Download The Equal Rights Amendment: Why It Still Matters and How It Will

The Chicago Bar Association Presents:
The Equal Rights Amendment:
Why It Still Matters and How It Will
Affect Our Future
Monday, October 31, 2016 12:00-2:10 p.m.
The Chicago Bar Association 321 S. Plymouth Court
Level of Instruction: Basic
Presented by: CBA/WBAI Task Force on Women & Aging, CBA Alliance for Women, YLS Women
in the Law, ISBA Standing Committee on Women and the Law and ABA Commission on Women in
the Profession
Join our panel for a timely program that will analyze the ERA & address many topics related to it, including:
 Origin of and advocacy for the ERA as a means to address gender inequities
 Results of previous efforts to pass the ERA here and in other states, & an update on the ERA Bill
passed in the Illinois Senate and introduced in the Illinois House
 Who will benefit-and how-if the Amendment becomes part of the U.S. Constitution
 Rationales voiced by ERA proponents and supporting data
 Objections that have been raised to its passage and data available to support and to counter those
objections
 Procedural steps necessary to pass the ERA now.
Speakers and Topics:
Program Introduction
Sharon Eiseman, Co-Chair, CBA/WBAI Joint Task Force on Women and Aging
Introduction to the ERA
Larry Suffredin, Cook County Board Commissioner, 13th District; Taft Stettinius & Hollister LLP
The History of the ERA
David Franklin, Solicitor General, Office of the Illinois Attorney General
The ERA in the Illinois Senate
Heather Steans, Illinois State Senator
The ERA in the Illinois House
Lou Lang, Illinois State Representative
Practicalities of Women’s Rights
Deane B. Brown, Hughes Socol Piers Resnick Dym, Ltd
Panel Discussion
Program Conclusion
Elizabeth Wells, Co-Chair, CBA/WBAI Joint Task Force on Women and Aging
FACULTY BIOS
DEANE BETH BROWN
Deane Beth Brown is a partner in the Chicago law firm of Hughes Socol Piers Resnick Dym, Ltd.
Ms. Brown, who has been practicing law for over 25 years, concentrates her practice in the area
of employment law, with an emphasis on severance negotiations for terminated executives,
employment discrimination issues, non-compete disputes, and executive compensation issues.
She also focuses on business litigation, legal ethics and professional responsibility. Ms. Brown
regularly represents attorneys before the Illinois Attorney Registration and Disciplinary
Commission and has been retained by attorneys and companies to prepare opinion letters on
various ethics issues.
Ms. Brown is extremely active in various bar associations and professional organizations. She
served as President of the Women’s Bar Association of Illinois in 2011-2012; President of the
Professional Women’s Club of Chicago in 2007; and is a founding member of the Exclusive
Professional Women’s Networking Group. Ms. Brown is the Third Vice President of the Illinois
Bar Foundation. In addition, she currently serves on the Assembly of the Illinois State Bar
Association and as Vice Chair of the Illinois State Bar Association’s Bench and Bar Section
Council. She previously served as Chair of the Illinois State Bar Association’s Standing
Committee on Professional Conduct and Vice Chair of the Illinois State Bar Association’s 2011
Standing Committee on Supreme Court Rules. Ms. Brown was appointed by the Chief Judge of
the United States District Court for the Northern District of Illinois to serve on the United States
Magistrate Merit Selection Panel and Merit Review Panel in 2012-2013.
Ms. Brown is listed in The Best Lawyers in America in the specialty of Ethics and Professional
Responsibility Law. For the fourth time, Ms. Brown was named to the list of Top 100 Lawyers in
Illinois in all practice areas in the 2016 Illinois Super Lawyers Magazine published in conjunction
with Chicago Magazine. In addition, Ms. Brown was named to list of Top 50 Women Lawyers in
Illinois for the seventh time in the 2016 Illinois Super Lawyers Magazine. She was also named
to the 2012 Top Rated Lawyers Guide to Labor & Employment Law published by The American
Lawyer and Corporate Counsel. Further, Ms. Brown was profiled in Leading Lawyers Network
Magazine – Women’s Edition for 2009, and she has been repeatedly listed in the Top 100
Leading Female Lawyers in Illinois as well as the Top 10 Leading Women Business Lawyers in
Illinois. In November 2015, Ms. Brown was presented with the Top Women Lawyers in
Leadership Award by the Women’s Bar Association of Illinois, and in 2012, Ms. Brown was
named by the Law Bulletin Publishing Company as one of 15 women attorneys in the legal
community making a unique impact on the profession.
Ms. Brown received her Juris Doctor degree from Boston University School of Law in 1990, her
Masters of Philosophy degree from the University of Cambridge, England in 1987, and her
Bachelor of Arts degree from The Johns Hopkins University in 1986.
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DAVID FRANKLIN
As Solicitor General of the Office of the Attorney General of Illinois, David Franklin oversees
more than 40 attorneys in Madigan’s Appellate Division who work on behalf of the state, its
officers and agencies. The Solicitor General oversees attorneys’ work in the U.S. Supreme Court,
Illinois Supreme Court and the federal and state appellate courts.
Prior to becoming Solicitor General, Franklin served as Associate Professor at DePaul University
College of Law teaching Constitutional Law, Administrative Law and Conflicts of Laws. He also
served as Vice Dean from 2011 to 2014. Franklin is also an Advisor to the American Law
Institute and previously was a law professor at the University of Michigan Law School, Benjamin
N. Cardozo School of Law at Yeshiva University, and George Washington University Law School.
Prior to becoming a law professor, Franklin practiced as an associate at Covington & Burling LLP
in New York.
Franklin clerked for Judge Stephen F. Williams of the United States Court of Appeals for the
District of Columbia Circuit and for Justice Ruth Bader Ginsburg of the United States Supreme
Court. He received his bachelor’s degree from Yale College and a J.D. from the University of
Chicago Law School.
LOU LANG
Since being elected to the Illinois House of Representatives in 1988, Lou Lang has established
himself as one of the Legislature's most effective leaders.
Representing the 16th District, which includes Lincolnwood, Morton Grove and Skokie and
portions of Chicago's West Ridge neighborhood, Lang, who currently serves as a Deputy
Majority Leader in the House, has fought for economic development, working families, civil
rights, and health care and Medicaid reform.
In 2009, Lang sponsored a six-year, $32 billion construction program to fix roads, bridges, and
schools across Illinois and is expected to create 439,000 new jobs by 2015.
Principally, Lang has stood by Illinois' working families. He has supported increases in the
minimum wage, opposed efforts to weaken worker compensation laws, and fought for laws to
increase property tax breaks for Cook County homeowners.
Lang has been a staunch defender of civil and equal rights for Illinois citizens. He is a strong
advocate for reproductive choice and is currently fighting to ratify the Equal Rights Amendment
in Illinois. Lang was also a proud co-sponsor of Illinois' new marriage equality law.
Lang also led the fight to reform the Illinois healthcare system and to cut state Medicaid
spending and waste by $1.7 billion. Lang successfully championed a new, strictly-regulated law
that will allow chronically ill individuals struggling with ailments, such as cancer, HIV/AIDS, and
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glaucoma, to receive medical marijuana, through their established doctor's prescription, to help
alleviate their pain and suffering.
Thanks to his his leadership, Lou Lang has won the admiration and respect of his peers in the
Legislature and his constituents at home. Lang has served in a number of critical positions in
House leadership, advancing to House Democratic Floor Leader in 1993, Assistant Majority
Leader in 1997, and Deputy Majority Leader in 2009.
Over the years, Lang has received numerous awards and recognition for his work. He was
named "Legislator of the Year" by the Illinois Hospital Association, the Illinois Council on Senior
Citizens, the Service Employees Union and the Illinois Public Action Council, among others.
Lang, a father of five, resides in Skokie with his wife, Teri.
HEATHER STEANS
Heather Steans has represented Illinois’ 7th District in the Senate since 2008. Currently, she
chairs the Appropriations I Committee, vice chairs the Environment Committee and serves on
the Executive, Appropriations II and Human Services committees. Steans has passed legislation
to bring marriage equality to Illinois, reform the state’s Medicaid program, enact significant
nursing home reform, and improve the environment by reducing mercury waste, creating
commercial composting capabilities and banning microbeads.
Heather Steans graduated from Princeton with a B.A. in Urban Studies and received her M.A. in
Public Policy from Harvard’s John F. Kennedy School of Government. Her professional career
has focused on government finance, economic development and education reform. She is the
former budget director of the Wisconsin Department of Industry, Labor and Human Relations,
served as a strategic planner with the Chicago Public Schools and was a consultant with Ernst &
Young. Steans has received numerous awards, including the Legislator of the Year Award from
AARP, the Richard Phelan Profile in Courage Award from Planned Parenthood, the Legislative
Recovery Award from Trilogy, and the Equality Illinois Freedom Award.
Heather Steans and her husband Leo have lived with their three children in the Edgewater
neighborhood of Chicago for 22 years.
LAWRENCE J. SUFFREDIN
Lawrence J. Suffredin is known for his broad knowledge of government and politics, and has a
strong emphasis on government relations work.
Larry is the Cook County Commissioner for the 13th District. Elected for the first time in 2002, he
represents 330,000 people living on the north side of Chicago and in Evanston, New Trier and
Niles Township. As a Board member he is Chair of the Legislative and Intergovernmental
Relations and Rules Committee. Larry has also been elected Evanston Township Democratic
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Committeeman, and has chaired both the Platform Committee and Presidential Delegate
Selection Committee of the Illinois Democratic Party.
Larry also has nearly three decades of extensive federal and state trial experience. He has
argued appellate cases before the United States and Illinois Supreme Courts as well as in the
U.S. Second and Seventh Circuits and three of the districts of the Illinois Appellate Court.
His practice has included lobbying and administrative practice at the local, state, and federal
levels. He has represented labor unions, large business associations, health care concerns,
cultural institutions, corporations, professional associations, local governments and individuals
in their interactions with various governmental units.
Before joining Taft Stettinius & Hollister LLP, Larry was a Cook County Public Defender, Federal
Defender Panel member and taught at John Marshall Law School as an adjunct professor.
Following his law school graduation he served as a Captain in the United States Air Force
Reserves, receiving an Honorable Discharge.
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THE EQUAL RIGHTS AMENDMENT:
Why It Still Matters and How It Will Affect Our Future
October 31, 2016 at the CBA
Introduction of ERA Topic:
In 1972, more than a half century after Alice Paul and one of her colleagues proposed an Equal
Rights Amendment to the U.S. Constitution (which she drafted) to guarantee gender equality in
this country, and due in part to the advocacy of the National Organization of Women (‘NOW’), our
Congress took the bold step of approving the ERA which then required ratification by at least 38
states. It is widely believed that this Congressional action was fueled in part by the growing
feminist movement begun in the mid to late 1960s. In its passage of the ERA, Congress established
a deadline of 1979 for the separate States to vote their approval, a deadline which was extended
once--to 1982. By the time 1982 arrived, 35 of the states had met the requirement, leaving the
necessary ratification number 3 states short.
In succeeding years, the issue, though not forgotten, fell off the radar, perhaps because of other
intervening concerns and the negative reaction to the ERA in many states that continued to be
fomented by anti-feminist Phyllis Schafly who seemed able to convince many citizens that an ERA
was unnecessary, and her message that housewives would lose their “protections” seemed to
resonate with certain segments of the public. In 2012, however, to celebrate the 40th anniversary
of Congress’ passage of the ERA, Congresswoman Carolyn Maloney (D-NY) and Sen. Bob
Menendez introduced a new version of the ERA in Congress and called for its passage.
This concrete step and the attention it has attracted, along with the buzz about the recently
released documentary ‘Equal Means Equal’ (one of whose producers is screen and TV actress
Patricia Arquette) seem to have mobilized a new generation and awakened those who are older
into recognizing that, despite many state statutes and local laws requiring equality in various areas
of our existence such as employment, sports and education, women still lag behind men in many
areas of their daily lives. Moreover, there is no consistency among states or between states and
the federal government in how they view and enforce gender equality.
Thus, we come to TODAY when the time seems ‘ripe’ for reconsidering this Amendment to our
Constitution. For this reason, we are examining, with our program participants, why the ERA still
matters and how it would positively affect the future for the U.S. population. Our program begins
with a detailed explanation of the process by which the ERA, like any other proposed amendment,
would become embodied in our U.S. Constitution; what impact the failure by the states to ratify
Congress’ 1972 passage of the ERA may have on subsequent efforts; what the effect has been/will
be on future efforts to pass the ERA of the rescinding by several states since 1982 of their earlier
ratifications; and whether and how the U.S. Supreme Court (with either 8 or 9 Justices!) will weigh
in on these issues.
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The Equal Rights Amendment:
Why It Still Matters and How It Will Affect Our Future
October 31, 2016
Primary Text

ERA as drafted by Alice Paul and introduced in Congress in 1923
(aka “Lucretia Mott Amendment”):
“Men and women saw have equal rights throughout the United States
and every place subject to its jurisdiction.”
Equal Rights Amendment as passed in 1972 ............................................................................ CBA5
“Equality of rights under the law shall not be denied or abridged by the
United States or by any State on account of sex.”

Current Congressional Resolutions Pending in Congress Regarding the ERA
o HJRes 51/SJRes 15 – Remove the deadline (House & Senate are identical)………CBA8
o HJRes 52 – Start-Over………………………………………………………………………………………CBA10
“Women shall have equal rights in the United States and every place
subject to its jurisdiction. Equality of rights under the law shall not be
denied or abridged by the United States or by any State on account of sex.”
o SJRes 16 – Start-Over……………………………………………………………………………………..CBA13
“Equality of rights under the law shall not be denied or abridged by
the United States or by any State on account of sex.”

Current Illinois Resolution for Ratification (ILSJRCA24)…………………………………………CBA15
History and Background

Illinois Timeline – Key Dates………………………………………………………………………………...CBA20

Equal Means Equal, Jessica Neuwirth, The New Press, 2015 [excerpt]……………...
CBA1
Mechanics of A Constitutional Amendment

US Constitution, Article V………………………………………………………………………………….…CBA25

IL Constitution of 1970, Article IVX……………………………………………………………………...CBA28

Coleman v. Miller, 307 US 433 (1939)…………………………………………………………………..CBA30

Dyer v. Blair, 390 F.Supp. 1291 (ND IL 1975)………………………………………………………...CBA50

Idaho v. NOW, 529 F. Supp. 1107 (Idaho, 1981), vacated as moot by 459 US 809….CBA67

“The Proposed Equal Rights Amendment: Contemporary Ratification Issues,”
Thomas H. Neale (Congressional Research Service) April 8, 2014…………………………CBA120

Four Strategies for Gender Equity Under the Law (chart)…………………………………….CBA151
Arguments For and Against the ERA

“A Short History of E.R.A” from The Phyllis Schlafly Report (c. mid-1990s)…………CBA152

“BREAKING: Americans—by 94%-- Overwhelmingly Support the Equal Rights
Amendment (ERA)” Press Release, ERA Coalition June 17 2016………………………….CBA158

“Myths About the ERA Debunked” by Cindy G. Buys The Catalyst (ISBA newsletter)
November 2015, vol. 21, no. 3…………………………………………………………………………….CBA162

At the End of Our Article III Rope: Why We Still Need The Equal Rights Amendment
Sarah M. Stephens, 80 Brook. L. Rev. 397, 2014-2015………………………………………….CBA165

Gender Equity In The 2 1st Century: Keynote Address Delivered September 18, 2014,
Chai Feldblum, 18 Rich. J. L. & Pub. Int. 417 2014-2015……………………………………….CBA196

ISBA Women and the Law Committee Report on the ERA…….…………………………….CBA219
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Additional Reading (not included)
 Equal Means Equal, Jessica Neuwirth, The New Press, 2015.

Equal Means Equal (a documentary), 2016. (available to stream on iTunes, Amazon and
OnDemand). www.equalmeansequal.com

A New E.R.A. Or A New Era? Amendment Advocacy And The Reconstitution Of Feminism
Serena Mayeri 103 Nw. U.L.Rev. 1223, 2009 (available at
http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1291&context=faculty_sc
holarship).

The Lost Legislative History Of The Equal Rights Amendment: Lessons From The
Unpublished 1983 Markup By The House Judiciary Committee, Paul Taylor, Philip G. Kiko
7 U. Md. L.J. Race Religion Gender & Class 341, 2007, (available at
http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1133&context=r
rgc).

The Equal Rights Amendment: Then And Now. Martha F. Davis 17 Colum. J. Gender & L.
419, 2008.

