Equal Rights Amendment fails again as Senate GOP mounts filibuster

The Equal Rights Amendment died another death Thursday after the Senate failed to muster the votes needed to resuscitate it.

Republicans successfully filibustered to block a measure that would have declared the ERA fully ratified and officially the 28th Amendment of the Constitution, despite the fact that the ratification deadline expired decades ago.

Democrats’ attempt to overcome the filibuster mustered 51 votes, or nine shy of the number needed to surmount the filibuster and bring the measure to the Senate floor.

Senate Majority Leader Charles E. Schumer, who set up the showdown, cast the vote as another test of abortion rights in the wake of last year’s Supreme Court decision to overturn Roe v. Wade.

“We must act now because the Equal Rights Amendment has never been more necessary than today,” the New York Democrat said.

Sen. Lisa Murkowski, Alaska Republican and another backer, saw different needs. She pointed to disparities in pay and levels of domestic violence as reasons to approve the amendment.

But she also jabbed Mr. Schumer for the “timing” of the vote, saying it never had a chance to pass and he had tucked it into the schedule as “filler” for an otherwise empty day on the Senate floor.

“I don’t see how the ERA or women in this country will ultimately benefit from that,” she said.

She and Sen. Susan M. Collins of Maine were the only Republicans supporting the measure.

Mr. Schumer, also a backer, switched his vote to “No” at the last minute as a parliamentary tactic. Since he was on the winning side, he now can ask for a revote at some point.

Opponents said they feared wide-ranging consequences if the amendment were ratified.

“Adding the Equal Rights Amendment to the Constitution would undo many of the rights won by women over the last 50 years,” said Rep. Cindy Hyde-Smith, Mississippi Republican and chair of the Senate Pro-Life Caucus. “The painful side effects for religious liberties, pro-life protections, and other issues would be far-reaching as well.”

The ERA’s key text reads: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

Supporters say it will strip away remaining vestiges of sex discrimination. Opponents say the law, and court decisions, already require equality. They see the ERA as a backdoor attempt to enshrine abortion rights in every state.

It’s unclear how the amendment would affect the relatively recent push for transgender rights.

The ERA cleared Congress in 1972 and was sent to the states with a deadline of 1979 for obtaining ratification by the requisite three-fourths of states.

Just 35 of the needed 38 had ratified the amendment by 1979. Congress approved a three-year extension of the deadline, but the 1982 deadline came and went with no new ratifications.

In 2017, Nevada belatedly voted for approval, followed by Illinois in 2018 and Virginia in 2020. ERA backers said that was enough to put them over, but that argument has been rejected by federal courts that have ruled the deadline has passed.

Mr. Schumer suggested the deadline was an inconvenience that Congress should brush aside.

“The states did the work, but just not in the required time that was imposed on them a very long time ago,” he said.

After Virginia’s ratification, ERA backers argued to courts recently that the deadline was never really binding, Two courts have now rejected that argument.

It’s unclear how they would grapple with an after-the-fact attempt by Congress to erase the deadline.

Given the Senate’s failure, they won’t have to face the issue.

But even if the measure had cleared, there are other legal questions surrounding the amendment.

Chief among those is the actual number of states that have ratified. At least four states that did vote to ratify the ERA actually passed resolutions revoking that ratification before the 1979 deadline passed. A fifth state passed a resolution making clear that its ratification expired at the deadline.

ERA backers argue that post-deadline ratifications should be counted, while revocations — even those that happened within the original deadline — should be ignored.

Curiously Illinois, one of the late ratifiers that argues revocations should be ignored, passed its own revocation of another amendment, the Civil War-era Corwin Amendment, just last year.

The revocation was largely symbolic, since the Corwin Amendment dealt with restricting the abolition of slavery. But the act of passing a revocation on one amendment, even while arguing to courts that revocation of another amendment is unlawful, underscores the tricky position ERA backers find themselves in.