Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: The Equal Rights Amendment has been a work in progress
Speaker 1: for nearly a century, and it's back in the spotlight again.
Speaker 1: Last month, Virginia voted to ratify the amendment, becoming the
Speaker 1: thirty eight and final state needed, and today the House
Speaker 1: passed a resolution to eliminate a n two deadline for
Speaker 1: states to ratify the e r A. Two cheers on
Speaker 1: this vote. The yea's are two hundred and thirty two.
Speaker 1: The names are one hundred and eighty three. The joint
Speaker 1: resolution is past. The sponsor of the bill, Representative Jackie
Speaker 1: Spear of California, said, there's no deadline for equality. Women
Speaker 1: want to be equal, and we want it in the Constitution.
Speaker 1: I am equal on this House floor with all of
Speaker 1: my male colleagues, but when I walk out, I have
Speaker 1: fewer rights and protections than them. I rise today because
Speaker 1: the women of America are done being second class citizens.
Speaker 1: We are done being paid less for our work, done
Speaker 1: being violated with impunity, done being discriminated against for our pregnancies,
Speaker 1: Done being discriminated against simply because we are women. The
Speaker 1: e R A is about equality. My guest is Julie Sook,
Speaker 1: a professor of sociology and dean for the Master's Programs
Speaker 1: at the City University of New York. So Julie, explain
Speaker 1: what the e r A would do. So, the e
Speaker 1: R A would add an amendment to the U s
Speaker 1: Constitution that guarantees equality of rights under the law without
Speaker 1: denial or abridgement on account of sex. And it's long
Speaker 1: been understood as an amendment that would grant equal citizenship
Speaker 1: status to women. So that's just fundamentally what it would
Speaker 1: actually do. And then there's this deeper question of what
Speaker 1: would it actually change about the law that we have
Speaker 1: now and the world that we inhabit, And I think
Speaker 1: that's a deeper question. Virginia, you was the thirty eight
Speaker 1: and final state needed for ratifying the e r A,
Speaker 1: but it was a little late in doing that. So
Speaker 1: explain the situation. So the Equal Rights Amendment was actually
Speaker 1: adopted by Congress in nineteen seventy two. It was drafted
Speaker 1: and introduced for about fifty years before nineteen seventy two.
Speaker 1: But the Constitution says that both houses of Congress have
Speaker 1: to adopt an amendment by a two thirds majority. In
Speaker 1: each House before it goes to the states for ratification,
Speaker 1: and so the Congress did not adopted until nineteen seventy two,
Speaker 1: and when it did that, it put a seven year
Speaker 1: deadline on ratification by the states. By the time you
Speaker 1: got to nineteen seventy seven, thirty five states had ratified,
Speaker 1: and currently you need thirty eight states in order to
Speaker 1: constitute the three fourths of the states that Article five
Speaker 1: of the Constitution requires. So the problem was that by
Speaker 1: nineteen seventy seven, which was about five years in, there
Speaker 1: were only thirty five ratifications, and Congress got worried rightly
Speaker 1: that they would not get to thirty eight by the deadline.
Speaker 1: So they extended the deadline once, and they extended it
Speaker 1: to two but the three ratifications that they were waiting
Speaker 1: for did not come in by night two, and so
Speaker 1: the e r A was long presumed dead after ninety two,
Speaker 1: but very interestingly, some states started ratifying it again in seventeen.
Speaker 1: Nevada ratified in seventeen, Illinois ratified in eighteen, and Virginia
Speaker 1: ratified it. So now we're at the magic number, which
Speaker 1: is thirty eight. But there remains a legal and political
Speaker 1: question as to whether or not those three states that
Speaker 1: ratified after the deadline should be counted. There are dueling
Speaker 1: lawsuits by states. Let's start with the three states that
Speaker 1: passed the e r A in ten, eighteen, and nineteen
Speaker 1: who are suing the national archivists. Virginia, Nevada, and Illinois
Speaker 1: are the three states that ratified in the twenty one century,
Speaker 1: and they are claiming in the lawsuit that the e
Speaker 1: r A should be recognized as part of the Constitution now.
Speaker 1: So they're suing the Archivist of the United States demanding
Speaker 1: that he add the e r A to the Constitution
Speaker 1: now on the theory that the deadline has no legal effect.