Gender Mainstreaming In The United States: A New Vision Of Equality, Melissa Bellitto
22 UCLA Women's L.J. 125, 2015, (available at
http://escholarship.org/uc/item/7zs9b1j8).

An Employer's Conscience After Hobby Lobby And The Continuing Conflict Between
Women's Rights And Religious Freedom, Sarah M Stephens 24 Buff. J. Gender L. & Soc.
Pol'y 1, 2015-2016.

Ruth Bader Ginsburg's Equal Protection Clause: 1970-80, Wendy W. Williams 25 Colum.
J. Gender & L. 41, 2013 (available at
http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2253&context=facp
ub)

Does The U.S. Constitution Need An Equal Rights Amendment? Lisa Batdez, Lee Epstein,
& Andrew D. Martin 35 J. Legal Stud. 243, 2006 (available at
http://epstein.wustl.edu/research/ERA.pdf).

Does An Equal Rights Amendment Make A Difference? Wolfgang P Hirczy De Mifio
60 Alb. L. Rev. 1581, 1996-1997.
CBA3

An Equal Rights Amendment To Make Women Human, Ann Bartow 78 Tenn. L. Rev. 839,
2010-2011 (available at
http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1797&context=lawfaculty)
.

Constitutional Culture, Social Movement Conflict And Constitutional Change: The Case
Of The De Facto ERA 2005-06 Brennan Center Symposium Lecture Reva B. Siegel 94 Cal.
L. Rev. 1323, 2006 (available at
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2125&context=fss_pap
ers).

The Equal Rights Amendment: Why The ERA Remains Legally Viable And Properly Before
The States" Allison L. Held, Sheryl L. Herndon And Danielle M. Stager 3 Wm. & Mary J.
Women & L. 113, 1997 (available at
http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1271&context=wmjow).

Necromancing the Equal Rights Amendment, Brannon P. Denning and John R. Vile,
Constitutional Commentary (Minnesota), vol. 17, winter, 2000, issue 3, (available at
https://conservancy.umn.edu/bitstream/handle/11299/168085/17_03_Denning_Vile.p
df?sequence=1&isAllowed=y).

Why Time Limits On The Ratification Of Constitutional Amendments Violate Article V,
Mason Kalfust 66 U. Chi. L. Rev. 437 1999 (available at
http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=5001&context=uclrev)

The Impact of the Equal Rights Amendment, Report to the Senate Committee on the
Judiciary, 1984 (available at http://files.eric.ed.gov/fulltext/ED255773.pdf) (n.b., over
1,000 pages long, includes testimony and primary documents).
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IIA
114TH CONGRESS
1ST SESSION
S. J. RES. 15
Removing the deadline for the ratification of the equal rights amendment.
IN THE SENATE OF THE UNITED STATES
MAY 7, 2015
Mr. CARDIN (for himself, Mr. KIRK, Ms. BALDWIN, Mr. BLUMENTHAL, Mrs.
BOXER, Mr. BROWN, Mr. DURBIN, Mr. FRANKEN, Mrs. GILLIBRAND,
Mr. HEINRICH, Ms. HIRONO, Mr. KAINE, Ms. KLOBUCHAR, Mr. MARKEY, Mr. MENENDEZ, Mr. MERKLEY, Ms. MIKULSKI, Mr. PETERS, Mr.
SANDERS, Mrs. SHAHEEN, Ms. STABENOW, Mr. WARNER, Ms. WARREN,
Mr. WHITEHOUSE, Mr. WYDEN, Mr. MURPHY, and Mr. REED) introduced the following joint resolution; which was read twice and referred
to the Committee on the Judiciary
JOINT RESOLUTION
Removing the deadline for the ratification of the equal rights
amendment.
1
Resolved by the Senate and House of Representatives
2 of the United States of America in Congress assembled,
3 That notwithstanding any time limit contained in House
4 Joint Resolution 208, 92d Congress, as agreed to in the
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5 Senate on March 22, 1972, the article of amendment pro6 posed to the States in that joint resolution shall be valid
7 to all intents and purposes as part of the Constitution
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1 whenever ratified by the legislatures of three-fourths of
2 the several States.
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IA
114TH CONGRESS
1ST SESSION
H. J. RES. 52
Proposing an amendment to the Constitution of the United States relative
to equal rights for men and women.
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IN THE HOUSE OF REPRESENTATIVES
MAY 14, 2015
Mrs. CAROLYN B. MALONEY of New York (for herself, Mrs. LUMMIS, Mr.
SCHIFF, Mr. AL GREEN of Texas, Mr. GRAYSON, Mr. LOWENTHAL, Mr.
HASTINGS, Ms. ADAMS, Mr. BERA, Mr. CARSON of Indiana, Mrs. KIRKPATRICK, Ms. KUSTER, Ms. LEE, Mr. THOMPSON of Mississippi, Ms.
MCCOLLUM, Mr. FOSTER, Mr. PASCRELL, Mr. RUSH, Mr. SCOTT of Virginia, Mrs. WATSON COLEMAN, Mr. SHERMAN, Mrs. LAWRENCE, Mr.
BRENDAN F. BOYLE of Pennsylvania, Mr. HIGGINS, Mr. RICHMOND, Mr.
FATTAH, Mr. RANGEL, Mr. DENT, Ms. PINGREE, Mrs. BUSTOS, Mr. VAN
HOLLEN, Mr. PETERSON, Ms. BROWN of Florida, Mr. KILDEE, Mr.
DANNY K. DAVIS of Illinois, Mr. CICILLINE, Mr. LOEBSACK, Mr. PRICE
of North Carolina, Mr. DAVID SCOTT of Georgia, Mrs. DINGELL, Ms.
WASSERMAN SCHULTZ, Mr. KILMER, Ms. DEGETTE, Ms. TITUS, Mr.
BEYER, Mr. PAYNE, Ms. EDWARDS, Ms. MATSUI, Mr. RUPPERSBERGER,
Mr. BLUMENAUER, Mr. PERLMUTTER, Ms. EDDIE BERNICE JOHNSON of
Texas, Ms. NORTON, Mr. CUMMINGS, Mr. ENGEL, Ms. ESTY, Mr.
CLEAVER, Mr. SWALWELL of California, Ms. WILSON of Florida, Mr.
LOBIONDO, Mr. PALLONE, Mr. BUTTERFIELD, Mr. GENE GREEN of
Texas, Mr. CONNOLLY, Ms. MENG, Mrs. NAPOLITANO, Mr. MEEKS, Ms.
MOORE, Mr. JEFFRIES, Mr. JOHNSON of Georgia, Ms. SPEIER, Mr. CLYBURN, Mr. LANGEVIN, Mr. MCGOVERN, Ms. HAHN, Ms. SCHAKOWSKY,
Mr. HUFFMAN, Mr. NADLER, Mr. MCNERNEY, Mr. COOPER, Mr. COSTA,
Mr. HIMES, Mr. MCDERMOTT, Mr. CASTRO of Texas, Mr. COURTNEY,
Mr. CONYERS, Mr. DELANEY, Mr. GARAMENDI, Mr. LARSON of Connecticut, Mr. LEWIS, Mr. SARBANES, Mr. YARMUTH, Mr. SERRANO, Mr.
CROWLEY, Mr. KENNEDY, Mrs. BEATTY, Ms. JUDY CHU of California,
Ms. BROWNLEY of California, Ms. BASS, Ms. CLARK of Massachusetts,
Miss RICE of New York, Ms. CASTOR of Florida, Mr. ELLISON, Mr.
SCHRADER, Mr. LANCE, Ms. LINDA T. SÁNCHEZ of California, Mrs.
CAPPS, Ms. FRANKEL of Florida, Ms. LORETTA SANCHEZ of California,
Ms. SLAUGHTER, Ms. ROYBAL-ALLARD, Mr. GUTIÉRREZ, Ms.
BORDALLO, Mr. VEASEY, Ms. FUDGE, Ms. KAPTUR, Mr. DESAULNIER,
Mr. POCAN, Mr. TAKAI, Mr. TAKANO, Mr. CARTWRIGHT, Ms. MAXINE
WATERS of California, Mr. CAPUANO, Ms. MICHELLE LUJAN GRISHAM
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of New Mexico, Mr. HONDA, Mr. QUIGLEY, Mr. THOMPSON of California,
Ms. TSONGAS, Mrs. LOWEY, Mrs. TORRES, Ms. VELÁZQUEZ, Mr. MURPHY of Florida, Mr. TONKO, Mr. AGUILAR, Mr. DEFAZIO, Mr. WELCH,
Mr. GRIJALVA, Mr. RUIZ, Mrs. ELLMERS of North Carolina, Mr. LARSEN
of Washington, Mr. NOLAN, Mr. BRADY of Pennsylvania, Ms. KELLY of
Illinois, Mr. FRELINGHUYSEN, Ms. DELAURO, Mr. GALLEGO, Mr. FARR,
Mr. LEVIN, Mr. BISHOP of Georgia, Mr. PETERS, Mr. SEAN PATRICK
MALONEY of New York, Ms. JACKSON LEE, Ms. PLASKETT, Mr. HOYER,
Mr. LYNCH, Mr. COHEN, Mr. ISRAEL, Mrs. DAVIS of California, Ms.
DELBENE, Ms. BONAMICI, Ms. DUCKWORTH, Mr. DEUTCH, Mr. TED
LIEU of California, Ms. SEWELL of Alabama, Mr. RYAN of Ohio, Mr.
CÁRDENAS, Ms. GABBARD, Mr. KEATING, Mr. CLAY, Mr. BECERRA, Ms.
CLARKE of New York, and Ms. LOFGREN) introduced the following joint
resolution; which was referred to the Committee on the Judiciary
JOINT RESOLUTION
Proposing an amendment to the Constitution of the United
States relative to equal rights for men and women.
1
Resolved by the Senate and House of Representatives
2 of the United States of America in Congress assembled
3 (two-thirds of each House concurring therein), That the fol4 lowing article is proposed as an amendment to the Con5 stitution of the United States, which shall be valid to all
6 intents and purposes as part of the Constitution when
7 ratified by the legislatures of three-fourths of the several
8 States:
9
10
‘‘ARTICLE —
‘‘SECTION 1. Women shall have equal rights in the
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11 United States and every place subject to its jurisdiction.
12 Equality of rights under the law shall not be denied or
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1 abridged by the United States or by any State on account
2 of sex.
3
‘‘SECTION 2. Congress and the several States shall
4 have the power to enforce, by appropriate legislation, the
5 provisions of this article.
6
‘‘SECTION 3. This amendment shall take effect two
7 years after the date of ratification.’’.
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IIA
114TH CONGRESS
1ST SESSION
S. J. RES. 16
Proposing an amendment to the Constitution of the United States relative
to equal rights for men and women.
IN THE SENATE OF THE UNITED STATES
MAY 7, 2015
Mr. MENENDEZ (for himself, Mr. CARDIN, Mrs. BOXER, Ms. WARREN, Mr.
BLUMENTHAL, and Mrs. GILLIBRAND) introduced the following joint resolution; which was read twice and referred to the Committee on the Judiciary
JOINT RESOLUTION
Proposing an amendment to the Constitution of the United
States relative to equal rights for men and women.
1
Resolved by the Senate and House of Representatives
2 of the United States of America in Congress assembled
3 (two-thirds of each House concurring therein), That the fol4 lowing article is proposed as an amendment to the Con5 stitution of the United States, which shall be valid to all
6 intents and purposes as part of the Constitution when
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7 ratified by the legislatures of three-fourths of the several
8 States:
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2
‘‘ARTICLE —
‘‘SECTION 1. Equality of rights under the law shall
3 not be denied or abridged by the United States or by any
4 State on account of sex.
5
‘‘SECTION 2. The Congress shall have the power to
6 enforce, by appropriate legislation, the provisions of this
7 article.
8
‘‘SECTION 3. This article shall take effect 2 years
9 after the date of ratification.’’.
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*LRB09920214HEP44679e*
99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016
SENATE JOINT RESOLUTION
CONSTITUTIONAL AMENDMENT
SC0024
Introduced 2/5/2016, by Sen. Heather A. Steans
SYNOPSIS AS INTRODUCED:
Provides for the ratification of the proposed equal rights amendment
to the United States Constitution.
LRB099 20214 HEP 44679 e
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SC0024
LRB099 20214 HEP 44679 e
1
SENATE JOINT RESOLUTION
2
CONSTITUTIONAL AMENDMENT
3
WHEREAS, The Ninety-second Congress of the United States of
4
America,
5
constitutional majority of two-thirds, adopted the following
6
proposition to amend the Constitution of the United States of
7
America:
8
at
its
Second
Session,
in
both
houses,
by
a
"JOINT RESOLUTION
9
RESOLVED BY THE HOUSE OF REPRESENTATIVES AND SENATE OF THE
10
UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED (TWO-THIRDS OF
11
EACH HOUSE CONCURRING THEREIN), That the following article is
12
proposed as an amendment to the Constitution of the United
13
States, which shall be valid to all intents and purposes as a
14
part of the Constitution when ratified by the legislatures of
15
three-fourths of the several States within seven years from the
16
date of its submission by the Congress:
17
"ARTICLE ______
18
Section 1. Equality of rights under law shall not be denied
19
or abridged by the United States or any State on account of
20
sex.
21
22
23
24
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.""; and
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SC0024
1
-2-
LRB099 20214 HEP 44679 e
WHEREAS, A Joint Resolution is a resolution adopted by both
2
houses
3
signature of the Governor; a Joint Resolution is sufficient for
4
Illinois' ratification of an amendment to the United States
5
Constitution; and
of
the
General
Assembly
and
does
not
require
the
6
WHEREAS, The United States Congress has recently adopted
7
the 27th Amendment to the Constitution of the United States,
8
the so-called Madison Amendment, relating to Compensation of
9
Members of Congress; this amendment was proposed 203 years
10
earlier by our First Congress and only recently ratified by
11
three-fourths
12
certified the 27th Amendment on May 18, 1992; and
13
WHEREAS,
of
The
the
States;
founders
the
of
our
United
States
nation,
James
Archivist
Madison
14
included, did not favor further restrictions to Article V of
15
the Constitution of the United States, the amending procedure;
16
the United States Constitution is harder to amend than any
17
other constitution in history; and
18
WHEREAS, The restricting time limit for the Equal Rights
19
Amendment ratification is in the resolving clause and is not a
20
part of the amendment proposed by Congress and already ratified
21
by 35 states; and
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SC0024
-3-
LRB099 20214 HEP 44679 e
1
WHEREAS, Having passed a time extension for the Equal
2
Rights Amendment on October 20, 1978, Congress has demonstrated
3
that a time limit in a resolving clause can be disregarded if
4
it is not a part of the proposed amendment; and
5
WHEREAS, The United States Supreme Court in Coleman v.
6
Miller, 307 U.S. 433, at 456 (1939), recognized that Congress
7
is in a unique position to judge the tenor of the nation, to be
8
aware of the political, social, and economic factors affecting
9
the nation, and to be aware of the importance to the nation of
10
the proposed amendment; and
11
WHEREAS, If an amendment to the Constitution of the United
12
States has been proposed by two-thirds of both houses of
13
Congress
14
legislatures, it
15
Coleman v. Miller to determine the validity of the state
16
ratifications occurring after a time limit in the resolving
17
clause, but not in the amendment itself; and
18
and
WHEREAS,
ratified
is
for
by
three-fourths
Congress under
Constitutional
equality
of
the
for
the
state
principles of
women
and
men
19
continues to be timely in the United States and worldwide, and
20
a number of other nations have achieved constitutional equality
21
for their women and men; therefore, be it
22
RESOLVED,
BY
THE
SENATE
OF
THE
NINETY-NINTH
GENERAL
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SC0024
-4-
LRB099 20214 HEP 44679 e
1
ASSEMBLY OF THE STATE OF ILLINOIS, THE HOUSE OF REPRESENTATIVES
2
CONCURRING
3
Constitution of the United States of America set forth in this
4
resolution is ratified; and be it further
5
HEREIN,
that
the
proposed
amendment
to
the
RESOLVED, That a certified copy of this resolution be
6
forwarded
7
Administrator of General Services of the United States, the
8
President pro tempore of the Senate and the Speaker of the
9
House of Representatives of the Congress of the United States,
10
to
the
Archivist
of
the
United
States,
the
and each member of the Illinois congressional delegation.
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Key Dates in the Illinois History of the Equal Rights Amendment
1913: Illinois grants suffrage to women (ahead of the 19th Amendment)
June 10, 1919: IL, MI & WI are the first to ratify the 19th Amendment (women’s suffrage)
July 1921: Winnifred Sprague Mason Huck first woman elected to represent Illinois in Congress
(3rd Nationally). Serves 4 months.
1923: Alice Paul drafts “Women’s Equality Amendment”
1943: Senate Judiciary committee changes ERA to the current language
1970: IL adopts new state constitution
1970: Illinois adopts nearly verbatim ERA into its state constitution (Art. I, Sec. 18)
1970: IL state constitution requires 3/5s majority for federal amendments (Art. V, Sec. 4)
March 22, 1972: Congress passes ERA resolution, sends to states for consideration
April 10, 1972: Identical ratification resolutions introduced in the Illinois House and Senate
Spring 1972: E.R.A. Central formed with Illinois NOW BPW, ACLU of IL, FEW, AAUW,
LWV, YWCA, Illinois Nurses Association and IL Women’s Political Caucus as core members
May 1972: Within a month, 15 states ratify the ERA. IL expected to also ratify.
May 24, 1972: Senate adopts SJRCA62 30-21-1
Summer 1972: Article quotes Senator Saperstein supporting Stevenson over Richard J. Daley
June 15, 1972: Resolution fails House vote. Failure blamed on premature vote, horse trading.
January 22, 1973: Roe v. Wade legalizes abortion, changes the political discourse.
February 28, 1973: Identical ratification resolutions introduced in both Illinois chambers
March 17, 1973: Chicago Irish Feminists for the ERA marches in the St. Patrick’s Day parade
with a 10’ sign.
Spring 1973: E.R.A. Central grows to 65 member organizations
Spring 1973: Four legislators file suit to have Art XIV, Sec 4 declared unconstitutional.
April 4, 1973: HJRCA14 fails 95-72-2
May 3, 1973: Efforts to move SJRCA13 out of committee fail.
January 1974: Dyer and Chapman introduce HJRCA32 (ERA ratification)
May 21 1974: Senator Saperstein introduces SJRCA68 (ERA ratification)
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March 20, 1974: Illinois Supreme Court holds that Art. 1, Sec 18 of the State Constitution (aka
“the little ERA”) imposes strict scrutiny on gender classifications. People v. Ellis 57 Ill.2d 127,
130 (1974).
May 21, 1974: Dyer v. Blair (super majority) dismisses case as not ripe due to senate inaction
(390 FSupp1287)
Mid-1974: E.R.A. Central peaks at 80 member organizations and 5,000 individual members
June 1974: Illinois Commission of the Status of Women reports findings to the IL GA and
Governor, recommends ERA
December 1974: Illinois ERA Coalition forms with Springfield with LWV as chair
1975: ERA advocates work to both lower “super majority” requirement, and pass the ERA
resolution
1975: Two ERA resolutions introduced but neither is called to a vote
1976: 6,000 protesters march in Springfield to support the ERA
January 18, 1977: Indiana becomes the 35th state to ratify the ERA.
July 8, 1977: Alice Paul, original ERA author, silent sentinel leader, dies at age 92.
1978: National ERA boycott of Illinois estimated to cost Chicago businesses $20M
1978: LWV raises $150,000 to support ERA lobbying efforts
1978: Rep. Grieshemer quoted as saying the ERA is supported by “a large group of bisexual[s]”
1978: Rep Elroy Sundqvist votes for the ERA because “It is a people’s amendment.”
June 7, 1978: Unsuccessful ERA vote in the Illinois House.
August 15, 1978: U.S. House of Representatives approves the ERA deadline extension, 233-189
October 6, 1978: U.S. Senate also approves extension by a vote of 60-36. A new deadline of
June 30, 1982 is set.
1979: Original deadlines for the ERA expires. No state since Indiana in 1977 has ratified the
ERA.
February 1979: anti-trust lawsuit against ERA Boycott unsuccessful, Protest is protected speech.
May 1980: President Carter convenes White House meeting on IL strategy
May 10, 1980: Illinois NOW organizes Chicago rally of 85,000 to support ERA ratification
July 1980: RNC removes ERA from its platform. Candidate Regan opposes the ERA.
1980: Woman convicted of attempted bribery for writing a suggested donation on a business card
June 1981: Alan Alda and Betty Ford campaign in Illinois for ERA ratification.
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December 23, 1981: Idaho v. Freeman (district court) declares extension unconstitutional.
(SCOTUS will vacate)
1981: Judge Callister (Idaho v. Freeman) declines recusal despite appearance of a personal
conflict
January 1982: SCOTUS grants unanimous stay on Idaho v. Freemen, hears case.
June 30, 1982: Extended ERA deadline lapses. No state since Indiana in 1977 has ratified the
ERA.
October 4, 1982: SCOTUS vacates Idaho v. Freeman, remands as moot (459 US 809).
1982: College sophomore Gregory Watson gets a “C” for his research paper about the Madison
Amendment http://writ.news.findlaw.com/dean/20020927.html
1983: Congress votes to extend the ERA deadline again, but fails by six votes
1983: Gregory Watson launches a personal crusade to ratify the Madison Amendment, starting
with Maine.
1992: 27th Amendment ratified after 203 years, limiting congressional raises (aka Madison
Amendment)
1992: Illinois elects first black woman to the Illinois Senate Carol Mosely Braun
1996: IL Supreme Court finds inheritance law that allows mothers but not fathers to inherit from
an illegitimate child unconstitutional per gender discrimination. (In re Estate of Hicks, 174 Ill.2d
433
1997: William and Mary Law Review article proposes suggest three state strategy to revive ERA
in light of Madison Amendment
http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1271&context=wmjowl
September 1997: Congressional Research Service (CRS) issues a report exploring the legality of
the Three State Strategy http://www.senate.gov/reference/resources/pdf/97-922.pdf
2003 (93rd Session): Rep Lou Lang introduces HRJCA1, and is joined by 63 sponsors including
state Senator Barack Obama.
May 21, 2003: Illinois House passes HJRCA0001 for ERA ratification (76-41), but the
resolution is not called to a vote in the Senate.
August 19, 2004: Congressional Research Service issues memo on the ERA
https://maloney.house.gov/sites/maloney.house.gov/files/documents/olddocs/era/081904crsERAr
atification.pdf
2005: Representative Lou Lang introduces HJRCA3 (joined by 48 sponsors)
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2007: Representative Lou Lang introduces HRJCA2 (joined by 7 sponsors). Representative
David Reis requests a Fiscal Note. Office of the Attorney General and Department of
Corrections determines “no fiscal impact.”
2009: Representative Lou Lang introduces HRJCA3. No activity.
2011: Representative Lou Lang introduces HRJCA2 (joined by 4 sponsors).
January 2013: Representative Lou Lang introduces HJRCA7
May 14, 2014: Senator Heather Steans introduces SJRCA75, gets press coverage in the Chicago
Tribune.
May 22, 2014: Illinois Senate passes SJRCA75 39-11. The House resolution gets out of
committee, but is not called to a vote before the end of the term.
February 5, 2016: Senator Heather Steans introduces SJRCA24.
Draft 10/21/2016
Please send corrections, additions to [email protected]
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PENDING

