. Susan has co-produced two independent films with strong female protagonists, Equity and An Acceptable Loss.

Nia J.C. Castelly is a graduate of Spelman College and Columbia Law School ‘00, and currently serves as senior counsel at Google where she leads a team focused on user privacy rights. Nia participates in and supports the efforts of a number of employee resource groups, including the Civil Rights Group, Black Googlers Network and Women@. Throughout her career, Nia has both founded and led initiatives that help ensure women and minorities not only have access to the law but also can thrive in the practice of law.

Wade Leak is a graduate of Columbia Law School ‘89 and Deputy General Counsel at Sony Music Entertainment.  He is the vice president of the Columbia Law School Alumni Association and credits the school with awakening his commitment to pursuing equality for all.  He supports many organizations that promote social justice and equal rights.  

Marianne Stack is a former Communications Director for the ERA Coalition. She is a political activist who has helped elect women candidates running for national, state, and local office. Marianne previously worked for ABC News for 16 years where she won two national news Emmy awards and produced many stories on women’s issues. 

Candy Straight is a political activist, retired investment banker, and film financier. Candy co-produced Ain’t I A Woman, a documentary on the ERA premiering later this year, and executive produced Equity, a film about women on Wall Street which premiered at the Sundance Film Festival in 2016. Equity was purchased by Sony Pictures Classic.

Marcy Syms grew Syms Corp, becoming the youngest woman president of a NYSE company. She is founding trustee and president of the Sy Syms Foundation and is often involved with philanthropic startups. She has chaired the ERA Coalition and The Fund for Women’s Equality. She is an author and independent board member and has been recognized for her work in the area of women’s rights with honors of distinction.

Liz Young co-founded the ERA Coalition / Fund for Women’s Equality. She has spent two decades fighting for equality and women’s rights. She helped build Equality Now to create enduring equality for women and girls through the use of the law and grassroots work. As a board member at Donor Direct Action, she took advantage of her business background to help create funds for front line women's rights activists around the world. Liz is a former EVP and global head of Communications at Bertelsmann and Sony.

Visit the ERA Project’s website here.

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The Center for Gender and Sexuality Law at Columbia Law School develops research projects and initiatives focused on issues of gender, sexuality, reproductive rights, bodily autonomy, and gender identity and expression in law, policy, and professional practice. The Center’s mission is to formulate new approaches to complex issues facing gender and sexual justice movements.