Speaker 1: And so their legal theory is that because Article five
Speaker 1: does not mention any deadlines, the Equal Rights Amendment has
Speaker 1: met the requirements that are actually mentioned in the text
Speaker 1: of the Constitution at Article five, which is two thirds
Speaker 1: of Congress in each house and three fourths of the
Speaker 1: states ratifying. So that is the argument that is being
Speaker 1: put forth there. They noted that the last amendment to
Speaker 1: be added in took more than two years to be
Speaker 1: ratified by thirty eight states. Yes, so that amendment was
Speaker 1: actually written by founding father James Madison himself, and it
Speaker 1: was proposed. It was adopted by both houses of Congress
Speaker 1: in seventeen eighty nine along with the original Bill of Rights,
Speaker 1: but they didn't get enough states to ratify it in
Speaker 1: the eighteenth or nineteenth centuries, and then there was a
Speaker 1: movement that began ratifications all over again in the nineteen eighties,
Speaker 1: and they finally reached thirty eight ratifications in nineteen. The
Speaker 1: Justice Department's Office of Legal Council issued an opinion last
Speaker 1: month that told the National Archives it should not certify
Speaker 1: the e r A as they amendment tell us about
Speaker 1: that opinion. That opinion says, the legal opinion taken by
Speaker 1: the Justice Department is that the e r A is
Speaker 1: no longer open to ratification because of the deadline that
Speaker 1: lapsed in two and therefore the three states that ratified
Speaker 1: after that deadline should not be counted as ratified states.
Speaker 1: And therefore, if the e r A is going to
Speaker 1: be made into an amendment, Congress would have to go
Speaker 1: back to square one in passing it all over again
Speaker 1: by two thirds majority in both houses, and then you
Speaker 1: have to start the ratification process by the states all
Speaker 1: over again. So that is the Justice Department's position. It's
Speaker 1: a position with which, obviously to the three states that
Speaker 1: have ratified recently disagree, and that's the basis of their lawsuits.
Speaker 1: To my mind, the one question that remains is whether
Speaker 1: or not Congress has the power to put deadlines in
Speaker 1: and also to extend deadlines or remove deadlines under the Constitution.
Speaker 1: And I believe that Congress actually does have the power
Speaker 1: to control the ratification process, and I think it's that
Speaker 1: power that may give Congress the power to impose deadlines
Speaker 1: that would also give Congress the ability to remove a deadline.
Speaker 1: You mentioned legal and political reasons. Is the Justice Department's
Speaker 1: position more legal or political? Could a Justice Department under
Speaker 1: another president role differently, Yes, So I think whether it's
Speaker 1: legal or political, I believe that there are different reasonable
Speaker 1: positions that could be taken on this question, whether by
Speaker 1: a future Justice Department or even by a judge. So
Speaker 1: the Justice Department's position is that the deadline was valid
Speaker 1: and that it passed. And they've also taken the view
Speaker 1: that once a deadline passes, Congress is without power to
Speaker 1: change the deadline after it has passed. And I think
Speaker 1: that's the question on which there is a lot of
Speaker 1: reasonable disagreement. That is, Congress actually extended the deadline once already.
Speaker 1: Of course, that deadline extension happened in before the deadline passed.
Speaker 1: So it's this question of timing, and I don't think
Speaker 1: that the Constitution or even some of the precedents about
Speaker 1: deadlines on amendments offer a clear answer. Let's talk about
Speaker 1: the e r A itself and the arguments for and again,
Speaker 1: so what do advocates of the e r A say
Speaker 1: it will do. What are the implications of it? Well,
Speaker 1: I think the advocates fundamentally, I think it's important that
Speaker 1: a constitution recognize sex equality as a foundational principle in
Speaker 1: this nation's foundational document. I think that's the most important argument.
Speaker 1: And it's a fact that most constitutions around the world,
Speaker 1: and every constitution written after World War Two has language
Speaker 1: in it that explicitly speaks to sex equality or equality
Speaker 1: between women and men. And so that's something that I
Speaker 1: think that's extremely important. And there are many different things
Speaker 1: that it might do legally. One thing that it will
Speaker 1: do legally is prohibit discrimination on account of sex. Part
Speaker 1: of the disagreement as to whether that's really necessary in
Speaker 1: the U s Constitution, right now is that the fourteenth
Speaker 1: Amendment of the U. S Constitution, adopted after the Civil War,
Speaker 1: has an equal protection clause in it. It doesn't say
Speaker 1: anything about women or about gender or sex. But since
Speaker 1: the nineteen seventies, the Supreme Court has said that the
Speaker 1: Fourteenth Amendment prohibits sex discrimination. Even if you take the
Speaker 1: view that it does that there seems to be no
Speaker 1: harm in adding an amendment that also mentioned sex. I
Speaker 1: agree with you on that. I don't think there's any
Speaker 1: harm to it, and in fact, I would argue that
Speaker 1: it's also necessary to do it. And here's why. For
Speaker 1: a long time, people tried to bring lawsuits before judges
Speaker 1: and that eventually went up to the Supreme Court that
Speaker 1: challenged sex discrimination, and the courts said, but the Fourteenth
Speaker 1: Amendment did not prohibit sex discrimination in those cases. And
Speaker 1: they really just changed what they were doing in a
Speaker 1: huge way in the n seventies. And it wasn't the
Speaker 1: coincidence that the Supreme Court started recognizing sex discrimination as
Speaker 1: a constitutional problem at the very moment that the e r.
Speaker 1: A was gaining political traction in the House of Representatives.