Equal Means Equal, Jessica Neuwirth, The New Press, 2015 [excerpt].
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Page 1
Questioned
As of: Oct 27, 2016
COLEMAN ET AL. v. MILLER, SECRETARY OF THE SENATE OF THE
STATE OF KANSAS, ET AL.
No. 7
SUPREME COURT OF THE UNITED STATES
307 U.S. 433; 59 S. Ct. 972; 83 L. Ed. 1385; 1939 U.S. LEXIS 1066; 1 Lab. Cas.
(CCH) P17,046; 122 A.L.R. 695
October 10, 1938, Argued
June 5, 1939, Decided
SUBSEQUENT HISTORY: As Amended.
Reargued April 17, 18, 1939.
PRIOR HISTORY:
CERTIORARI TO THE
SUPREME COURT OF KANSAS.
CERTIORARI, 303 U.S. 632, to review a judgment
of the Supreme Court of Kansas denying a writ of
mandamus, applied for in that court by senators of the
State and members of its House of Representatives for
the purpose of compelling the Secretary of the Senate to
erase an endorsement purporting to show that a resolution
for the ratification of a proposal to amend the Federal
Constitution had passed the Senate, and to restrain the
officers of the Senate and the other house of the
legislature from signing the resolution and the Secretary
of State of Kansas from authenticating it and delivering it
to the Governor.
DISPOSITION:
affirmed.
CASE SUMMARY:
146 Kan. 390; 71 P. 2d 518,
PROCEDURAL POSTURE: Petitioner state senators
sought review of the judgment from the Supreme Court
of Kansas denying the requested writ of mandamus
against respondent Secretary of the Senate.
OVERVIEW: In January, 1925, the Legislature of
Kansas adopted a resolution rejecting a proposed
amendment to the United States Constitution. Twelve
years later, the amendment was taken up again and was
approved with the Lieutenant Governor casting the
tie-breaking vote in the Senate. Twenty-one members of
the Senate, including those who voted against the
adoption, sought review of the decision of the Supreme
Court of Kansas that rejected their petition for writ of
mandamus, which sought to compel the Secretary to
reverse the entry of passage in the Senate. They
contended that the legislature could not later approve an
amendment which it had previously rejected and that the
amendment had lost its vitality due to the passage of
time. On appeal, the Court affirmed the decision of the
state supreme court. The Court held that the questions of
the efficacy of ratifications of amendments by state
legislatures following previous rejections and that of
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307 U.S. 433, *; 59 S. Ct. 972, **;
83 L. Ed. 1385, ***; 1939 U.S. LEXIS 1066
whether an amendment has lost its vitality by lapse of
time were political questions resting with ultimate
authority of the Congress.
OUTCOME: The Court affirmed the decision of the
Supreme Court of Kansas that denied the requested writ
of mandamus.
LAWYERS' EDITION HEADNOTES:
APPEAL, §507
validity of ratification of amendment to Federal
Constitution -- review by Supreme Court. -Headnote:[1]
The validity under Article 5 of the Federal
Constitution of the ratification by a state legislature of a
proposed amendment to the Federal Constitution is a
Federal question, and the Supreme Court may review on
certiorari a decision thereof by a state court.
APPEAL, §705
CERTIORARI, §26
who may obtain review of Federal question by
Supreme Court -- state senators -- ratification of
constitutional amendment. -Headnote:[2]
Members of a state Senate, claiming the right under
the Federal Constitution to have their votes given effect
in the ratification or rejection by that body of a proposed
amendment to that Constitution, have such interest as will
enable them to invoke the jurisdiction of the Federal
Supreme Court to review on certiorari a decision of the
state supreme court denying such effect to their votes.
APPEAL, §832
CERTIORARI, §26
review by Supreme Court of decision of state court
holding state statute unconstitutional. -Headnote:[3]
The Supreme Court has power to grant certiorari, on
the application of state officers, to review decisions of
state courts declaring state statutes, which the officers
seek to enforce, to be repugnant to the Federal
Constitution.
CONSTITUTIONAL LAW, §4
efficacy of ratification of constitutional amendment
as question within ultimate power of Congress. -Headnote:[4]
The efficacy of ratification by a state legislature of a
proposed amendment to the Federal Constitution,
attacked on the ground that the legislature had previously
rejected the amendment, is a political question within the
ultimate power of Congress in the exercise of its control
over the promulgation of the adoption of amendments.
COURTS, §56
INJUNCTION, §79
restraining certification by state officers of
ratification of constitutional amendment. -Headnote:[5]
The Court will not restrain state officers from
certifying to the Secretary of State the ratification of a
proposed amendment to the Federal Constitution by the
state legislature, and thus prevent the question of the
validity of the ratification from coming before the
political departments, on the alleged ground that the
legislature had previously rejected the amendment.
CONSTITUTIONAL LAW, §4
COURTS, §56
ratification of amendment -- power of Supreme
Court to decide what is reasonable time for. -Headnote:[6]
The Supreme Court has no power to determine what
is, in the absence of a limitation fixed by Congress, a
reasonable period within which ratification may be had of
a proposed amendment to the Federal Constitution.
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307 U.S. 433, *; 59 S. Ct. 972, **;
83 L. Ed. 1385, ***; 1939 U.S. LEXIS 1066
COURTS, §56
ratification of constitutional amendment -- decision
by Congress on -- review by courts. -Headnote:[7]
The decision by Congress, in its control of the action
of the Secretary of State, of the question whether an
amendment to the Federal Constitution has been adopted
within a reasonable time, is not subject to review by the
courts.
COURTS, §49
political questions -- determining what are. -Headnote:[8]
In determining whether a question is of the political
category, so as not to be justiciable, the appropriateness
under our system of government of attributing finality to
the action of the political departments, and the lack of
satisfactory criteria for a judicial determination, are
dominant considerations.
SYLLABUS
1. Upon submission of a resolution for ratification of
a proposed amendment to the Federal Constitution,
known as the Child Labor Amendment, twenty of the
forty senators of the State of Kansas voted in favor of its
adoption and twenty voted against it. The Lieutenant
Governor, the presiding officer of the Senate, then cast
his vote in favor of the resolution, and later it was
adopted by the other house of the legislature on a vote of
a majority of its members. The twenty senators who had
voted against ratification, challenging the right of the
Lieutenant Governor to cast the deciding vote in the
Senate, and alleging that the proposed amendment had
lost its vitality because of previous rejection by Kansas
and other States and failure of ratification within a
reasonable time, sought a writ of mandamus to compel
the Secretary of the Senate to erase an endorsement on
the resolution, to the effect that it had been adopted by
the Senate, and to endorse thereon the words "was not
passed," and to restrain the officers of the Senate and
House of Representatives from signing the resolution and
the Secretary of State of Kansas from authenticating it
and delivering it to the Governor. The State entered its
appearance and the State Supreme Court entertained the
action, sustained the right of the plaintiffs to maintain it,
but overruled their contentions, upheld the ratification,
and denied the writ. Held:
(1) The questions decided were federal questions,
arising under Article V of the Constitution. P. 437.
(2) The complaining senators, whose votes against
ratification have been overridden and virtually held for
naught, although if they are right in their contentions their
votes would have been sufficient to defeat ratification,
have a plain, direct and adequate interest in maintaining
the effectiveness of their votes. They have set up and
claimed a right and privilege under the Constitution of
the United States to have their votes given effect and the
state court has denied that right and privilege. P. 438.
(3) This Court has jurisdiction to review the decision
of the state court by certiorari, under Jud. Code § 237 (b).
P. 438.
2. The Court being equally divided in opinion as to
whether the question presents a justiciable controversy, or
is a political question, expresses no opinion upon a
contention that the Lieutenant Governor of Kansas was
not a part of the "legislature," and under Article V of the
Federal Constitution could not be permitted a deciding
vote on the ratification of the proposed amendment. P.
446.
3. In accordance with the precedent of the Fourteenth
Amendment, the efficacy of ratification of a proposed
amendment to the Federal Constitution by a state
legislature which had previously rejected the proposal, is
held a question for the political departments, with the
ultimate authority in the Congress in the exercise of its
control over the promulgation of the adoption of the
amendment. P. 447.
4. The legislature of Kansas having actually ratified
the proposed Child Labor Amendment, this Court should
not restrain the state officers from certifying the
ratification to the Secretary of State, because of an earlier
rejection, and thus prevent the question from coming
before the political departments. There is found no basis
in either Constitution or statute for such judicial action.
P. 450.
5. R. S. § 205; 5 U. S. C. 160, presupposes official
notice to the Secretary of State when a state legislature
has adopted a resolution of ratification. No warrant is
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307 U.S. 433, *; 59 S. Ct. 972, **;
83 L. Ed. 1385, ***; 1939 U.S. LEXIS 1066
seen for judicial interference with the performance of that
duty. P. 450.
6. The Congress in controlling the promulgation of
the adoption of a constitutional amendment has the final
determination of the question whether by lapse of time its
proposal of the amendment had lost its vitality before
being adopted by the requisite number of legislatures. P.
451.
7. In determining whether a question falls within the
category of political, non-justiciable questions, the
appropriateness under our system of government of
attributing finality to the action of the political
departments, and also the lack of satisfactory criteria for a
judicial determination, are dominant considerations. P.
454.
COUNSEL: Messrs. Robert Stone and Rolla W.
Coleman, on the reargument and on the original
argument, for petitioners.
Mr. Clarence V. Beck on the reargument, and with Mr. E.
R. Sloan on the original argument, for respondents.
By special leave of Court, Solicitor General Jackson, with
whom Mr. Paul A. Freund was on the brief, argued the
case on behalf of the United States, as amicus curiae,
urging affirmance.
By leave of Court, Messrs. Orland S. Loomis, Attorney
General of Wisconsin, Mortimer Levitan and Newell S.
Boardman, Assistant Attorneys General, filed a brief on
behalf of that State, as amicus curiae, urging affirmance.
JUDGES: Hughes, McReynolds, Butler, Stone, Roberts,
Black, Reed, Frankfurter, Douglas
OPINION BY: HUGHES
OPINION
[*435] [**974] [***1387] Opinion of the Court
by MR. CHIEF JUSTICE HUGHES, announced by MR.
JUSTICE STONE.
In June, 1924, the Congress proposed an amendment
to the Constitution, known as the Child Labor
Amendment. 1 In January, 1925, the Legislature of
Kansas adopted a resolution rejecting the proposed
amendment and a certified copy of the resolution was
sent to the Secretary of State of the United States. In
January, 1937, a resolution known as "Senate Concurrent
Resolution [*436] No. 3" was introduced in the Senate
of Kansas ratifying the proposed amendment. There were
forty senators. When the resolution came up for
consideration, twenty senators voted in favor of its
adoption and twenty voted against it. The Lieutenant
Governor, the presiding officer of the Senate, then cast
his vote in favor of the resolution. The resolution was
later adopted by the House of Representatives on the vote
of a majority of its members.
1 The text of the proposed amendment is as
follows (43 Stat. 670):
"Section 1. The Congress shall have power
to limit, regulate, and prohibit the labor of persons
under eighteen years of age.
"Sec. 2. The power of the several States is
unimpaired by this article except that the
operation of State laws shall be suspended to the
extent necessary to give effect to legislation
enacted by the Congress."
This original proceeding in mandamus was then
brought in the Supreme Court of Kansas by twenty-one
members of the Senate, including the twenty senators
who had voted against the resolution, and three members
of the House of Representatives, to compel the Secretary
of the Senate to erase an endorsement on the resolution to
the effect that it had been adopted by the Senate and to
endorse thereon the words "was not passed," and to
restrain the officers of the Senate and House of
Representatives from signing the resolution and the
Secretary of State of Kansas from authenticating it and
delivering it to the Governor. The petition challenged the
right of the Lieutenant Governor to cast the deciding vote
in the Senate. The petition also set forth the prior
rejection of the proposed amendment and alleged that in
the period from June, 1924, to March, 1927, the
amendment had been rejected by both houses of the
legislatures of twenty-six States, and had been ratified in
only five States, and that by reason of that rejection and
the failure of ratification within a reasonable time the
proposed amendment had lost its vitality.
An alternative writ was issued. Later the Senate
passed a resolution directing the Attorney General to
enter the appearance of the State and to represent the
State as its interests might appear. Answers were filed
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Page 5
307 U.S. 433, *437; 59 S. Ct. 972, **974;
83 L. Ed. 1385, ***1387; 1939 U.S. LEXIS 1066
[*437] on behalf of the defendants other than the State
and plaintiffs made their reply.
The Supreme Court found no dispute [***1388] as
to the facts. The court entertained the action and held
that the Lieutenant Governor was authorized to cast the
deciding vote, that the proposed amendment retained its
original vitality, and that the resolution "having duly
passed the house of representatives and the senate, the act
of ratification of the proposed amendment by the
legislature of Kansas was final and complete." The writ
of mandamus was accordingly denied. 146 Kan. 390; 71
P. 2d 518. This Court granted certiorari. 303 U.S. 632.
First. The jurisdiction of this Court. -- Our authority
to issue the writ of certiorari is challenged upon the
ground that petitioners have no standing to seek to have
the judgment of the state court reviewed, and hence it is
urged that the writ of certiorari should be dismissed. We
are unable to accept that view.
[1]The state court held that it had jurisdiction; that
"the right of the parties to maintain the action is beyond
question." 2 The [**975] state court thus determined in
substance that members of the legislature had standing to
seek, and the court had jurisdiction to grant, mandamus to
compel a proper record of legislative action. Had the
questions been solely state questions, the matter would
[*438] have ended there. But the questions raised in the
instant case arose under the Federal Constitution and
these questions were entertained and decided by the state
court. They arose under Article V of the Constitution
which alone conferred the power to amend and
determined the manner in which that power could be
exercised. Hawke v. Smith (No. 1), 253 U.S. 221, 227;
Leser v. Garnett, 258 U.S. 130, 137. Whether any or all
of the questions thus raised and decided are deemed to be
justiciable or political, they are exclusively federal
questions and not state questions.
2 The state court said on this point:
"At the threshold we are confronted with the
question raised by the defendants as to the right of
the plaintiffs to maintain this action. It appears
that on March 30, 1937, the state senate adopted a
resolution directing the attorney general to appear
for the state of Kansas in this action. It further
appears that on April 3, 1937, on application of
the attorney general, an order was entered making
the state of Kansas a party defendant. The state
being a party to the proceedings, we think the
right of the parties to maintain the action is
beyond question. (G. S. 1935, 75-702; State, ex
rel. v. Public Service Comn., 135 Kan. 491, 11 P.
2d 999.)"
[2]We find the cases cited in support of the contention,
that petitioners lack an adequate interest to invoke our
jurisdiction to review, to be inapplicable. 3 Here, the
plaintiffs include twenty senators, whose votes against
ratification have been overridden and virtually held for
naught although if they are right in their contentions their
votes would have been sufficient to defeat ratification.
We think that these senators have a plain, direct and
adequate interest in maintaining the effectiveness of their
votes. Petitioners come directly within the provisions of
the statute governing our appellate jurisdiction. They
have set up and claimed a right and privilege under the
Constitution of the United States to have their votes given
effect and the state court has denied that right and
privilege. As the validity of a state statute was not
assailed, the remedy by appeal was not available (Jud.
Code, § 237 (a); 28 U. S. C. 344 (a)) and the appropriate
remedy was by writ of certiorari [***1389] which we
granted. Jud. Code, § 237 (b); 28 U. S. C. 344 (b).
3 See Caffrey v. Oklahoma Territory, 177 U.S.
