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Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.

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Speaker 1: The Equal Rights Amendment has been a work in progress

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Speaker 1: for nearly a century, and it's back in the spotlight again.

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Speaker 1: Last month, Virginia voted to ratify the amendment, becoming the

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Speaker 1: thirty eight and final state needed, and today the House

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Speaker 1: passed a resolution to eliminate a n two deadline for

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Speaker 1: states to ratify the e r A. Two cheers on

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Speaker 1: this vote. The yea's are two hundred and thirty two.

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Speaker 1: The names are one hundred and eighty three. The joint

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Speaker 1: resolution is past. The sponsor of the bill, Representative Jackie

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Speaker 1: Spear of California, said, there's no deadline for equality. Women

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Speaker 1: want to be equal, and we want it in the Constitution.

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Speaker 1: I am equal on this House floor with all of

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Speaker 1: my male colleagues, but when I walk out, I have

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Speaker 1: fewer rights and protections than them. I rise today because

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Speaker 1: the women of America are done being second class citizens.

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Speaker 1: We are done being paid less for our work, done

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Speaker 1: being violated with impunity, done being discriminated against for our pregnancies,

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Speaker 1: Done being discriminated against simply because we are women. The

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Speaker 1: e R A is about equality. My guest is Julie Sook,

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Speaker 1: a professor of sociology and dean for the Master's Programs

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Speaker 1: at the City University of New York. So Julie, explain

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Speaker 1: what the e r A would do. So, the e

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Speaker 1: R A would add an amendment to the U s

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Speaker 1: Constitution that guarantees equality of rights under the law without

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Speaker 1: denial or abridgement on account of sex. And it's long

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Speaker 1: been understood as an amendment that would grant equal citizenship

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Speaker 1: status to women. So that's just fundamentally what it would

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Speaker 1: actually do. And then there's this deeper question of what

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Speaker 1: would it actually change about the law that we have

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Speaker 1: now and the world that we inhabit, And I think

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Speaker 1: that's a deeper question. Virginia, you was the thirty eight

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Speaker 1: and final state needed for ratifying the e r A,

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Speaker 1: but it was a little late in doing that. So

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Speaker 1: explain the situation. So the Equal Rights Amendment was actually

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Speaker 1: adopted by Congress in nineteen seventy two. It was drafted

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Speaker 1: and introduced for about fifty years before nineteen seventy two.

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Speaker 1: But the Constitution says that both houses of Congress have

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Speaker 1: to adopt an amendment by a two thirds majority. In

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Speaker 1: each House before it goes to the states for ratification,

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Speaker 1: and so the Congress did not adopted until nineteen seventy two,

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Speaker 1: and when it did that, it put a seven year

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Speaker 1: deadline on ratification by the states. By the time you

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Speaker 1: got to nineteen seventy seven, thirty five states had ratified,

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Speaker 1: and currently you need thirty eight states in order to

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Speaker 1: constitute the three fourths of the states that Article five

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Speaker 1: of the Constitution requires. So the problem was that by

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Speaker 1: nineteen seventy seven, which was about five years in, there

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Speaker 1: were only thirty five ratifications, and Congress got worried rightly

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Speaker 1: that they would not get to thirty eight by the deadline.

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Speaker 1: So they extended the deadline once, and they extended it

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Speaker 1: to two but the three ratifications that they were waiting

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Speaker 1: for did not come in by night two, and so

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Speaker 1: the e r A was long presumed dead after ninety two,

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Speaker 1: but very interestingly, some states started ratifying it again in seventeen.

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Speaker 1: Nevada ratified in seventeen, Illinois ratified in eighteen, and Virginia

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Speaker 1: ratified it. So now we're at the magic number, which

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Speaker 1: is thirty eight. But there remains a legal and political

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Speaker 1: question as to whether or not those three states that

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Speaker 1: ratified after the deadline should be counted. There are dueling

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Speaker 1: lawsuits by states. Let's start with the three states that

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Speaker 1: passed the e r A in ten, eighteen, and nineteen

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Speaker 1: who are suing the national archivists. Virginia, Nevada, and Illinois

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Speaker 1: are the three states that ratified in the twenty one century,

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Speaker 1: and they are claiming in the lawsuit that the e

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Speaker 1: r A should be recognized as part of the Constitution now.

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Speaker 1: So they're suing the Archivist of the United States demanding

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Speaker 1: that he add the e r A to the Constitution

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Speaker 1: now on the theory that the deadline has no legal effect.

