American Bar Association Urges Legal Community to Recognize and Implement ERA – Women’s eNews

At the American Bar Association’s annual meeting last August, the association’s House of Delegates passed Resolution 601, which affirmed the ratification of the Equal Rights Amendment (ERA) as the 28th Amendment to the U.S. Constitution. The resolution, which was adopted by an overwhelming majority, calls for the full recognition and implementation of the ERA by the legal community and all levels of government.

With more than 400,000 members, the American Bar Association describes itself as the “world’s largest voluntary association of lawyers” and “the national voice of the legal profession.” What they have to say about the ERA matters to the legal community in the United States, and they are using this influence to express their overwhelming support for the ERA through this resolution.

The resolution was adopted with four main points:

1. The ABA supports the principle that any deadline for ratification of an amendment to the U.S. Constitution is inconsistent with Article V of the Constitution.
2. The ABA supports the principle that Article V does not permit a state to withdraw its ratification of an amendment.
3. The ABA urges all levels of government to support the implementation of the ERA in the Constitution.
4. The ABA urges all bar associations and the legal community to support implementation of the ERA.

Senator Kristin Gillibrand, a long-time advocate and supporter of the ERA, posted on her Instagram @kristengillibrand a statement in support of the decision, which read: “This is BIG news – the leading association for legal minds has just endorsed our position that the Equal Rights The amendment has met all constitutional requirements and calls on the entire legal community to support the certification and promulgation of the ERA as our 28th Amendment.” As CEO of the ERA Coalition, Zakiyah Thomas also expressed her support for the ABA’s decision: “I applaud the ABA for taking this step and being proactive in ensuring that everyone in this country is protected by the law against discrimination.”

The overwhelming support from women’s rights activists for the ABA’s decision underlines its importance in the fight for the EWC. The ABA’s resolution, with its accompanying 15-page report, not only demonstrates the legal community’s support for the ERA, but also provides advocates with robust legal arguments that will strengthen their case.

What does this mean and why does it matter?

The ABA’s report makes the case for the importance of the ERA in light of an increasingly conservative Supreme Court that endorses a theory of originalism. The document describes current sex discrimination protections as a “patchwork” of federal and state laws subject to the political whims of the Supreme Court and Congress. They call the overthrow of Roe v. Wade in Dobbs as evidence that the Supreme Court could reverse even more hard-fought victories for women’s rights. Above all the Dobbs The decision highlights how the lack of robust constitutional protections for women can – and does – put them at risk. SCOTUS overturned Roe V Wade because he could, and because the Constitution did not protect women well enough.

Nevertheless, this report represents the ABA formally joining many organizations working in support of the ERA. fully recognized as the 28th Amendment. The resolution describes various steps for the implementation of, among others, the resolution chief:

1. Write letters to Congress
2. Writing letters from the executive branch
3. Filing briefs in the Supreme Court of the United States and the courts of appeals
4. Advocating for the United Nations
5. Educating the public

This means that the ABA is now calling on its members to join the fight for the ERA.

ABA, ERA and the 2024 elections

The ABA has long been a supporter of the ERA; previous resolutions were passed in 1972, 1974 and 2016, but the timing of this latest resolution is not coincidental. Karol Corbin Walker, chair of the ABA Committee on Women in the Profession, who introduced the resolution, concluded by emphasizing the critical importance of safeguarding the Equal Rights Amendment: “Especially in this momentous presidential election year, with the rights of women on the ballot, the ABA must be prepared to address the procedural issues that continue to be raised regarding the recognition of the ERA as the 28th Amendment to the U.S. Constitution.”

Ultimately, the ABA resolution reflects a much larger concern for the ERA ahead of the 2024 presidential election. Elections have consequences,” Thomas added. “It is not partisan when I say that we currently have two presidential candidates and two vice presidential candidates, one of whom has supported the Equal Rights Amendment. They voted for or co-sponsored legislation and the others voted against it or were the reason it was blocked in the first place.”