346; Smith v. Indiana, 191 U.S. 138; Braxton
County Court v. West Virginia, 208 U.S. 192;
Marshall v. Dye, 231 U.S. 250; Stewart v. Kansas
City, 239 U.S. 14; Columbus & Greenville Ry.
Co. v. Miller, 283 U.S. 96.
The contention to the contrary is answered by our
decisions in Hawke v. Smith, supra, and Leser v. Garnett,
[*439] supra. In Hawke v. Smith, the plaintiff in error,
suing as a "citizen and elector of the State of Ohio, and as
a taxpayer and elector of the County of Hamilton," on
behalf of himself and others similarly situated, filed a
petition for an injunction in the state court to restrain the
Secretary of State from spending the public money in
preparing and printing ballots for submission of a
referendum to the electors on the question of the
ratification of the Eighteenth Amendment to the Federal
Constitution. A demurrer to the petition was sustained in
the lower court and its judgment was affirmed by the
intermediate appellate court and the Supreme Court of the
State. This Court entertained jurisdiction and, holding
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that the state court had erred in deciding that the State
had authority to require the submission of the ratification
to a referendum, reversed the judgment.
In Leser v. Garnett, qualified voters in the State of
Maryland brought suit in the state court to have the
names of certain women stricken from the list of
qualified voters on the ground that the constitution of
Maryland limited suffrage to men and that the Nineteenth
Amendment to the Federal Constitution has not been
validly ratified. The state court took jurisdiction and the
Court of Appeals of the State affirmed the judgment
dismissing the petition. We granted certiorari. On the
question of our jurisdiction we said:
"The petitioners contended, on several grounds, that
the Amendment had not become part of the Federal
Constitution. The [**976] trial court overruled the
contentions and dismissed the petition. Its judgment was
affirmed by the Court of Appeals of the State, 139 Md.
46; and the case comes here on writ of error. That writ
must be dismissed; but the petition for a writ of certiorari,
also duly filed, is granted. The laws of Maryland
authorized such a suit by a qualified voter against the
Board of Registry. Whether the Nineteenth Amendment
has become [*440] part of the Federal Constitution is
the question presented for decision."
And holding that the official notice to the Secretary
of State, duly authenticated, of the action of the
legislatures of the States, whose alleged ratifications were
assailed, was conclusive upon the Secretary of State and
that his proclamation accordingly of ratification was
conclusive upon the courts, we affirmed the judgment of
the state court.
That the question of our jurisdiction in Leser v.
Garnett was decided upon deliberate consideration is
sufficiently shown by the fact that there was a motion to
dismiss the writ of error for the want of jurisdiction and
opposition to the grant of certiorari. The decision is the
more striking because on the same day, in an opinion
immediately preceding which was prepared for the Court
by the same Justice, 4 jurisdiction had been denied to a
federal court (the Supreme Court of the District of
Columbia) of a suit by citizens of the United States,
taxpayers and members of a voluntary association
organized to support the Constitution, in which it was
sought to have the Nineteenth Amendment declared
unconstitutional and to enjoin the Secretary of State from
proclaiming its ratification and the Attorney General
from taking steps to enforce it. Fairchild v. Hughes, 258
U.S. 126. The Court held that the plaintiffs' alleged
interest in the question submitted was not such as to
afford a basis for the proceeding; that the plaintiffs had
only the right possessed by every citizen "to require that
the Government be administered according to law and
that the public moneys be not wasted" and that this
general right did not entitle a private [***1390] citizen
to bring such a suit as the one in question in the federal
courts. 5 It [*441] would be difficult to imagine a
situation in which the adequacy of the petitioners' interest
to invoke our appellate jurisdiction in Leser v. Garnett
could have been more sharply presented.
4 Mr. Justice Brandeis.
5 Id., pp. 129, 130. See, also, Frothingham v.
Mellon, 262 U.S. 447, 480, 486, 487.
The effort to distinguish that case on the ground that
the plaintiffs were qualified voters in Maryland, and
hence could complain of the admission to the registry of
those alleged not to be qualified, is futile. The interest of
the plaintiffs in Leser v. Garnett as merely qualified
voters at general elections is certainly much less
impressive than the interest of the twenty senators in the
instant case. This is not a mere intra-parliamentary
controversy but the question relates to legislative action
deriving its force solely from the provisions of the
Federal Constitution, and the twenty senators were not
only qualified to vote on the question of ratification but
their votes, if the Lieutenant Governor were excluded as
not being a part of the legislature for that purpose, would
have been decisive in defeating the ratifying resolution.
[3]We are of the opinion that Hawke v. Smith and
Leser v. Garnett are controlling authorities, but in view
of the wide range the discussion has taken we may refer
to some other instances in which the question of what
constitutes a sufficient interest to enable one to invoke
our appellate jurisdiction has been involved. The
principle that the applicant must show a legal interest in
the controversy has been maintained. It has been applied
repeatedly in cases where municipal corporations have
challenged state legislation affecting their alleged rights
and obligations. Being but creatures of the State,
municipal corporations have no standing to invoke the
contract clause or the provisions of the Fourteenth
Amendment of the Constitution in opposition to the will
of their creator. 6 But there [*442] has been recognition
of the legitimate interest of public [**977] officials and
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administrative commissions, federal and state, to resist
the endeavor to prevent the enforcement of statutes in
relation to which they have official duties. Under the
Urgent Deficiencies Act, 7 the Interstate Commerce
Commission, and commissions representing interested
States which have intervened, are entitled as "aggrieved
parties" to an appeal to this Court from a decree setting
aside an order of the Interstate Commerce Commission,
though the United States refuses to join in the appeal.
Interstate Commerce Comm'n v. Oregon-Washington R.
& N. Co., 288 U.S. 14. So, this Court may grant
certiorari, on the application of the Federal Trade
Commission, to review decisions setting aside its orders.
8 Federal Trade Comm'n v. Curtis Publishing Co., 260
U.S. 568. Analogous provisions authorize certiorari to
review decisions against the National Labor Relations
Board. 9 National Labor Relations Board v. Jones &
Laughlin Corp., 301 U.S. 1. Under § 266 of the Judicial
Code (28 U. S. C. 380), where an injunction is sought to
restrain the enforcement of a statute of a State or an order
of its administrative board or commission, upon the
[***1391] ground of invalidity under the Federal
Constitution, the right of direct appeal to this Court from
the decree of the required three judges is accorded
whether the injunction be granted or denied. Hence, in
case the injunction is granted, the state board is entitled to
appeal. See, for example, South Carolina Highway Dept.
v. Barnwell Brothers, 303 U.S. 177.
6 Pawhuska v. Pawhuska Oil Co., 250 U.S. 394;
Trenton v. New Jersey, 262 U.S. 182; Risty v.
Chicago, R. I. & P. Ry. Co., 270 U.S. 378;
Williams v. Mayor, 289 U.S. 36.
7 Act of October 22, 1913, 38 Stat. 219; 28 U. S.
C. 47, 47a, 345.
8 15 U. S. C. 45; 28 U. S. C. 348.
9 29 U. S. C. 160 (e). See, also, as to orders of
Federal Communications Commission, 47 U. S.
C. 402 (e).
The question of our authority to grant certiorari, on
the application of state officers, to review decisions of
state courts declaring state statutes, which these officers
[*443] seek to enforce, to be repugnant to the Federal
Constitution, has been carefully considered and our
jurisdiction in that class of cases has been sustained. The
original Judiciary Act of 1789 provided in § 25 10 for the
review by this Court of a judgment of a state court
"where is drawn in question the validity of a statute of, or
an authority exercised under any State, on the ground of
their being repugnant to the constitution, treaties or laws
of the United States, and the decision is in favour of such
their validity"; that is, where the claim of federal right
had been denied. By the Act of December 23, 1914, 11 it
was provided that this Court may review on certiorari
decisions of state courts sustaining a federal right. The
present statute governing our jurisdiction on certiorari
contains the corresponding provision that this Court may
exercise that jurisdiction "as well where the federal claim
is sustained as where it is denied." Jud. Code, § 237 (b);
28 U. S. C. 344 (b). The plain purpose was to provide an
opportunity, deemed to be important and appropriate, for
the review of the decisions of state courts on
constitutional questions however the state court might
decide them. Accordingly where the claim of a
complainant that a state officer be restrained from
enforcing a state statute because of constitutional
invalidity is sustained by the state court, the statute
enables the state officer to seek a reversal by this Court of
that decision.
10 1 Stat. 73, 85, 86.
11 38 Stat. 790; see, also, Act of September 6,
1916, 39 Stat. 726.
In Blodgett v. Silberman, 277 U.S. 1, 7, the Court
granted certiorari on the application of the State Tax
Commissioner of Connecticut who sought review of the
decision of the Supreme Court of Errors of the State so
far as it denied the right created by its statute to tax the
transfer of certain securities, which had been placed for
safekeeping in New York, on the ground that they [*444]
were not within the taxing jurisdiction of Connecticut.
Entertaining jurisdiction, this Court reversed the
judgment in that respect. Id., p. 18.
[**978] The question received most careful
consideration in the case of Boynton v. Hutchinson Gas
Co., 291 U.S. 656, where the Supreme Court of Kansas
had held a state statute to be repugnant to the Federal
Constitution, and the Attorney General of the State
applied for certiorari. His application was opposed upon
the ground that he had merely an official interest in the
controversy and the decisions were invoked upon which
the Government relies in challenging our jurisdiction in
the instant case. 12 Because of its importance, and
contrary to our usual practice, the Court directed oral
argument on the question whether certiorari should be
granted, and after that argument, upon mature
deliberation, granted the writ. The writ was subsequently
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dismissed but only because of a failure of the record to
show service of summons and severance upon the
appellees in the state court who were not parties to the
proceedings here. 292 U.S. 601. This decision with
respect to the scope of our jurisdiction has been followed
in later [***1392] cases. In Morehead v. New York ex
rel. Tipaldo, 298 U.S. 587, we granted certiorari on an
application by the warden of a city prison to review the
decision of the Court of Appeals of the State on habeas
corpus, ruling that the minimum wage law of the State
violated the Federal Constitution. This Court decided the
case on the merits. In Kelly v. Washington ex rel. Foss
Co., 302 U.S. 1, we granted certiorari, on the application
of the state authorities charged with the enforcement of
the state law relating to the inspection and regulation of
vessels, to review the decision of the state court holding
the statute invalid in its application to navigable waters.
We concluded that the state act had a permissible field of
operation and the decision of the [*445] state court in
holding the statute completely unenforceable in deference
to federal law was reversed.
12 See cases cited in Note 3.
This class of cases in which we have exercised our
appellate jurisdiction on the application of state officers
may be said to recognize that they have an adequate
interest in the controversy by reason of their duty to
enforce the state statutes the validity of which has been
drawn in question. In none of these cases could it be said
that the state officers invoking our jurisdiction were
sustaining any "private damage."
While one who asserts the mere right of a citizen and
taxpayer of the United States to complain of the alleged
invalid outlay of public moneys has no standing to invoke
the jurisdiction of the federal courts ( Frothingham v.
Mellon, 262 U.S. 447, 480, 486, 487), the Court has
sustained the more immediate and substantial right of a
resident taxpayer to invoke the interposition of a court of
equity to enjoin an illegal use of moneys by a municipal
corporation. Crampton v. Zabriskie, 101 U.S. 601, 609;
Frothingham v. Mellon, supra. In Heim v. McCall, 239
U.S. 175, we took jurisdiction on a writ of error sued out
by a property owner and taxpayer, who had been given
standing in the state court, for the purpose of reviewing
its decision sustaining the validity under the Federal
Constitution, of a state statute as applied to contracts for
the construction of public works in the City of New York,
the enforcement of which was alleged to involve
irreparable loss to the city and hence to be inimical to the
interests of the taxpayer.
In Smiley v. Holm, 285 U.S. 355, we granted
certiorari on the application of one who was an "elector,"
as well as a "citizen" and "taxpayer," and who assailed
under the Federal Constitution a state statute establishing
congressional districts. Passing upon the merits we held
that the function of a state legislature in prescribing the
time, place and manner of holding elections for
representatives [*446] in Congress under Article I, § 4,
was a law-making function in which the veto power of
the state governor participates, if under the state
constitution the governor has that power in the course of
the making of state laws, and accordingly reversed the
judgment of the state court. We took jurisdiction on
certiorari in a similar case from New York where the
petitioners were "citizens and voters of the State" who
had sought a mandamus to compel the Secretary of State
of New York to certify that representatives in Congress
were to be elected in the congressional districts as
defined [**979] by a concurrent resolution of the Senate
and Assembly of the legislature. There the state court,
construing the provision of the Federal Constitution as
contemplating the exercise of the law-making power, had
sustained the defense that the concurrent resolution was
ineffective as it had not been submitted to the Governor
for approval, and refused the writ of mandamus. We
affirmed the judgment. [***1393] Koenig v. Flynn, 285
U.S. 375.
In the light of this course of decisions, we find no
departure from principle in recognizing in the instant case
that at least the twenty senators whose votes, if their
contention were sustained, would have been sufficient to
defeat the resolution ratifying the proposed constitutional
amendment, have an interest in the controversy which,
treated by the state court as a basis for entertaining and
deciding the federal questions, is sufficient to give the
Court jurisdiction to review that decision.
Second. The participation of the Lieutenant
Governor. -- Petitioners contend that, in the light of the
powers and duties of the Lieutenant Governor and his
relation to the Senate under the state constitution, as
construed by the supreme court of the state, the
Lieutenant Governor was not a part of the "legislature" so
that under Article V of the Federal Constitution, he could
be permitted to have a deciding vote on the ratification of
the [*447] proposed amendment, when the senate was
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equally divided.
Whether this contention presents a justiciable
controversy, or a question which is political in its nature
and hence not justiciable, is a question upon which the
Court is equally divided and therefore the Court
expresses no opinion upon that point.
Third. The effect of the previous rejection of the
amendment and of the lapse of time since its submission.
1. The state court adopted the view expressed by
text-writers that a state legislature which has rejected an
amendment proposed by the Congress may later ratify. 13
The argument in support of that view is that Article V
says nothing of rejection but speaks only of ratification
and provides that a proposed amendment shall be valid as
part of the Constitution when ratified by three-fourths of
the States; that the power to ratify is thus conferred upon
the State by the Constitution and, as a ratifying power,
persists despite a previous rejection. The opposing view
proceeds on an assumption that if ratification by
"Conventions" were prescribed by the Congress, a
convention could not reject and, having adjourned sine
die, be reassembled and ratify. It is also premised, in
accordance with views expressed by text-writers, 14 that
ratification if once given cannot afterwards be rescinded
and the amendment rejected, and it is urged that the same
effect in the exhaustion of the State's power to act should
be ascribed to rejection; that a State can act "but once,
either by convention or through its legislature."
13 Jameson on Constitutional Conventions, §§
576-581; Willoughby on the Constitution, § 329a.
14 Jameson, op. cit., §§ 582-584; Willoughby,