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Speaker 1: And so their legal theory is that because Article five

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Speaker 1: does not mention any deadlines, the Equal Rights Amendment has

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Speaker 1: met the requirements that are actually mentioned in the text

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Speaker 1: of the Constitution at Article five, which is two thirds

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Speaker 1: of Congress in each house and three fourths of the

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Speaker 1: states ratifying. So that is the argument that is being

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Speaker 1: put forth there. They noted that the last amendment to

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Speaker 1: be added in took more than two years to be

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Speaker 1: ratified by thirty eight states. Yes, so that amendment was

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Speaker 1: actually written by founding father James Madison himself, and it

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Speaker 1: was proposed. It was adopted by both houses of Congress

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Speaker 1: in seventeen eighty nine along with the original Bill of Rights,

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Speaker 1: but they didn't get enough states to ratify it in

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Speaker 1: the eighteenth or nineteenth centuries, and then there was a

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Speaker 1: movement that began ratifications all over again in the nineteen eighties,

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Speaker 1: and they finally reached thirty eight ratifications in nineteen. The

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Speaker 1: Justice Department's Office of Legal Council issued an opinion last

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Speaker 1: month that told the National Archives it should not certify

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Speaker 1: the e r A as they amendment tell us about

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Speaker 1: that opinion. That opinion says, the legal opinion taken by

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Speaker 1: the Justice Department is that the e r A is

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Speaker 1: no longer open to ratification because of the deadline that

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Speaker 1: lapsed in two and therefore the three states that ratified

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Speaker 1: after that deadline should not be counted as ratified states.

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Speaker 1: And therefore, if the e r A is going to

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Speaker 1: be made into an amendment, Congress would have to go

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Speaker 1: back to square one in passing it all over again

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Speaker 1: by two thirds majority in both houses, and then you

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Speaker 1: have to start the ratification process by the states all

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Speaker 1: over again. So that is the Justice Department's position. It's

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Speaker 1: a position with which, obviously to the three states that

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Speaker 1: have ratified recently disagree, and that's the basis of their lawsuits.

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Speaker 1: To my mind, the one question that remains is whether

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Speaker 1: or not Congress has the power to put deadlines in

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Speaker 1: and also to extend deadlines or remove deadlines under the Constitution.

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Speaker 1: And I believe that Congress actually does have the power

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Speaker 1: to control the ratification process, and I think it's that

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Speaker 1: power that may give Congress the power to impose deadlines

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Speaker 1: that would also give Congress the ability to remove a deadline.

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Speaker 1: You mentioned legal and political reasons. Is the Justice Department's

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Speaker 1: position more legal or political? Could a Justice Department under

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Speaker 1: another president role differently, Yes, So I think whether it's

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Speaker 1: legal or political, I believe that there are different reasonable

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Speaker 1: positions that could be taken on this question, whether by

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Speaker 1: a future Justice Department or even by a judge. So

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Speaker 1: the Justice Department's position is that the deadline was valid

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Speaker 1: and that it passed. And they've also taken the view

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Speaker 1: that once a deadline passes, Congress is without power to

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Speaker 1: change the deadline after it has passed. And I think

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Speaker 1: that's the question on which there is a lot of

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Speaker 1: reasonable disagreement. That is, Congress actually extended the deadline once already.

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Speaker 1: Of course, that deadline extension happened in before the deadline passed.

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Speaker 1: So it's this question of timing, and I don't think

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Speaker 1: that the Constitution or even some of the precedents about

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Speaker 1: deadlines on amendments offer a clear answer. Let's talk about

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Speaker 1: the e r A itself and the arguments for and again,

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Speaker 1: so what do advocates of the e r A say

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Speaker 1: it will do. What are the implications of it? Well,

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Speaker 1: I think the advocates fundamentally, I think it's important that

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Speaker 1: a constitution recognize sex equality as a foundational principle in

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Speaker 1: this nation's foundational document. I think that's the most important argument.

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Speaker 1: And it's a fact that most constitutions around the world,

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Speaker 1: and every constitution written after World War Two has language

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Speaker 1: in it that explicitly speaks to sex equality or equality

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Speaker 1: between women and men. And so that's something that I

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Speaker 1: think that's extremely important. And there are many different things

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Speaker 1: that it might do legally. One thing that it will

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Speaker 1: do legally is prohibit discrimination on account of sex. Part

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Speaker 1: of the disagreement as to whether that's really necessary in

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Speaker 1: the U s Constitution, right now is that the fourteenth

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Speaker 1: Amendment of the U. S Constitution, adopted after the Civil War,

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Speaker 1: has an equal protection clause in it. It doesn't say

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Speaker 1: anything about women or about gender or sex. But since

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Speaker 1: the nineteen seventies, the Supreme Court has said that the

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Speaker 1: Fourteenth Amendment prohibits sex discrimination. Even if you take the

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Speaker 1: view that it does that there seems to be no

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Speaker 1: harm in adding an amendment that also mentioned sex. I

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Speaker 1: agree with you on that. I don't think there's any

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Speaker 1: harm to it, and in fact, I would argue that

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Speaker 1: it's also necessary to do it. And here's why. For

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Speaker 1: a long time, people tried to bring lawsuits before judges

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Speaker 1: and that eventually went up to the Supreme Court that

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Speaker 1: challenged sex discrimination, and the courts said, but the Fourteenth

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Speaker 1: Amendment did not prohibit sex discrimination in those cases. And

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Speaker 1: they really just changed what they were doing in a

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Speaker 1: huge way in the n seventies. And it wasn't the

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Speaker 1: coincidence that the Supreme Court started recognizing sex discrimination as

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Speaker 1: a constitutional problem at the very moment that the e r.

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Speaker 1: A was gaining political traction in the House of Representatives.

