On a key anniversary for the Equal Rights Amendment, Democratic members of Congress this week launched a new effort to recognize the amendment and its gender equity protections under the Constitution — but what it will mean in the long run remains unclear.

Rep. Jackie Speier of California announced Thursday that she would help file a resolution that recognizes that the amendment is a part of the Constitution because the text of the ERA states that it goes into effect two years after enough states ratify it. 

Thursday marks exactly two years since lawmakers in the Virginia legislature ratified the ERA, making it the 38th and final state needed to add the amendment to the Constitution. 

“This resolution draws attention to the fact that it is law, and should be reflected as such,” Speier told The 19th.

But the ERA’s addition as the country’s 28th Amendment has been ensnared in questions of legitimacy by opponents who say the last three states that ratified the ERA — Nevada in 2017, Illinois in 2018 and Virginia in 2020 — did so way past deadlines imposed by Congress in the 1970s and 1980s for ratifying the amendment. Litigation has followed, and some attorneys believe more legal challenges are on the way if people believe they can now cite the ERA in gender discrimination lawsuits

Supporters of the ERA have noted in part that the rules around adding an amendment are ambiguous but that those spelled out in the Constitution — that Congress must approve it with a two-thirds majority and so must three-fourths of state legislatures — have been met. They’ve also emphasized their belief that Congress has the power to decide what happens next.

The resolution from Speier and Rep. Carolyn Maloney of New York comes after the U.S. Department of Justice Office of Legal Counsel (OLC) on Wednesday released a new opinion, this one revising its 2020 opinion about the amendment’s future.

The 2020 opinion, under the Trump administration, said that a deadline imposed decades ago by Congress was binding. Further, it said the United States archivist, a federal employee who certifies new amendments to the U.S. Constitution, did not have the authority to certify the ERA. The archivist has cited that DOJ opinion in refusing to certify the ERA.

A lawsuit filed by attorneys general for the last three states that ratified the ERA also challenged the archivist’s actions. A district court judge dismissed the lawsuit last year, saying there was no legal grounds to proceed. An appeal is pending.

The latest OLC opinion does not withdraw the previous one but instead clarifies that the law does not provide “clear guidance” on the ratification process. It also does not instruct the archivist to certify the ERA.

“Whether the ERA is part of the Constitution will be resolved not by an OLC opinion but by the courts and Congress,” according to the opinion.

President Joe Biden noted the new opinion’s potential significance in a statement Thursday that called on Congress to act “immediately” to pass a resolution recognizing the ERA. He did not mention the archivist.

“As the recently published Office of Legal Counsel memorandum makes clear, there is nothing standing in Congress’s way from doing so. No one should be discriminated against based on their sex — and we, as a nation, must stand up for full women’s equality,” he said.

ERA supporters see a ‘significant victory’

Supporters of the Equal Rights Amendment cheered on the developments Thursday during a news conference that preceded a planned rally.

“In sum, we did it,” said Maloney during the news conference. “I want to take a moment to celebrate all of the ERA advocates who never gave up the fight. We are on the cusp of making history and empowering women thanks to their tenacity.” 

The latest resolution effort is separate from a resolution passed in 2020 and 2021 by House Democrats that effectively aims to remove any time limits associated with the ERA. While a handful of Republicans have expressed support for the amendment in the Senate, they have not passed the resolution in that chamber.

Separately this week, Speier, Maloney and a handful of Democratic senators — Richard Blumenthal of Connecticut, Amy Klobuchar of Minnesota and Catherine Cortez Masto of Nevada — sent a letter to the U.S. Department of Justice seeking that it withdraw its 2020 opinion. Their efforts came shortly before the OLC released its new opinion.

The ERA Project at Columbia Law School’s Center for Gender and Sexuality has developed legal analysis on the Equal Rights Amendment. The group, which does not lobby lawmakers but instead shares research with them and others, also believes the 2020 DOJ opinion should be withdrawn in part because it goes beyond the scope of the office’s duties. It called Thursday’s new opinion “a significant victory.”

“Congress historically has the role, and constitutionally has the role, to resolve any disputes in the Constitutional amendment process,” Ting Ting Cheng, director of the ERA Project, told The 19th.

A process nearly a century long

The process of adding gender equity to the Constitution, specifically through the ERA, dates back nearly 100 years. There is little precedent on next steps, in part because there is limited case law on the amendment process.

Supporters of the ERA have often pointed to the history of other amendments to show the process has always been messy. When the 14th Amendment — which granted citizenship and other legal protections to Black Americans — was added to the Constitution, a handful of states rescinded their ratification votes. Congress still included those states in the final tally needed to add it to the Constitution. (Some states have also rescinded their support for the ERA.)

The 27th Amendment, which stated rules for congressional pay, was added to the Constitution in the early 1990s, more than 200 years after Congress ratified it. Legal experts at the time raised questions about its inclusion to the Constitution, but enough members of Congress asserted collective agreement despite the lapse in time.

David Pozen, a law professor at Columbia Law School who also serves on an academic advisory council for the ERA Project, has written about the ambiguity of the rules under Article V of the Constitution, which defines how an amendment can be added. He has argued Congress has the power to take action regarding constitutional amendments.

Pozen said the more members of Congress back the ERA, the more the public will accept it is a part of the Constitution. There is a subjectivity over what exact action Congress must take now — whether it’s majority votes in both chambers or supermajority votes — to turn the tide in terms of acknowledging the amendment.

“There will be no magic moment when it’s like, ‘Oh, now the ERA is in there, now it’s the 28th Amendment,’ Pozen told The 19th. “Because there never is. It’s a much more diffused, complex process of just Americans acting as if something has made it across the line.”