op. cit., § 329a; Ames, "Proposed Amendments to
the Constitution," House Doc. No. 353, Pt. 2, 54th
Cong., 2d Sess., pp. 299, 300.
[*448] Historic instances are cited. In 1865, the
Thirteenth Amendment was rejected by the legislature of
New Jersey which subsequently ratified it, but the
question did not become important as ratification by the
requisite number of States had already been proclaimed.
15 The question did arise in connection with the adoption
of the Fourteenth Amendment. The legislatures of
Georgia, North Carolina and South Carolina had rejected
the amendment in November and December, 1866. 16
New governments were erected in those States (and in
others) under the direction of Congress. 17 The new
legislatures ratified the amendment, that of North
Carolina on July 4, 1868, that of South Carolina on July
9, 1868, and that of Georgia on July 21, 1868. 18 Ohio
and New Jersey first ratified and then passed [***1394]
resolutions withdrawing their consent. 19 As there were
then thirty-seven States, twenty-eight were needed to
constitute the requisite three-fourths. [**980] On July 9,
1868, the Congress adopted a resolution requesting the
Secretary of State to communicate "a list of the States of
the Union whose legislatures have ratified the fourteenth
article of amendment," 20 and in Secretary Seward's
report attention was called to the action of Ohio and New
Jersey. 21 On July 20th Secretary Seward issued a
proclamation reciting the ratification by twenty-eight
States, including North Carolina, South Carolina, Ohio
and New Jersey, and stating that it appeared that Ohio
and New Jersey had since passed resolutions withdrawing
their consent and that "it is [*449] deemed a matter of
doubt and uncertainty whether such resolutions are not
irregular, invalid and therefore ineffectual." The
Secretary certified that if the ratifying resolutions of Ohio
and New Jersey were still in full force and effect,
notwithstanding the attempted withdrawal, the
amendment had become a part of the Constitution. 22 On
the following day the Congress adopted a concurrent
resolution which, reciting that three-fourths of the States
having ratified (the list including North Carolina, South
Carolina, Ohio and New Jersey), 23 declared the
Fourteenth Amendment to be a part of the Constitution
and that it should be duly promulgated as such by the
Secretary of State. Accordingly, Secretary Seward, on
July 28th, issued his proclamation embracing the States
mentioned in the congressional resolution and adding
Georgia. 24
15 13 Stat. 774, 775; Jameson, op. cit., § 576;
Ames, op. cit., p. 300.
16 15 Stat. 710.
17 Act of March 2, 1867, 14 Stat., p. 428. See
White v. Hart, 13 Wall. 646, 652.
18 15 Stat. 710.
19 15 Stat. 707.
20 Cong. Globe, 40th Cong., 2d Sess., p. 3857.
21 Cong. Globe, 40th Cong., 2d Sess., p. 4070.
22 15 Stat. 706, 707.
23 15 Stat. 709, 710.
24 15 Stat. 710, 711; Ames, op. cit., App. No.
1140, p. 377.
Thus the political departments of the Government
dealt with the effect both of previous rejection and of
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attempted withdrawal and determined that both were
ineffectual in the presence of an actual ratification. 25
While there were special circumstances, because of the
action of the Congress in relation to the governments of
the rejecting States (North Carolina, South Carolina and
Georgia), these circumstances were not recited in
proclaiming ratification and the previous action taken in
these States was set forth in the proclamation as actual
previous rejections by the respective legislatures. This
[*450] decision by the political departments of the
Government as to the validity of the adoption of the
Fourteenth Amendment has been accepted.
25
The legislature of New York which had
ratified the Fifteenth Amendment in 1869
attempted, in January, 1870, to withdraw its
ratification, and while this fact was stated in the
proclamation by Secretary Fish of the ratification
of the amendment, and New York was not needed
to make up the required three-fourths, that State
was included in the list of ratifying States. 16
Stat. 1131; Ames, op. cit., App. No. 1284, p. 388.
[4]We think that in accordance with this historic
precedent the question of the efficacy of ratifications by
state legislatures, in the light of previous rejection or
attempted withdrawal, should be regarded as a political
question pertaining to the political departments, with the
ultimate authority in the Congress in the exercise of its
control over the promulgation of the adoption of the
amendment.
[5]The precise question as now raised is whether,
when the legislature of the State, as we have found, has
actually ratified the proposed amendment, the Court
should restrain the state officers from certifying the
ratification to the Secretary of State, because of an earlier
rejection, and thus prevent the question from coming
before the political departments. We find no basis in
either Constitution or statute for such judicial action.
[***1395] Article V, speaking solely of ratification,
contains no provision as to rejection. 26 Nor has the
Congress enacted a statute relating to rejections. The
statutory provision with respect to constitutional
amendments is as follows:
26 Compare Article VII.
"Whenever official notice is received at the
Department of State that any amendment proposed to the
Constitution of the United States has been adopted,
according to the provisions of the Constitution, the
Secretary of State shall forthwith cause the amendment to
be published, with his certificate, specifying the States by
which the same may have been adopted, and that the
same has become valid, to all intents [**981] and
purposes, as a part of the Constitution of the United
States." 27
27 5 U. S. C. 160. From Act of April 20, 1818, §
2; 3 Stat. 439; R. S. § 205.
[*451] The statute presupposes official notice to the
Secretary of State when a state legislature has adopted a
resolution of ratification. We see no warrant for judicial
interference with the performance of that duty. See Leser
v. Garnett, supra, p. 137.
2. The more serious question is whether the proposal
by the Congress of the amendment had lost its vitality
through lapse of time and hence it could not be ratified by
the Kansas legislature in 1937. The argument of
petitioners stresses the fact that nearly thirteen years
elapsed between the proposal in 1924 and the ratification
in question. It is said that when the amendment was
proposed there was a definitely adverse popular
sentiment and that at the end of 1925 there had been
rejection by both houses of the legislatures of sixteen
States and ratification by only four States, and that it was
not until about 1933 that an aggressive campaign was
started in favor of the amendment. In reply, it is urged
that Congress did not fix a limit of time for ratification
and that an unreasonably long time had not elapsed since
the submission; that the conditions which gave rise to the
amendment had not been eliminated; that the prevalence
of child labor, the diversity of state laws and the disparity
in their administration, with the resulting competitive
inequalities, continued to exist. Reference is also made
to the fact that a number of the States have treated the
amendment as still pending and that in the proceedings of
the national government there have been indications of
the same view. 28 It is said that there were fourteen
ratifications in 1933, four in 1935, one in 1936, and three
in 1937.
28 Sen. Rep. 726, 75th Cong., 1st Sess.; Sen.
Rep. 788, 75th Cong., 1st Sess.: Letter of the
President on January 8, 1937, to the Governors of
nineteen non-ratifying States whose legislatures
were to meet in that year, urging them to press for
ratification. New York Times, January 9, 1937, p.
5.
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[*452] [6]We have held that the Congress in proposing
an amendment may fix a reasonable time for ratification.
Dillon v. Gloss, 256 U.S. 368. There we sustained the
action of the Congress in providing in the proposed
Eighteenth Amendment that it should be inoperative
unless ratified within seven years. 29 No limitation of
time for ratification is provided in the instant case either
in the proposed amendment or in the resolution of
submission. But petitioners contend that, in the absence
of a limitation by the Congress, the Court can and should
decide what is a reasonable period within which
ratification may be had. We are unable to agree with that
contention.
29
40 Stat. 1050. A similar provision was
inserted in the Twenty-first Amendment. United
States v. Chambers, 291 U.S. 217, 222.
It is true that in Dillon v. Gloss the Court said that
nothing was found in Article V which suggested that an
amendment once proposed was to be open to ratification
for all time, or that ratification in some [***1396] States
might be separated from that in others by many years and
yet be effective; that there was a strong suggestion to the
contrary in that proposal and ratification were but
succeeding steps in a single endeavor; that as
amendments were deemed to be prompted by necessity,
they should be considered and disposed of presently; and
that there is a fair implication that ratification must be
sufficiently contemporaneous in the required number of
States to reflect the will of the people in all sections at
relatively the same period; and hence that ratification
must be within some reasonable time after the proposal.
These considerations were cogent reasons for the
decision in Dillon v. Gloss that the Congress had the
power to fix a reasonable time for ratification. But it does
not follow that, whenever Congress has not exercised that
power, the Court should take upon itself the
responsibility of deciding what constitutes [*453] a
reasonable time and determine accordingly the validity of
ratifications. That question was not involved in Dillon v.
Gloss and, in accordance with familiar principle, what
was there said must be read in the light of the point
decided.
Where are to be found the criteria for such a judicial
determination? None are to be found in Constitution or
statute. In their endeavor to answer this question
petitioners' [**982] counsel have suggested that at least
two years should be allowed; that six years would not
seem to be unreasonably long; that seven years had been
used by the Congress as a reasonable period; that one
year, six months and thirteen days was the average time
used in passing upon amendments which have been
ratified since the first ten amendments; that three years,
six months and twenty-five days has been the longest
time used in ratifying. To this list of variables, counsel
add that "the nature and extent of publicity and the
activity of the public and of the legislatures of the several
States in relation to any particular proposal should be
taken into consideration." That statement is pertinent, but
there are additional matters to be examined and weighed.
When a proposed amendment springs from a conception
of economic needs, it would be necessary, in determining
whether a reasonable time had elapsed since its
submission, to consider the economic conditions
prevailing in the country, whether these had so far
changed since the submission as to make the proposal no
longer responsive to the conception which inspired it or
whether conditions were such as to intensify the feeling
of need and the appropriateness of the proposed remedial
action. In short, the question of a reasonable time in
many cases would involve, as in this case it does involve,
an appraisal of a great variety of relevant conditions,
political, social and economic, which can hardly be said
to be within the appropriate range of evidence receivable
in a court of justice [*454] and as to which it would be
an extravagant extension of judicial authority to assert
judicial notice as the basis of deciding a controversy with
respect to the validity of an amendment actually ratified.
On the other hand, these conditions are appropriate for
the consideration of the political departments of the
Government. The questions they involve are essentially
political and not justiciable. They can be decided by the
Congress with the full knowledge and appreciation
ascribed to the national legislature of the political, social
and economic conditions which have prevailed during the
period since the submission of the amendment.
[7]Our decision that the Congress has the power
under Article V to fix a reasonable limit of time for
ratification in proposing an amendment proceeds upon
the assumption that the question, what is a reasonable
time, lies within the congressional province. If it be
deemed that such a question is an open one when the
limit has not been fixed in advance, we think that it
should also be regarded as an open one for the
consideration [***1397] of the Congress when, in the
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presence of certified ratifications by three-fourths of the
States, the time arrives for the promulgation of the
adoption of the amendment. The decision by the
Congress, in its control of the action of the Secretary of
State, of the question whether the amendment had been
adopted within a reasonable time would not be subject to
review by the courts.
[8]It would unduly lengthen this opinion to attempt to
review our decisions as to the class of questions deemed
to be political and not justiciable. In determining whether
a question falls within that category, the appropriateness
under our system of government of attributing finality to
the action of the political departments and also the lack of
satisfactory criteria for a judicial determination [*455]
are dominant considerations. 30 There are many
illustrations in the field of our conduct of foreign
relations, where there are "considerations of policy,
considerations of extreme magnitude, and certainly,
entirely incompetent to the examination and decision of a
court of justice." Ware v. Hylton, 3 Dall. 199, 260. 31
Questions involving similar considerations are found in
the government of our internal affairs. Thus, under
Article IV, § 4, of the Constitution, providing that the
United States "shall guarantee to every State in this
Union a Republican Form of Government," we have held
that it rests with the Congress to decide what government
is the established one in a State and whether or not it is
republican in form. [**983] Luther v. Borden, 7 How.
1, 42. In that case Chief Justice Taney observed that
"when the senators and representatives of a State are
admitted into the councils of the Union, the authority of
the government under which they are appointed, as well
as its republican character, is recognized by the proper
constitutional authority. And its decision is binding on
every other department of the government, and could not
be questioned in a judicial tribunal." So, it was held in the
same case that under the provision of the same Article for
the protection of each of the States "against domestic
violence" it rested with the Congress "to determine upon
the means proper to be adopted to fulfil this guarantee."
Id., p. 43. So, in Pacific Telephone Co. v. Oregon, 223
U.S. 118, we considered that questions arising under the
guaranty of [*456] a republican form of government had
long since been "definitely determined to be political and
governmental" and hence that the question whether the
government of Oregon had ceased to be republican in
form because of a constitutional amendment by which the
people reserved to themselves power to propose and
enact laws independently of the legislative assembly and
also to approve or reject any act of that body, was a
question for the determination of the Congress. It would
be finally settled when the Congress admitted the
senators and representatives of the State.
30 See Willoughby, op. cit., pp. 1326, et seq.;
Oliver P. Field, "The Doctrine of Political
Questions in the Federal Courts," 8 Minnesota
Law Review, 485; Melville Fuller Weston,
"Political Questions," 38 Harvard Law Review,
296.
31 See, also, United States v. Palmer, 3 Wheat.
610, 634; Foster v. Neilson, 2 Pet. 253, 309; Doe
v. Braden, 16 How. 635, 657; Terlinden v. Ames,
184 U.S. 270, 288.
For the reasons we have stated, which we think to be
as compelling as those which underlay the cited
decisions, we think that the Congress in controlling the
promulgation of the adoption of a constitutional
amendment has the final determination of the question
whether by lapse of time its proposal of the amendment
had lost its vitality prior to the required ratifications. The
state officials [***1398] should not be restrained from
certifying to the Secretary of State the adoption by the
legislature of Kansas of the resolution of ratification.
As we find no reason for disturbing the decision of
the Supreme Court of Kansas in denying the mandamus
sought by petitioners, its judgment is affirmed but upon
the grounds stated in this opinion.
Affirmed.
CONCUR BY: BLACK
CONCUR
Concurring opinion by MR. JUSTICE BLACK, in
which MR. JUSTICE ROBERTS, MR. JUSTICE
FRANKFURTER and MR. JUSTICE DOUGLAS join.
Although, for reasons to be stated by MR. JUSTICE
FRANKFURTER, we believe this cause should be
dismissed, the ruling of the Court just announced
removes from the case the question of petitioners'
standing to sue. Under the compulsion of that ruling, 1
MR. JUSTICE ROBERTS, [*457] MR. JUSTICE
FRANKFURTER, MR. JUSTICE DOUGLAS and I have
participated in the discussion of other questions
considered by the Court and we concur in the result
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reached, but for somewhat different reasons.
415, 420.
4 Field v. Clark, 143 U.S. 649, 672.
1 Cf., Helvering v. Davis, 301 U.S. 619, 639-40.
The Constitution grants Congress exclusive power to
control submission of constitutional amendments. Final
