46 Senate Republicans vote against constitutional amendment guaranteeing gender equality

Fifty-one senators voted on Thursday for a resolution that would have eliminated a past deadline for ratification of the Equal Rights Amendment and effectively deemed it ratified. But 46 Republicans voted to filibuster the legislation, leaving the constitutional amendment in limbo.

“We are here to stand united, and inch by inch restore, fight for, and expand women’s rights so that the women of today and the generations of tomorrow will not know a future with less access than their mothers had. The ratification of the Equal Rights Amendment would finally provide a constitutional remedy against sex discrimination – pushing our country one step closer to finally achieving equal justice under the law,” said Senate Majority Leader Chuck Schumer in a press release posted by Senate Democratic caucus on Monday, urging approval of the resolution to lift a previous deadline for its ratification by the states and recognize it as a valid constitutional amendment.

Schumer changed his vote to no at the last minute for procedural reasons, explaining that doing so would allow him to move to reconsider and bring the resolution up again in the future.

“It has been exactly 100 years since the first ERA was proposed in Congress. American women cannot afford to wait 100 more,” Schumer said.

“Women should have equal treatment to men under the law & Congress should do all it can to ensure the ERA is finally made part of the Constitution—it is long overdue,” Alaska Republican Sen. Lisa Murkowski, the lead co-sponsor of the resolution, tweeted in March.

In 1972, Congress approved and sent to the states for ratification a proposed Equal Rights Amendment:

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.

It also attached a seven-year deadline for three-quarters of the states to approve it, though the deadline language was not included in the amendment’s text itself.

In 1978, after 35 of the necessary 38 state legislatures had voted in favor of ratification, Congress passed a bill to extend the deadline until June 1982. Opponents challenged the extension in court, but before the Supreme Court could weigh in on the matter, the deadline expired and the case was dismissed as moot.

In recent years, advocates have tried to revive the effort, questioning whether the deadline set by Congress was valid if it was not in the amendment’s text. Between 2017 and 2020, Nevada, Illinois, and Virginia each voted to ratify the amendment, bringing the total to 38 states.

The Department of Justice under President Donald Trump in 2020 and President Joe Biden in 2022 deemed the expiration date valid and the constitutional amendment not ratified.

In February 2020, the Democratic-led House of Representatives approved a resolution to eliminate the 1982 deadline by a vote of 232-183. A similar resolution passed the House again by a vote of 222-204 in March 2021. Neither got a Senate vote.

Republicans have attacked the current proposal to eliminate the deadline for ratification, arguing both that it is too late to revive the amendment and that its language explicitly banning sex discrimination would harm women.

According to a press release posted to her official website in February, Mississippi Sen. Cindy Hyde-Smith opposes the Equal Rights Amendment on the grounds that “1.) ERA ratification would nullify existing protections for women; 2.) Amendment advocates’ true motive is to use the ERA to enshrine the right to an abortion in the Constitution; and 3.) Efforts to retroactively revive an expired 1972 ERA is [sic] unconstitutional.”

“I am particularly concerned about the privacy and safety for women and girls that the Equal Rights Amendment would destroy,” Hyde-Smith said in the press release. “Locker rooms, prisons, hospital rooms, domestic violence shelters, and restrooms would all allow men into areas where women should feel safe and protected.”

Utah Sen. Mike Lee raised concerns that the amendment would require all prisons to be coed. “So what might this do for sex-segregated prisons, prisons for women? What might this do for government sponsors, government funded, and operated shelters for abused women, for example?” he asked Independent Women’s Law Center director Jennifer Braceras, a GOP witness testifying in opposition to the resolution and the ERA.

“So protections in law, state and federal, as they now exist, protections put in place for women, reflecting biological differences between men and women, based on differences between men and women,” Lee continued, “would be at stake, they would be jeopardized, they would be threatened, and in many cases undone through judicial order?”

Roberta Francis, a consultant for the Alice Paul Institute, a nonprofit that promotes gender equality, states on a website dedicated to the amendment that federal courts have already found that segregated single-sex institutions are unconstitutional if they are designed to hurt women: “Thus single-sex institutions whose aim is to perpetuate the historic dominance of one sex over the other are already unconstitutional, while single-sex institutions that work to overcome past discrimination are constitutional now and, if the courts choose, could remain so under an ERA.”

A May 2022 Data for Progress survey found 85% of likely voters support Congress passing a new draft of the Equal Rights Amendment, while 10% oppose it.

Published with permission of The American Independent Foundation.