Understanding the ERA

The Constitution of the United States establishes citizens’ rights to freedom of speech, press, assembly, and the right to bear arms, among many other rights and freedoms. But something the U.S. Constitution does not formally protect against is discrimination based on sex or gender. In fact, the United States is “a global outlier,” says Kathleen Sullivan, because it is the only “major written constitution… that lacks a provision declaring equality of the sexes.”

In 1923, the Equal Rights Amendment was first introduced to Congress by Alice Paul to correct this issue with one simple sentence:

“Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

Yet the Equal Rights Amendment was never included in the Constitution at the time, and has since faced obstacles over the past hundred years. But with the 2024 elections just three weeks away, a critical moment has arrived for women’s rights in the United States. The outcome of this election could pave the way for the ERA to be fully recognized as the 28th Amendment, otherwise women’s legal rights could come under closer scrutiny. Now is the time, perhaps more than ever before, to ensure that the ERA is fully recognized as the 28th Amendment, without any more obstacles standing in the way.

Why didn’t the ERA become the 28th Amendment?

The ERA first had to overcome the strict requirements for ratifying a constitutional amendment set forth in Article V of the Constitution. Initially, the ERA required approval from two-thirds of both chambers of Congress. After this, it proceeded to the ratification process, which requires the approval of three-quarters (38) of the states. Against all odds, the ERA met the first requirement in 1971 when it was passed by the House of Representatives, followed by Senate approval just a year later. Unfortunately, the ERA subsequently stalled in the ratification process because it was subject to a seven-year deadline that Congress had set in the amendment’s preamble. In 1977, with only two years to go before the deadline, only 35 states had ratified the treaty. Congress then decided to extend the deadline for three years (until 1982), but no additional state ratifications were made, eliminating the ERA’s chances of being fully recognized as the 28th Amendment.

The ERA was at an impasse until 2017, when Nevada ratified the amendment amid a resurgence in women’s rights activism. Nevada was followed by Illinois in 2018 and then Virginia, which became the coveted 38th ratification of the amendment. Suddenly, nearly fifty years after the ERA was first passed by Congress, the ERA met all the constitutional requirements to be fully recognized as the 28th Amendment to the U.S. Constitution. But it didn’t happen and it still hasn’t happened.

Why?

The ERA was first blocked by the Trump administration’s Justice Department’s Office of Legal Council when they issued a memo dismissing the recent ratifications as invalid because they did not meet Congress’s 1982 deadline. Since then, women’s rights groups have rallied around the Equal Rights Amendment, calling for its recognition as the 28th Amendment. One group is the ERA Coalition, which unites more than 300 of these organizations in support of the cause. Zakiyah Thomas, CEO of the Coalition, emphasizes the significance of the amendment, saying: “The Equal Rights Amendment will actually do something; it is a promise of a better future where everyone in this country is treated equally under the law.”

Despite these efforts, the ERA continues to be blocked by opponents who argue against its implementation for two main reasons:

1. Congress’s seven-year ratification deadline (along with the three-year extension) invalidated the ERA’s last ratifications.
2. Six states (Nebraska Tennessee, Idaho, Kentucky and South Dakota) have validly withdrawn their ratifications.

But hope is not lost. The ratification of Resolution 601 by the American Bar Association is proof of this. It has provided advocates with powerful legal tools to strengthen their defense and support of the ERA, regardless of the outcome of the election. More importantly, the ABA resolution is a clear recognition that women in the United States deserve full constitutional protection – not just during election years, but every year thereafter. The EWC is not a temporary issue; it is an ongoing necessity to guarantee equal rights for all.

About the author: Danielis Morales is a fellow in the Sy Syms Journalistic Excellence Program* at Women’s eNews, funded by the Sy Syms Foundation. The Sy Syms Journalistic Excellence Program at Women’s eNews Fellowship supports editorial and development opportunities for editorial interns in the pursuit of journalistic excellence.

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