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Speaker 1: Was after the House of Representatives voted by an overwhelming

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Speaker 1: majority to adopt the r A, and we were waiting

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Speaker 1: for the Senate to act, but at that moment, the

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Speaker 1: Supreme Court decided Read versus Read, which is the first

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Speaker 1: case that says that sex classifications in the law should

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Speaker 1: be scrutinized under the equal protection class of the Fourteenth Amendment.

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Speaker 1: So I think one of the things that the the

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Speaker 1: r A would do that's very important is to recognize

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Speaker 1: the work that the e r A has already done

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Speaker 1: to change the Constitution. And a lot of that work

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Speaker 1: has been done by women as constitution makers. There were

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Speaker 1: women in Congress who advocated fiercely for the Equal Rights

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Speaker 1: Amendment against a lot of opposition, uh, and then there

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Speaker 1: were women who advocated in those Supreme Court cases like

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Speaker 1: Read versus Read to recognize sex discrimination as a principle

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Speaker 1: under the Fourteenth Amendment. And I think that work has

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Speaker 1: gone kind of invisible and unrecognized in the text of

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Speaker 1: our constitution, and the e r A is really needed

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Speaker 1: to acknowledge the contributions of women as constitution makers and

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Speaker 1: acknowledge the process by which sex equality has become an

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Speaker 1: important constitutional value. So it will have symbolic value as

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Speaker 1: well as legal value. Right and I think it's important

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Speaker 1: to say symbolic as well as legal, not merely symbolic,

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Speaker 1: because a story that I've just told with recognizing things

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Speaker 1: that have already happened, I don't think of that as

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Speaker 1: merely symbolic. I think that is actually legal. That is,

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Speaker 1: we're acknowledging something that has changed, and we're recognizing the

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Speaker 1: sources of that authority in the law. And I think

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Speaker 1: doing that is very important for creating the legal conditions

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Speaker 1: by which other important legal change can happen. One argument

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Speaker 1: of opponents of the e r A is that it

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Speaker 1: would quash state a board action restrictions. Is that the case, well,

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Speaker 1: the Equal Rights Amendment says equality of rights under the

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Speaker 1: law shall not be denied or abridged by the United

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Speaker 1: States or any state on account of sex, and so

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Speaker 1: the question would come up as to whether or not

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Speaker 1: there are some abortion restrictions that amount to a denial

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Speaker 1: of equal rights on account of sex. And I don't

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Speaker 1: think that you can answer the question about every single

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Speaker 1: abortion regulation that exists. But if there exists some abortion

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Speaker 1: regulations that are based on gender stereotypes and uh work

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Speaker 1: in a manner that actually amount to discrimination against women,

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Speaker 1: then I think there is an argument that the Equal

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Speaker 1: Rights Amendment is incompatible with some abortion restrictions. I do

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Speaker 1: think that the debate has gotten a little confused because

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Speaker 1: some of the opponents of the e r A suggests

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Speaker 1: that every possible abortion regulation you could imagine would become

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Speaker 1: invalid it, and I don't think that is true. But

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Speaker 1: at the same time, I think it's important to recognize

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Speaker 1: that reproductive justice is linked in important ways to equality

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Speaker 1: for women, and that's something that's recognized by people who

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Speaker 1: are both pro life and pro choice. Finally, there seemed

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Speaker 1: to be a lot of obstacles to the e r A.

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Speaker 1: What do you think the chances are that it will

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Speaker 1: actually be added to the Constitution. I think in the

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Speaker 1: long run, it will be added to the Constitution. I

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Speaker 1: can't predict what the Senate will do. There is a

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Speaker 1: bipartisan bill in the Senate as well. I don't know

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Speaker 1: if it's going to move and if they will get

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Speaker 1: enough votes, at least in this session. But I do

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Speaker 1: think that this is the centennial year of the nineteenth Amendment,

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Speaker 1: which gave women the right to vote, and a lot

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Speaker 1: of the polling that has been done in states that

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Speaker 1: had not ratified so there was a lot of polling

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Speaker 1: in Virginia before Virginia ratified that suggested that of Virginians

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Speaker 1: supported the e r A. I think there have been

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Speaker 1: similar polls now in Utah suggesting that a majority, a

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Speaker 1: healthy majority of Utah's UH support the r A. They

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Speaker 1: haven't yet ratified, So given that there is popular support

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Speaker 1: for the e r A, I do think that in

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Speaker 1: this particular year, when we're celebrating women having the right

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Speaker 1: to vote for a hundred years, there might be some

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Speaker 1: political consequences for members of Congress who are not willing

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Speaker 1: to remove the deadline in this election year. And I

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Speaker 1: think that if that happens, then perhaps next year or

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Speaker 1: the year after, there might be support in both Houses

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Speaker 1: of Congress for removing the deadline. And I think if

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Speaker 1: that happens, we will have an e r A that

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Speaker 1: is added to the Constitution without its legitimacy is being questioned.

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Speaker 1: Thanks for being on Bloomberg, lad Julie. That's Julie sifteen

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Speaker 1: for the Master's Programs at the City University of New York.