Speaker 1: Was after the House of Representatives voted by an overwhelming
Speaker 1: majority to adopt the r A, and we were waiting
Speaker 1: for the Senate to act, but at that moment, the
Speaker 1: Supreme Court decided Read versus Read, which is the first
Speaker 1: case that says that sex classifications in the law should
Speaker 1: be scrutinized under the equal protection class of the Fourteenth Amendment.
Speaker 1: So I think one of the things that the the
Speaker 1: r A would do that's very important is to recognize
Speaker 1: the work that the e r A has already done
Speaker 1: to change the Constitution. And a lot of that work
Speaker 1: has been done by women as constitution makers. There were
Speaker 1: women in Congress who advocated fiercely for the Equal Rights
Speaker 1: Amendment against a lot of opposition, uh, and then there
Speaker 1: were women who advocated in those Supreme Court cases like
Speaker 1: Read versus Read to recognize sex discrimination as a principle
Speaker 1: under the Fourteenth Amendment. And I think that work has
Speaker 1: gone kind of invisible and unrecognized in the text of
Speaker 1: our constitution, and the e r A is really needed
Speaker 1: to acknowledge the contributions of women as constitution makers and
Speaker 1: acknowledge the process by which sex equality has become an
Speaker 1: important constitutional value. So it will have symbolic value as
Speaker 1: well as legal value. Right and I think it's important
Speaker 1: to say symbolic as well as legal, not merely symbolic,
Speaker 1: because a story that I've just told with recognizing things
Speaker 1: that have already happened, I don't think of that as
Speaker 1: merely symbolic. I think that is actually legal. That is,
Speaker 1: we're acknowledging something that has changed, and we're recognizing the
Speaker 1: sources of that authority in the law. And I think
Speaker 1: doing that is very important for creating the legal conditions
Speaker 1: by which other important legal change can happen. One argument
Speaker 1: of opponents of the e r A is that it
Speaker 1: would quash state a board action restrictions. Is that the case, well,
Speaker 1: the Equal Rights Amendment says equality of rights under the
Speaker 1: law shall not be denied or abridged by the United
Speaker 1: States or any state on account of sex, and so
Speaker 1: the question would come up as to whether or not
Speaker 1: there are some abortion restrictions that amount to a denial
Speaker 1: of equal rights on account of sex. And I don't
Speaker 1: think that you can answer the question about every single
Speaker 1: abortion regulation that exists. But if there exists some abortion
Speaker 1: regulations that are based on gender stereotypes and uh work
Speaker 1: in a manner that actually amount to discrimination against women,
Speaker 1: then I think there is an argument that the Equal
Speaker 1: Rights Amendment is incompatible with some abortion restrictions. I do
Speaker 1: think that the debate has gotten a little confused because
Speaker 1: some of the opponents of the e r A suggests
Speaker 1: that every possible abortion regulation you could imagine would become
Speaker 1: invalid it, and I don't think that is true. But
Speaker 1: at the same time, I think it's important to recognize
Speaker 1: that reproductive justice is linked in important ways to equality
Speaker 1: for women, and that's something that's recognized by people who
Speaker 1: are both pro life and pro choice. Finally, there seemed
Speaker 1: to be a lot of obstacles to the e r A.
Speaker 1: What do you think the chances are that it will
Speaker 1: actually be added to the Constitution. I think in the
Speaker 1: long run, it will be added to the Constitution. I
Speaker 1: can't predict what the Senate will do. There is a
Speaker 1: bipartisan bill in the Senate as well. I don't know
Speaker 1: if it's going to move and if they will get
Speaker 1: enough votes, at least in this session. But I do
Speaker 1: think that this is the centennial year of the nineteenth Amendment,
Speaker 1: which gave women the right to vote, and a lot
Speaker 1: of the polling that has been done in states that
Speaker 1: had not ratified so there was a lot of polling
Speaker 1: in Virginia before Virginia ratified that suggested that of Virginians
Speaker 1: supported the e r A. I think there have been
Speaker 1: similar polls now in Utah suggesting that a majority, a
Speaker 1: healthy majority of Utah's UH support the r A. They
Speaker 1: haven't yet ratified, So given that there is popular support
Speaker 1: for the e r A, I do think that in
Speaker 1: this particular year, when we're celebrating women having the right
Speaker 1: to vote for a hundred years, there might be some
Speaker 1: political consequences for members of Congress who are not willing
Speaker 1: to remove the deadline in this election year. And I
Speaker 1: think that if that happens, then perhaps next year or
Speaker 1: the year after, there might be support in both Houses
Speaker 1: of Congress for removing the deadline. And I think if
Speaker 1: that happens, we will have an e r A that
Speaker 1: is added to the Constitution without its legitimacy is being questioned.
Speaker 1: Thanks for being on Bloomberg, lad Julie. That's Julie sifteen
Speaker 1: for the Master's Programs at the City University of New York.