determination by Congress that ratification by
three-fourths of the States has taken place "is conclusive
upon the courts." 2 In the exercise of that power,
Congress, of course, is governed by the Constitution.
However, whether submission, intervening procedure or
Congressional determination of ratification conforms to
the commands of the Constitution, calls for decisions by
a "political department" of questions of a type which this
Court has frequently designated "political." And decision
of a "political question" by the "political department" to
which the Constitution has committed it "conclusively
binds the judges, as well as all other officers, citizens and
subjects of . . . government." 3 Proclamation under
authority of Congress [**984] that an amendment has
been ratified will carry with it a solemn assurance by the
Congress that ratification has taken place as the
Constitution commands. Upon this assurance a
proclaimed amendment must be accepted as a part of the
[*458] Constitution, leaving to the judiciary its
traditional authority of interpretation. 4 To the extent that
the Court's opinion in the present case even impliedly
assumes a power to make judicial interpretation of the
exclusive constitutional authority of Congress over
submission and ratification of amendments, we are
unable to agree.
2 Leser v. Garnett, 258 U.S. 130, 137.
3 Jones v. United States, 137 U.S. 202, 212;
Foster v. Neilson, 2 Pet. 253, 309, 314; Luther v.
Borden, 7 How. 1, 42; In re Cooper, 143 U.S.
472, 503; Pacific States Telephone Co. v. Oregon,
223 U.S. 118; Davis v. Ohio, 241 U.S. 565, 569.
"And in this view, it is not material to inquire, nor
is it the province of the court to determine,
whether the executive ["political department"] be
right or wrong. It is enough to know that in the
exercise of his constitutional functions, he had
decided the question. Having done this, under the
responsibilities which belong to him, it is
obligatory on the people and government of the
Union. . . . this court have laid down the rule, that
the action of the political branches of the
government in a matter that belongs to them, is
conclusive." Williams v. Suffolk Ins. Co., 13 Pet.
The state court below assumed jurisdiction to
determine whether the proper procedure is being
followed between submission and final adoption.
However, it is apparent that judicial review of or
pronouncements upon a supposed limitation of
[***1399] a "reasonable time" within which Congress
may accept ratification; as to whether duly authorized
state officials have proceeded properly in ratifying or
voting for ratification; or whether a State may reverse its
action once taken upon a proposed amendment; and
kindred questions, are all consistent only with an ultimate
control over the amending process in the courts. And this
must inevitably embarrass the course of amendment by
subjecting to judicial interference matters that we believe
were intrusted by the Constitution solely to the political
branch of government.
The Court here treats the amending process of the
Constitution in some respects as subject to judicial
construction, in others as subject to the final authority of
the Congress. There is no disapproval of the conclusion
arrived at in Dillon v. Gloss, 5 that the Constitution
impliedly requires that a properly submitted amendment
must die unless ratified within a "reasonable time." Nor
does the Court now disapprove its prior assumption of
power to make such a pronouncement. And it is not
made clear that only Congress has constitutional power to
determine if there is any such implication in Article V of
the Constitution. On the other hand, the Court's opinion
declares that Congress has the exclusive power to [*459]
decide the "political questions" of whether a State whose
legislature has once acted upon a proposed amendment
may subsequently reverse its position, and whether, in the
circumstances of such a case as this, an amendment is
dead because an "unreasonable" time has elapsed. No
such division between the political and judicial branches
of the government is made by Article V which grants
power over the amending of the Constitution to Congress
alone. Undivided control of that process has been given
by the Article exclusively and completely to Congress.
The process itself is "political" in its entirety, from
submission until an amendment becomes part of the
Constitution, and is not subject to judicial guidance,
control or interference at any point.
5 256 U.S. 368, 375.
Since Congress has sole and complete control over
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the amending process, subject to no judicial review, the
views of any court upon this process cannot be binding
upon Congress, and insofar as Dillon v. Gloss attempts
judicially to impose a limitation upon the right of
Congress to determine final adoption of an amendment, it
should be disapproved. If Congressional determination
that an amendment has been completed and become a
part of the Constitution is final and removed from
examination by the courts, as the Court's present opinion
recognizes, surely the steps leading to that condition must
be subject to the scrutiny, control and appraisal of none
save the Congress, the body having exclusive power to
make that final determination.
Congress, possessing exclusive power over the
amending process, cannot be bound by and is under no
duty to accept the pronouncements upon that exclusive
power by this Court or by the Kansas courts. Neither
state nor federal courts can review that power. Therefore,
any judicial expression amounting to more than mere
acknowledgment of exclusive [**985] Congressional
power over the political process of amendment is a mere
admonition to [*460] the Congress in the nature of an
advisory opinion, given wholly without constitutional
authority.
Opinion of MR. JUSTICE FRANKFURTER.
It is the view of MR. JUSTICE ROBERTS, MR.
JUSTICE BLACK, MR. JUSTICE DOUGLAS and
myself that the petitioners have no standing in this Court.
In endowing this Court with "judicial Power" the
Constitution presupposed an historic content for that
phrase and relied on assumption by the judiciary of
authority only over [***1400] issues which are
appropriate for disposition by judges. The Constitution
further explicitly indicated the limited area within which
judicial action was to move -- however far-reaching the
consequences of action within that area -- by extending
"judicial Power" only to "Cases" and "Controversies."
Both by what they said and by what they implied, the
framers of the Judiciary Article gave merely the outlines
of what were to them the familiar operations of the
English judicial system and its manifestations on this side
of the ocean before the Union. Judicial power could
come into play only in matters that were the traditional
concern of the courts at Westminster and only if they
arose in ways that to the expert feel of lawyers
constituted "Cases" or "Controversies." It was not for
courts to meddle with matters that required no subtlety to
be identified as political issues. 1 And even as to the
kinds of questions which were the staple of judicial
business, it was not for courts to pass upon them as
abstract, intellectual problems but only if a concrete,
living contest between adversaries called for the
arbitrament of law. Compare Muskrat v. United States,
219 U.S. 346; Tutun v. United States, 270 U.S. 568;
Willing v. Chicago [*461] Auditorium Assn., 277 U.S.
274; Nashville, C. & St. L. Ry. Co. v. Wallace, 288 U.S.
249.
1 For an early instance of the abstention of the
King's Justices from matters political, see the
Duke of York's Claim to the Crown, House of
Lords, 1460, 5 Rot. Parl. 375, reprinted in
Wambaugh, Cases on Constitutional Law, 1.
As abstractions, these generalities represent common
ground among judges. Since, however, considerations
governing the exercise of judicial power are not
mechanical criteria but derive from conceptions regarding
the distribution of governmental powers in their
manifold, changing guises, differences in the application
of canons of jurisdiction have arisen from the beginning
of the Court's history. 2 Conscious or unconscious
leanings toward the serviceability of the judicial process
in the adjustment of public controversies clothed in the
form of private litigation inevitably affect decisions. For
they influence awareness in recognizing the relevance of
conceded doctrines of judicial self-limitation and rigor in
enforcing them.
2 See e. g. the opinion of Mr. Justice Iredell in
Chisholm v. Georgia, 2 Dall. 419, 429;
concurring opinion of Mr. Justice Johnson in
Fletcher v. Peck, 6 Cranch 87, 143; and the cases
collected in the concurring opinion of Mr. Justice
Brandeis in Ashwander v. Tennessee Valley
Authority, 297 U.S. 288, 341.
Of all this, the present controversy furnishes
abundant illustration. Twenty-one members of the
Kansas Senate and three members of its House of
Representatives brought an original mandamus
proceeding in the Supreme Court of that State to compel
the Secretary of its Senate to erase an endorsement on
Kansas "Senate Concurrent Resolution No. 3" of January
1937, to the effect that it had been passed by the Senate,
and instead to endorse thereon the words "not passed."
They also sought to restrain the officers of both Senate
and House from authenticating and delivering it to the
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Governor of the State for transmission to the Secretary of
State of the United States. These Kansas legislators
resorted to their Supreme Court claiming that there was
no longer an amendment open for ratification by Kansas
and that, in any event, it had not been ratified by the
"legislature" of [*462] Kansas, the constitutional organ
for such ratification. See Article V of the Constitution of
the United States. The Kansas Supreme Court held that
the Kansas legislators had a right to its judgment on these
claims, but on the merits decided against them and denied
[***1401] a writ of mandamus. Urging that such denial
was [**986] in derogation of their rights under the
Federal Constitution, the legislators, having been granted
certiorari to review the Kansas judgment, 303 U.S. 632,
ask this Court to reverse it.
matter how seriously infringement of the Constitution
may be called [**987] into question, this is not the
tribunal for its challenge except by those who have some
specialized interest of their own to vindicate, apart from a
political concern which belongs to all. Stearns v. Wood,
236 U.S. 75; Fairchild v. Hughes, 258 U.S. 126.
3 This is subject to some narrow exceptions not
here relevant. See, e. g., McKnett v. St. Louis &
S. F. Ry. Co., 292 U.S. 230.
4 As to advisory opinions in use in a few of the
state courts, see J. B. Thayer, Advisory Opinions,
reprinted in Legal Essays by J. B. Thayer, at 42 et
seq.; article on "Advisory Opinions," 1 Enc. Soc.
Sci. 475. As to advisory opinions in Canada, see
Attorney-General for Ontario v. Attorney-General
for Canada [1912] A. C. 571. Speaking of the
Canadian system, Lord Chancellor Haldane, in
Attorney General for British Columbia v.
Attorney General for Canada [1914] A. C. 153,
162, said: "It is at times attended with
inconveniences, and it is not surprising that the
Supreme Court of the United States should have
steadily refused to adopt a similar procedure, and
should have confined itself to adjudication on the
legal rights of litigants in actual controversies."
For further animadversions on advisory
pronouncements by judges, see Lord Chancellor
Sankey in In re The Regulation and Control of
Aeronautics in Canada [1932] A. C. 54, 66: "We
sympathize with the view expressed at length by
Newcombe, J., which was concurred in by the
Chief Justice, [of Canada] as to the difficulty
which the Court must experience in endeavoring
to answer questions put to it in this way."
It is not our function, and it is beyond our power, to
write legal essays or to give legal opinions, however
solemnly requested and however great the national
emergency. See the correspondence between Secretary
of State Jefferson and Chief Justice Jay, 3 Johnson,
Correspondence and Public Papers of John Jay, 486-89.
Unlike the role allowed to judges in a few state courts
and to the Supreme Court of Canada, our exclusive
business is litigation. 4 The requisites of litigation are not
satisfied [*463] when questions of constitutionality
though conveyed through the outward forms of a
conventional court proceeding do not bear special
relation to a particular litigant. The scope and
consequences of our doctrine of judicial review over
executive and legislative action [*464] should make us
observe [***1402] fastidiously the bounds of the
litigious process within which we are confined. 5 No
Australia followed our Constitutional practice
in restricting her courts to litigious business. The
experience of English history which lay behind it
was thus put in the Australian Constitutional
Convention by Mr. (later Mr. Justice) Higgins: "I
feel strongly that it is most inexpedient to break in
on the established practice of the English law, and
secure decisions on facts which have not arisen
yet. Of course, it is a matter that lawyers have
experience of every day, that a judge does not
give the same attention, he can not give that same
attention, to a suppositious case as when he feels
the pressure of the consequences to a litigant
before him. . . . But here is an attempt to allow
this High Court, before cases have arisen, to make
a pronouncement upon the law that will be
binding. I think the imagination of judges, like
Our power to do so is explicitly challenged by the
United States as amicus curiae, but would in any event
have to be faced. See Mansfield, C. & L. M. Ry. Co. v.
Swan, 111 U.S. 379, 382. To whom and for what causes
the courts of Kansas are open are matters for Kansas to
determine. 3 But Kansas can not define the contours of
the authority of the federal courts, and more particularly
of this Court. It is our ultimate responsibility to
determine who may invoke our judgment and under what
circumstances. Are these members of the Kansas
legislature, therefore, entitled to ask us to adjudicate the
grievances of which they complain?
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that of other persons, is limited, and they are not
able to put before their minds all the complex
circumstances which may arise and which they
ought to have in their minds when giving a
decision. If there is one thing more than another
which is recognized in British jurisprudence it is
that a judge never gives a decision until the facts
necessary for that decision have arisen." Rep. Nat.
Austral. Conv. Deb. (1897) 966-67.
5
See the series of cases beginning with
Hayburn's Case, 2 Dall. 409, through United
States v. West Virginia, 295 U.S. 463.
In the familiar language of jurisdiction, these Kansas
legislators must have standing in this Court. What is
their distinctive claim to be here, not possessed by every
Kansan? What is it that they complain of, which could
not be complained of here by all their fellow citizens?
The answer requires analysis of the grievances which
they urge.
They say that it was beyond the power of the Kansas
legislature, no matter who voted or how, to ratify the
Child Labor Amendment because for Kansas there was
no Child Labor Amendment to ratify. Assuming that an
amendment proposed by the Congress dies of inanition
after what is to be deemed a "reasonable" time, they
claim that, having been submitted in 1924, the proposed
Child Labor Amendment was no longer alive in 1937.
Or, if alive, it was no longer so for Kansas because, by a
prior resolution of rejection in 1925, Kansas had
exhausted her power. In no respect, however, do these
objections relate to any secular interest that pertains to
these Kansas legislators apart from interests that belong
to the entire commonalty of Kansas. The fact that these
legislators are part of the ratifying mechanism while the
ordinary citizen of Kansas is not, is wholly irrelevant to
this issue. On this aspect of the case the problem would
be exactly the same if all but one legislator had voted for
ratification.
[*465] Indeed the claim that the Amendment was
dead or that it was no longer open to Kansas to ratify, is
not only not an interest which belongs uniquely to these
Kansas legislators; it is not even an interest special to
Kansas. For it is the common concern of every citizen of
the United States whether the Amendment is still alive, or
whether Kansas could be included among the necessary
"three-fourths of the several States."
These legislators have no more standing on these
claims of unconstitutionality to attack "Senate Concurrent
Resolution No. 3" than they would have standing here to
attack some Kansas statute claimed by them to offend the
Commerce Clause. By as much right could a member of
the Congress who had voted against the passage of a bill
because moved by constitutional scruples urge before this
Court our duty to consider his arguments of
unconstitutionality.
Clearly a Kansan legislator would have no standing
had he brought suit in a federal court. Can the Kansas
Supreme Court transmute the general interest in these
constitutional claims into the individualized legal interest
indispensable here? No doubt the bounds of such legal
interest have a penumbra which gives some freedom in
judging fulfilment of our jurisdictional requirements.
The doctrines affecting standing to sue in the federal
courts will not be treated as mechanical yardsticks in
assessing state court ascertainments of legal interest
brought here for review. For the creation of a vast
domain of legal interests is in the keeping of the states,
and from time to time state courts and legislators give
legal protection to new individual interests. Thus, while
the ordinary state taxpayer's suit is not recognized in the
