On August 6, 2024, the American Bar Association’s House of Delegates presented Resolution #601, which declared full support for the implementation of the Equal Rights Amendment (ERA), listing the constitutional reasons why equal rights on the basis of sex should finally become the recognized 28th Amendment to the Constitution. “The resolution passed by acclamation, with one lone male voice voting against the resolution out of 546 delegates representing states, ABA sections and divisions, state and local bar associations and specialty bar associations,” Carrie N. Baker reported in MS Magazine.
But wait, didn’t the ERA pass in 2020? Yes and no. While Virginia passed it, becoming the 38th state to ratify the amendment, it has languished in the office of the National Archivist, who must verify the ratifications and formally proclaim the amendment to be valid and part of the Constitution. Once certified, the ERA becomes the law of the land and functions as the most powerful support of equality based on sex—including equal pay and equal opportunities of all kinds, most importantly, protecting the rights and freedom of everyone and prohibiting discrimination on the basis of sex.
The wording of the ERA is deceptively simple:
“Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
Once Virginia was on board, the ERA had met the requirements originally set by the Constitution and should have become law. However, the Trump administration blocked it with a memo saying that, considering the time limit, it had “expired.”
There are too many arguments and complex history about this to go into details here, but simply put, the ABA’s Resolution supports ERA implementation within the guidelines of Article 5 of the Constitution, which only has two requirements, “approval by two-thirds of both chambers of Congress, and ratification by three-fourths (38) of the states.” No time restrictions or opportunities for rescinding a vote (which six states have done) are listed.
The ABA is the largest organization of volunteer legal professionals in the world, with 400 members. They have made resolutions regarding the ERA before, but now, when women’s rights are on the ballot in the 2024 election, they see the ERA as more important than ever before. Resolution #601 points out that the patchwork of laws cobbled together by Congress to prohibit discrimination on the basis of sex can easily be overturned, picked apart and diminished, unlike an over-arching Constitutional Amendment.
The United Nations recently spoke out against the lack of constitutional protection for discrimination on the basis of sex and gender, noting that 85% of its 194 member countries have this basic human right protection, which is beyond embarrassing for a “world leader.” It positions the U.S. in violation of international law. Equality Now summarizes the issue, “A lack of constitutional equality contravenes one of the most fundamental international human rights principles of equality and non-discrimination, which all States have an obligation and duty to respect, protect, and fulfill, including through formal protection in their constitutions.” In fact, the UN also points out that all countries that have passed constitutional amendments since 1948 (WWII) contain equal rights on the basis of sex, except the U.S.
The ABA warns of the imminent risks to human rights caused by the nature of the “originalists on the Supreme Court” and others who argue that our founding fathers did not intend for the 14th Amendment to cover sex. It was only intended as a guarantee of equal citizenship to formerly enslaved persons after the Civil War. Famously, in 2010, the late Supreme Court Justice Antonin Scalia stated: “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what [the 14th Amendment] meant.” This opinion has become even more significant since the recent decision to overturn Dobbs, and considering how the U.S. lags behind other countries.
With the passage of Resolution #601, the ABA urged all levels of government to act within the tenets of the ERA. According to the Constitution, it has passed and can and should be used as the foundation for equal rights for all. After she stepped down as ABA president at the end of the ABA Chicago meeting, Mary Smith expressed her concern, along with other supporters, that protections formerly provided by the 14th Amendment would be rolled back. “We’ve seen the Supreme Court roll back protections that had been in existence for decades,” said Smith. She also emphasized the importance of the ERA: “It is foundational to democracy that women have equal rights to fully participate in our democracy. We make up half of the population but unfortunately, we’re lagging in so many areas like equal pay and equal representation in the legal profession.” And finally, as an indigenous person, Smith added, “Any law that strengthens the rights of women lifts all women up, whether they’re Indigenous, Black, Asian, Hispanic. The ERA lifts all of us up.”