federal courts, it affords adequate standing for review of
state decisions when so recognized [***1403] by state
courts. Coyle v. Smith, 221 U.S. 559; Heim v. McCall,
239 U.S. 175.
[*466] But it by no means follows that a state court
ruling on the adequacy of legal interest is binding here.
Thus, in Tyler v. Judges, 179 U.S. 405, the notion was
rejected that merely because the Supreme Judicial Court
of Massachusetts found an interest of sufficient legal
significance for assailing a statute, this Court must
consider such claim. Again, this Court has consistently
held that the interest of a state official in vindicating the
Constitution of the United States gives him no legal
standing here to attack the constitutionality of a state
statute in order to avoid compliance with it. Smith v.
Indiana, 191 U.S. 138; Braxton County Court v. West
Virginia, 208 U.S. 192; Marshall v. Dye, 231 U.S. 250;
Stewart v. Kansas City, 239 U.S. 14. Nor can recognition
by a state [**988] court of such an undifferentiated,
general interest confer jurisdiction on us. Columbus &
Greenville Ry. Co. v. Miller, 283 U.S. 96, reversing
Miller v. Columbus & Greenville Ry., 154 Miss. 317; 122
So. 366. Contrariwise, of course, an official has a legally
recognized duty to enforce a statute which he is charged
with enforcing. And so, an official who is obstructed in
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the performance of his duty under a state statute because
his state court found a violation of the United States
Constitution may, since the Act of December 23, 1914,
38 Stat. 790, ask this Court to remove the fetters against
enforcement of his duty imposed by the state court
because of an asserted misconception of the Constitution.
Such a situation is represented by Blodgett v. Silberman,
277 U.S. 1, and satisfied the requirement of legal interest
in Boynton v. Hutcheson, 291 U.S. 656, certiorari
dismissed on another ground in 292 U.S. 601. 6
6 A quick summary of the jurisdiction of this
Court over state court decisions leaves no room
for doubt that the fact that the present case is here
on certiorari is wholly irrelevant to our
assumption of jurisdiction. Section 25 of the First
Judiciary Act gave reviewing power to this Court
only over state court decisions denying a claim of
federal right. This restriction was, of course, born
of fear of disobedience by the state judiciaries of
national authority. The Act of September 6, 1916,
39 Stat. 726, withdrew from this obligatory
jurisdiction cases where the state decision was
against a "title, right, privilege, or immunity"
claimed to exist under the Constitution, laws,
treaties or authorities of the United States. This
change, which was inspired mainly by a desire to
eliminate from review as of right cases arising
under the Federal Employers' Liability Act, left
such review only in cases where the validity of a
treaty, statute or authority of the United States
was drawn into question and the decision was
against the validity, and in cases where the
validity of a statute of a state or a state authority
was drawn into question on the grounds of
conflict with federal law and the decision was in
favor of its validity. The Act of February 13,
1925, 43 Stat. 936, 937, extended this process of
restricting our obligatory jurisdiction by
transferring to review by certiorari cases in which
the state court had held invalid an "authority"
claimed to be exercised under the laws of the
United States or in which it had upheld, against
claims of invalidity on federal grounds, an
"authority" exercised under the laws of the states.
Neither the terms of these two restrictions nor the
controlling comments in committee reports or by
members of this Court who had a special share in
promoting the Acts of 1916 and 1925, give any
support for believing that by contracting the range
of obligatory jurisdiction over state adjudications
Congress enlarged the jurisdiction of the Court by
removing the established requirement of legal
interest as a threshold condition to being here.
Nor does the Act of December 23, 1914, 38
Stat. 790, touch the present problem. By that Act,
Congress for the first time gave this Court power
to review state court decisions sustaining a federal
right. For this purpose it made certiorari
available. The Committee reports and the debates
on this Act prove that its purpose was merely to
remove the unilateral quality of Supreme Court
review of state court decisions on constitutional
questions as to which this Court has the ultimate
say. The Act did not create a new legal interest as
a basis of review here; it built on the settled
doctrine that an official has a legally recognizable
duty to carry out a statute which he is supposed to
enforce.
Thus, prior to the Act of 1914, the Kentucky
case, post, p. 474, could not have come here at all,
and prior to 1916, the Kansas case would have
come here, if at all, by writ of error. By allowing
cases from state courts which previously could
not have come here at all to come here on
certiorari the Act of 1914 merely lifted the
previous bar -- that a federal claim had been
sustained -- but left every other requisite of
jurisdiction unchanged. Similarly, no change in
these requisites was affected by the Acts of 1916
and 1925 in confining certain categories of
litigation from the state courts to our discretionary
instead of obligatory reviewing power.
[*467] [***1404] We can only adjudicate an
issue as to which there is a claimant before us who has a
special, individualized stake in it. One who is merely the
self-constituted spokesman of a constitutional point of
view can not ask us to pass on it. The Kansas legislators
could not bring suit [**989] explicitly on behalf of the
people of the United States to determine whether Kansas
could still vote for the Child Labor Amendment. They
can not gain standing here by having brought such a suit
in their own names. Therefore, none of the petitioners
can here raise questions concerning the power of the
Kansas legislature to ratify the Amendment.
This disposes of the standing of the three members of
the lower house who seek to invoke the jurisdiction of
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this Court. They have no standing here. Equally without
[*468] litigious standing is the member of the Kansas
Senate who voted for "Senate Concurrent Resolution No.
3." He cannot claim that his vote was denied any
parliamentary efficacy to which it was entitled. There
remains for consideration only the claim of the twenty
nay-voting senators that the Lieutenant-Governor of
Kansas, the presiding officer of its Senate, had, under the
Kansas Constitution, no power to break the tie in the
senatorial vote on the Amendment, thereby depriving
their votes of the effect of creating such a tie. Whether
this is the tribunal before which such a question can be
raised by these senators must be determined even before
considering whether the issue which they pose is
justiciable. For the latter involves questions affecting the
distribution of constitutional power which should be
postponed to preliminary questions of legal standing to
sue.
[*469] The right of the Kansas senators to be here
is rested on recognition by Leser v. Garnett, 258 U.S.
130, of a voter's right to protect his franchise. The
historic source of this doctrine and the reasons for it were
explained in Nixon v. Herndon, 273 U.S. 536, 540. That
was an action for $ 5,000 damages against the Judges of
Elections for refusing to permit the plaintiff to vote at a
primary election in Texas. In disposing of the objection
that the plaintiff had no cause of action because the
subject matter of the suit was political, Mr. Justice
Holmes thus spoke for the Court: "Of course the petition
concerns political action but it alleges and seeks to
recover for private damage. That private damage may be
caused by such political action and may be recovered for
in a suit at law hardly has been [***1405] doubted for
over two hundred years, since Ashby v. White, 2 Ld.
Raym. 938, 3 id. 320, and has been recognized by this
Court." "Private damage" is the clue to the famous ruling
in Ashby v. White, supra, and determines its scope as well
as that of cases in this Court of which it is the
justification. The judgment of Lord Holt is permeated
with the conception that a voter's franchise is a personal
right, assessable in money damages, of which the exact
amount "is peculiarly appropriate for the determination of
a jury," see Wiley v. Sinkler, 179 U.S. 58, 65, and for
which there is no remedy outside the law courts.
"Although this matter relates to the parliament," said
Lord Holt, "yet it is an injury precedaneous to the
parliament, as my Lord Hale said in the case of
Bernardiston v. Soame, 2 Lev. 114, 116. The parliament
cannot judge of this injury, nor give damage to the
plaintiff for it: they cannot make him a recompense." 2
Ld. Raym. 938, 958.
The reasoning of Ashby v. White and the practice
which has followed it leave intra-parliamentary
controversies to parliaments and outside the scrutiny of
law courts. The procedures for voting in legislative
assemblies -- who [*470] are members, how and when
they should vote, what is the requisite number of votes
for different phases of legislative activity, what votes
were cast and how they were counted -- surely are
matters that not merely concern political action but are of
the very essence of political action, if "political" has any
connotation at all. Field v. Clark, 143 U.S. 649, 670, et
seq.; Leser v. Garnett, 258 U.S. 130, 137. In no sense are
they matters of "private damage." They pertain to
legislators not as individuals but as political
representatives executing the legislative process. To
open the law courts to such controversies is to have
courts sit in judgment on the manifold disputes
engendered by procedures for voting in legislative
assemblies. If the doctrine of Ashby v. White vindicating
the private rights of a voting citizen has not been doubted
for over two hundred years, it is equally significant that
for over two hundred years Ashby v. White has not been
sought to be put to purposes like the present. In seeking
redress here these Kansas senators have wholly
misconceived the functions of this Court. The writ of
[**990] certiorari to the Kansas Supreme Court should
therefore be dismissed.
DISSENT BY: BUTLER
DISSENT
MR. JUSTICE BUTLER, dissenting.
The Child Labor Amendment was proposed in 1924;
more than 13 years elapsed before the Kansas legislature
voted, as the decision just announced holds, to ratify it.
Petitioners insist that more than a reasonable time had
elapsed and that, therefore, the action of the state
legislature is without force. But this Court now holds
that the question is not justiciable, relegates it to the
"consideration of the Congress when, in the presence of
certified ratifications by three-fourths of the States the
time arrives for the promulgation of the adoption of the
amendment" and declares that the decision by Congress
would not be subject to review by the courts.
CBA47
Page 19
307 U.S. 433, *470; 59 S. Ct. 972, **990;
83 L. Ed. 1385, ***1405; 1939 U.S. LEXIS 1066
[*471] In Dillon v. Gloss, 256 U.S. 368, one
imprisoned for transportation of intoxicating liquor in
violation of § 3 of the National Prohibition Act, instituted
habeas corpus proceedings to obtain his release on the
ground that the Eighteenth Amendment was invalid
because the resolution proposing it declared that it should
not be operative unless ratified within seven years. The
Amendment was ratified in less than a year and a half.
We definitely held that Article V impliedly requires
amendments [***1406] submitted to be ratified within a
reasonable time after proposal; that Congress may fix a
reasonable time for ratification, and that the period of
seven years fixed by the Congress was reasonable.
We said:
"It will be seen that this article says nothing about
the time within which ratification may be had -- neither
that it shall be unlimited nor that it shall be fixed by
Congress. What, then, is the reasonable inference or
implication? Is it that ratification may be had at any time,
as within a few years, a century or even a longer period;
or that it must be had within some reasonable period
which Congress is left free to define?
"We do not find anything in the Article which
suggests that an amendment once proposed is to be open
to ratification for all time, or that ratification in some of
the States may be separated from that in others by many
years and yet be effective. We do find that which
strongly suggests the contrary. First, proposal and
ratification are not treated as unrelated acts, but as
succeeding steps in a single endeavor, the natural
inference being that they are not to be widely separated in
time. Secondly, it is only when there is deemed to be a
necessity therefor that amendments are to be proposed,
the reasonable implication being that when proposed they
are to be considered and disposed of presently. Thirdly,
as ratification is but the expression of the approbation of
the people and is to be effective when had in
three-fourths of the [*472] States, there is a fair
implication that it must be sufficiently contemporaneous
in that number of States to reflect the will of the people in
all sections at relatively the same period, which of course
ratification scattered through a long series of years would
not do. These considerations and the general purport and
spirit of the Article lead to the conclusion expressed by
Judge Jameson [in his Constitutional Conventions, 4th
ed. § 585] 'that an alteration of the Constitution proposed
today has relation to the sentiment and the felt needs of
today, and that, if not ratified early while that sentiment
may fairly be supposed to exist, it ought to be regarded as
waived, and not again to be voted upon, unless a second
time proposed by Congress.' That this is the better
conclusion becomes even more manifest when what is
comprehended in the other view is considered; for,
according to it, four amendments proposed long ago -two in 1789, one in 1810, and one in 1861 -- are still
pending and in a situation where their ratification in some
of the States many years since by representatives of
generations now largely forgotten may be effectively
supplemented in enough more States to make
three-fourths by representatives of the present or some
future generation. To that view few would be able to
subscribe, and in our opinion it is quite untenable. We
conclude that the fair inference or implication from
Article V is that the ratification must be within some
reasonable time after the proposal.
"Of the power of Congress, keeping within
reasonable limits, to fix a definite period for the
ratification we entertain no doubt. . . . Whether a definite
period for ratification shall be fixed so that all may know
what it is and speculation on what is a reasonable time
may be avoided, is, in our opinion, a matter of [**991]
detail which Congress may determine as an incident of its
power to designate the mode of ratification. It is not
questioned that seven years, the period fixed in this
instance, was reasonable, [*473] if power existed to fix
a definite time; nor could it well be questioned
considering the periods within which prior amendments
were ratified."
Upon the reasoning of our opinion in that case, I
would hold that more [***1407] than a reasonable time
had elapsed * and [*474] that the judgment of the
Kansas supreme court should be reversed.
*
CHRONOLOGY OF CHILD LABOR
AMENDMENT.
[A State is said to have "rejected" when both
Houses of its legislature passed resolutions of
rejection, and to have "refused to ratify" when
both Houses defeated resolution for ratification.]
June 2, 1924, Joint Resolution deposited in
State Department. In that year, Arkansas ratified;
North Carolina rejected. Ratification, 1;
rejection, 1.
CBA48
Page 20
307 U.S. 433, *474; 59 S. Ct. 972, **991;
83 L. Ed. 1385, ***1407; 1939 U.S. LEXIS 1066
1925, Arizona, California and Wisconsin ratified;
Florida, Georgia, Indiana, Kansas, Maine,
Massachusetts, Minnesota, Missouri, New
Hampshire, Pennsylvania, South Carolina,
Tennessee, Texas, Utah, and Vermont rejected;
Connecticut, Delaware and South Dakota refused
to ratify. Ratifications, 4; rejections, 16; refusals
to ratify, 3.
1926, Kentucky and Virginia rejected.
Ratifications, 4; rejections, 18; refusals to ratify,
3.
1927, Montana, ratified; Maryland rejected.
Ratifications, 5; rejections, 19; refusals to ratify,
3.
1931, Colorado ratified. Ratifications, 6;
rejections, 19; refusals to ratify, 3.
1933, Illinois, Iowa, Michigan, New Jersey, North
Dakota, Ohio, Oklahoma, Oregon, Washington and West
Virginia ratified as did also Maine, Minnesota, New
Hampshire, and Pennsylvania, which had rejected in
1925. Ratifications, 20; rejections, (eliminating States
subsequently ratifying) 15; refusals to ratify, 3.
1935, Idaho and Wyoming ratified, as did Utah and
Indiana, which had rejected in 1925. As in 1925,
Connecticut refused to ratify. Ratifications, 24;
rejections, 13; refusals to ratify, 3.
1936, Kentucky, which had rejected in 1926, ratified.
Ratifications, 25; rejections, 12; refusals to ratify, 3.
1937, Nevada and New Mexico ratified, as did
Kansas, which had rejected in 1925. Massachusetts,
which had rejected in 1925, refused to ratify.
Ratifications, 28; rejections, 11; refusals to ratify, 3.
Six States are not included in this list: Alabama,
Louisiana, Mississippi, Nebraska, New York and Rhode
Island. It appears that there has never been a vote in
Alabama or Rhode Island. Louisiana house of
representatives has three times (1924, 1934 and 1936)
defeated resolutions for ratification. In Mississippi, the
Senate adopted resolution for ratification in 1934, but in
1936 another Senate resolution for ratification was
adversely reported. In Nebraska, the House defeated
ratification resolutions in 1927 and 1935, but the Senate
passed such a resolution in 1929. In New York,
ratification was defeated in the House in 1935 and 1937,
and in the latter year, the Senate passed such a resolution.
The point that the question -- whether more than a
reasonable time had elapsed -- is not justiciable but one
for Congress after attempted ratification by the requisite
number of States, was not raised by the parties or by the
United States appearing as amicus curiae; it was not
suggested by us when ordering reargument. As the
Court, in the Dillon case, did directly decide upon the
reasonableness of the seven years fixed by the Congress,
it ought not now, without hearing argument upon the
point, hold itself to lack power to decide whether more
than 13 years between proposal by Congress and
attempted ratification by Kansas is reasonable.
MR. JUSTICE McREYNOLDS joins in this opinion.
CBA49
Page 1
Goudyloch E. DYER et al., Plaintiffs, v. W. Robert BLAIR, Speaker of the Illinois
House of Representatives, * Defendant. Dawn Clark NETSCH et al., Plaintiffs, v.
William C. HARRIS, President of the Illinois Senate, and W. Robert Blair, Speaker
of the Illinois House of Representatives, * Defendants
* We take judicial notice of the fact that W. Robert Blair has been succeeded by
William Redmond as Speaker of the Illinois House of Representatives and that
William C. Harris has been succeeded by Cecil Partee as President of the Illinois
Senate for the 79th Session of the Illinois General Assembly. Our disposition of
these cases makes it unnecessary for us to determine whether, if the mandatory
injunctions requiring certification of the ratification of the Equal Rights
Amendment during the 78th General Assembly sought in Count II of each
Complaint were to be granted, Illinois law would permit the officers sitting during
the 78th Session to so certify, or would require the current officers to perform
these ministerial acts. Fed.R.Civ.P. 25(d)(1) would provide for the automatic
substitution of these successors in office if such were necessary.
Nos. 73 C 1183, 74 C 2822
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS, EASTERN DIVISION
390 F. Supp. 1291; 1975 U.S. Dist. LEXIS 13734
February 20, 1975
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiffs filed actions
against defendants, the Speaker of the Illinois House of
Representatives and the President of the Illinois Senate,
which sought an injunction commanding defendants to
take certain action predicated on the assumption that the
Illinois legislature had effectively ratified the Equal
Rights Amendment. Defendants filed motions for partial
summary judgment.
OVERVIEW: The proposed Equal Rights Amendment
received a favorable vote by the Illinois legislature of
more than a majority but less than three-fifths of the
members of each house of the Illinois legislature.
Defendant president ruled that a three-fifths majority was
required for amendment to the federal Constitution.
Plaintiffs sought the entry of an injunction commanding
defendants to recognize the Amendment on the
assumption that the legislature had effectively ratified the
Amendment. The court denied plaintiffs' request for
injunctive relief and granted summary judgment to
defendants, holding that the action taken by the
legislature had not constituted an effective ratification
because the resolution had not passed by the vote
required by the applicable rules of procedure adopted by
both house of the legislature. The court ruled that U.S.
Const. art. V delegated to the state legislature the power
to determine its own voting requirements. Thus,
defendant president and the Illinois legislature was free to
accept or to reject the three-fifths requirement set forth in
CBA50
Page 2
390 F. Supp. 1291, *; 1975 U.S. Dist. LEXIS 13734, **
art. V and its acceptance of the three-fifths requirement
was valid.
OUTCOME: The court denied plaintiffs injunctive relief
and entered summary judgment for defendants in
plaintiffs' action to command defendants to declare that
the Illinois effectively ratified the Equal Rights
Amendment.
JUDGES: [**1] Stevens, Circuit Judge, Hoffman,
Senior District Judge, and Parsons, District Judge.
OPINION BY: STEVENS
Legislatures of three fourths of the
several States, or by Conventions
in three fourths thereof, as the one
or the other Mode of Ratification
may be proposed by the Congress;
Provided that no Amendment
which may be made prior to the
Year One thousand eight hundred
and eight shall in any Manner
affect the first and fourth Clauses
in the Ninth Section of the first
Article; and that no State, without
its Consent, shall be deprived of its
equal Suffrage in the Senate."
OPINION
[*1294] MEMORANDUM AND ORDER
STEVENS, Circuit Judge.
The question presented in each of these cases is
whether action taken during the 78th General Assembly
of the Illinois legislature constituted "ratification" of the
proposed Equal Rights Amendment to the United States
Constitution within the meaning of article V of that
instrument. 1 That amendment received a favorable vote
of more than a majority but less than three-fifths of the
members of each house of the Illinois legislature. The
question arises because the precise meaning of the term
"ratified" has not yet been given a federal definition, but
the Illinois State Constitution, as well as a rule adopted
by the Illinois House of Representatives and a ruling of
the President of the Illinois Senate in the 78th General
Assembly, have prescribed a three-fifths majority
requirement for amendment to the federal Constitution.
1 U.S.Const. art. V:
"The Congress, whenever two
thirds of both Houses shall deem it
necessary,
shall
propose
Amendments to this Constitution,
or, on the Application of the
Legislatures of two thirds of the
several States, shall call a
Convention
for
proposing
Amendments, which, in either
Case, shall be valid to all Intents
and Purposes, as Part of this
Constitution, when ratified by the
[**2] We first more fully describe the manner in
which the issue arose and identify the specific motions
which are before us; we next explain why we believe the
question is justiciable, notwithstanding defendants'
argument that it is a "political question"; we then explain
our understanding of the term "ratified" as used in article
V; and finally we decide whether Illinois ratified the
proposed Equal Rights Amendment during the 78th
General Assembly.
[*1295] I.
On March 22, 1972, Congress approved the proposed
27th Amendment to the Constitution and submitted it for
ratification to the legislatures of the states:
Resolved by the Senate and House of
Representatives of the United States of
America
in
Congress
assembled
(two-thirds of each House concurring
therein), That the following article is
proposed as an amendment to the
Constitution of the United States, which
shall be valid to all intents and purposes as
part of the Constitution when ratified by
the legislatures of three-fourths of the
several States within seven years from the
date of its submission by the Congress:
"ARTICLE -Section 1. Equality of rights under
the law shall not be denied or abridged by
the United [**3] States or by any State on
account of sex.
CBA51
Page 3
390 F. Supp. 1291, *1295; 1975 U.S. Dist. LEXIS 13734, **3
"Sec. 2. The Congress shall have the
power to enforce, by appropriate
legislation, the provisions of this article.
"Sec. 3. This amendment shall take
effect two years after the date of
ratification."
H.J.Res. 208, 86 Stat. 1523 (1972).
Article XIV, § 4 of the Illinois Constitution of 1970
provided, for the first time, 2 explicit procedures for the
Illinois General Assembly to approve amendments to the
United States Constitution:
§ 4. Amendments to the Constitution of
the United States
The affirmative vote of three-fifths of
the members elected to each house of the
General Assembly shall be required to
request Congress to call a Federal
Constitutional Convention, to ratify a
proposed amendment to the Constitution
of the United States, or to call a State
Convention to ratify a proposed
amendment to the Constitution of the
United States. The General Assembly
shall not take action on any proposed
amendment to the Constitution of the
United States submitted for ratification by
legislatures unless a majority of the
members of the General Assembly shall
have been elected after the proposed
amendment has been submitted for [**4]
ratification. The requirements of this
Section shall govern to the extent that they
are not inconsistent with requirements
established by the United States.
2 See S.H.A.Const. art. XIV, § 4 (Constitutional
Commentary) (1971).
No action was taken on the ratification of E.R.A. by
the Illinois House of Representatives during the 77th
General Assembly, which expired on January 9, 1973.
As Representative Juckett explained, this was in keeping
with the "waiting period" provision of article XIV, § 4. 3
On May 24, 1972, however, the Senate of the 77th
General Assembly did vote on Senate Joint Resolution
62, the E.R.A. The resolution received 30 affirmative
votes with 21 members opposed and one voting
"present," a constitutional majority 4 of the 59 Senate
members but six votes short of three-fifths. The Journal
of the Senate reports that, on this vote, "The motion
prevailed and the resolution was adopted. Ordered that
the Secretary inform the House of Representatives
thereof and [*1296] ask [**5] their concurrence
therein." Journal of the Illinois Senate 6227 (1972). 5
3 See Transcript of Proceedings of Illinois House
of Representatives, February 1, 1973, at 6,
attached as Exhibit 1 to Affidavit of Joseph R.
Lundy in Support of Plaintiffs' Motion for
Summary Judgment and in Opposition to
Defendant's Motion to Dismiss in Dyer
(hereinafter referred to as "Lundy Affidavit").
4
Defendants describe a "constitutional
majority" as a majority of the members elected to
the respective house and entitled to vote. This is
in contrast to a "simple majority" -- a majority of
those present and voting on the measure -- and an
"extraordinary majority" which requires some
higher percentage of the elected members to pass
a question. The three-fifths requirement in article
XIV, § 4 is, thus, an extraordinary majority.
5 There is no explanation contained in the record
of why S.J.R. 62 was deemed to pass with only a
constitutional majority in light of the provisions
of article XIV, § 4 of the Illinois Constitution.
Thirteen days prior to this vote, however, Illinois
Attorney General William J. Scott had given
Senator Esther Saperstein and Speaker of the
House W. Robert Blair his opinion that this
extraordinary
majority
requirement
was
inconsistent with articles V and VI of the United
States Constitution. Op.Ill.Att'y Gen. Nos. S-455,
S-456 (1972). It is known that these opinions led
the Senate to adopt Senate Rule 6, requiring only
a constitutional majority to ratify an amendment,
in early 1973. See p. 1298, infra.
[**6] At the outset of the 78th General Assembly,
on February 1, 1973, the Illinois House of
Representatives adopted rules to govern the ratification of
constitutional amendments. Rule 42 provided:
42. Resolutions Concerning Proposed
Constitutional Amendments.
CBA52
Page 4
390 F. Supp. 1291, *1296; 1975 U.S. Dist. LEXIS 13734, **6
(a) Resolutions proposing any
changes in the Constitutions of the State of
Illinois or the United States shall be so
designated and numbered consecutively.
7 See Transcript of Proceedings of Illinois House
of Representatives, April 4, 1973, at 44-45,
attached as Exhibit 2 to Lundy Affidavit; Journal
of Illinois House of Representatives 775 (1973).
(b) Such resolutions shall be read
once in full and assigned to committee in
the manner provided in Rule 31.
Sixteen House members formally dissented
from the failure of the House to adopt H.R. 176.
Journal of Illinois House of Representatives
776-777 (1973).
(c) Such resolutions shall be read in
full a second and third time on different
days and reproduced and placed on the
members' desks before the vote is taken on
final passage.
[**8]
8 Op.Ill.Att'y Gen. No. S-456 (1972). Attorney
General Scott subsequently reiterated his
conclusion that article XIV, § 4 of the Illinois
Constitution was of no effect in his opinion of
April 2, 1973, to W. Robert Blair (Op.Ill.Att'y
Gen. No. S-571 (1973)). He also concluded that
Ill.Rev.Stat.1971, ch. 7 1/2, § 12 (Act of June 25,
1963, Laws 1963, p. 1215, § 1), which requires a
favorable vote of a constitutional majority of each
house to ratify a proposed federal Constitutional
amendment, was in conflict with articles V and VI
of the United States Constitution, since in
enacting the act the legislature had acted in its
state legislative rather than its federal amendment
ratification capacity. Scott did conclude,
however, that "barring the use of extreme
standards patently in conflict with article V, each
house may, by its own rules, determine how many
votes are needed to ratify a proposed amendment
to the United States Constitution." Op.Ill.Att'y
Gen. No. S-571 (1973).
9
See remarks of Rep. Katz, Transcript of
Proceedings of Illinois House of Representatives,
April 4, 1973, at 8-13, 37-40, attached as Exhibit
2 to Lundy Affidavit; Rep. Wolfe, id. at 30-32;
Rep. MacDonald, id. at 32-33; Rep. Ewell, id. at
41-42; Rep. Davis, id. at 42-44.
(d) No such resolution shall pass
except upon an affirmative vote of 107
members.
(e) The provisions of this rule may be
suspended only upon an affirmative vote
of 107 members.
An attempt on that date by Representative Catania, one of
the plaintiffs herein, to amend Rule 42 to require only 89
votes, a constitutional majority, for the ratification of
amendments to the federal Constitution was withdrawn
and referred to the House Rules Committee. 6
6 See Transcript of Proceedings of Illinois House
of Representatives, February 1, 1973, at 9,
attached as Exhibit 1 to Lundy Affidavit; Journal
of the Illinois House of Representatives 106
(1973).
[**7] Subsequently, on April 4, 1973, House
Resolution 176, which would have amended Rule 42 in
that respect, was reported favorably by the Rules
Committee, but was defeated by the full House 69-90. 7
Debate over this Resolution centered on an opinion that
Illinois Attorney General William Scott had given then
Speaker of the House W. Robert Blair on May 11, 1972,
that article XIV, § 4 of the Illinois Constitution, insofar
as it required both a three-fifths vote and a waiting
period, was in conflict with articles V and VI of the
federal Constitution and, consequently, of no effect. 8
Proponents of the amendment to Rule 42 relied heavily
on this opinion. 9 Opponents felt [*1297] that the plain
language of the Illinois Constitution must govern until
such time as a court determined that such a conflict with
the federal Constitution existed. 10
[**9]
10
See remarks of Rep. Fleck, Transcript of
Proceedings of Illinois House of Representatives,
April 4, 1973, at 13-17, attached at Exhibit 2 to
Lundy Affidavit; Rep. Hanrahan, id. at 18-20;
Rep. Deuster, id. at 22-25; Rep. Duff, id. at 26-27;
Rep. Day, id. at 27-29; Rep. Walsh, id. at 35-36;
Rep. Laurino, id. at 40-41.
Thus, on April 4, 1973, Speaker W. Robert Blair
ruled that a three-fifths vote would be necessary to pass
the resolution ratifying E.R.A. When that vote was taken
that day, House Joint Resolution 14 received 95 votes,
CBA53
Page 5
390 F. Supp. 1291, *1297; 1975 U.S. Dist. LEXIS 13734, **9
with 72 members voting "no" and 2 "present."
Consequently, E.R.A. received more than the 89 votes
necessary for a constitutional majority but fewer than the
107 votes needed to reach the three-fifths requirement.
Blair ruled that the resolution had failed to pass. 11
11
Journal of the Illinois
Representatives 777-778 (1973).
House
of
On May 8, 1973, four members [**10] of the House
of Representatives filed the Complaint in case No. 73 C
1183 alleging, in Count I, that article XIV, § 4 of the
Illinois Constitution was void and of no effect under
articles V and VI of the federal Constitution. Plaintiffs
sought the convening of a three-judge court, a declaratory
judgment that the Illinois Constitution's three-fifths vote
requirement was null and void and of no legal effect, and
an injunction enjoining Blair from applying or enforcing
article XIV, § 4. In Count II, plaintiffs alleged that the
107-vote requirement contained in House Rule 42(d) was
derived from article XIV, § 4, and that that requirement
was similarly void and unenforceable as in contravention
of article V of the federal Constitution. As in Count I, the
convening of a three-judge court, a declaratory judgment
and a prohibitory injunction against Blair were sought. In
addition, however, plaintiffs sought a mandatory
injunction directing Blair to sign, authenticate and certify
the passage of House Joint Resolution 14, the E.R.A.
Defendant Blair, represented by Attorney General
Scott, moved to dismiss the complaint alleging, inter alia,
that plaintiffs lacked standing to bring [**11] the action,
12 that the court lacked jurisdiction over the subject
matter and that suit could not be brought against the
Speaker of the Illinois House of Representatives, 13 and
that article V of the United States Constitution does not
prescribe the manner in which a state legislature shall
ratify proposed amendments to the Constitution.
Plaintiffs moved for summary judgment on both counts
of their complaint. Fifteen members of the Illinois House
of Representatives sought leave to file a brief as amici
curiae in opposition to plaintiffs' motion for summary
judgment.
12 We think plaintiffs' standing is adequately
established by Coleman v. Miller, 307 U.S. 433,
437-446, 59 S. Ct. 972, 83 L. Ed. 1385, and Baker
v. Carr, 369 U.S. 186, 204-208, 82 S. Ct. 691, 7
L. Ed. 2d 663.
13 We find no tenth or eleventh amendment bar
to these suits. Georgia R.R. & Banking Co. v.
Redwine, 342 U.S. 299, 304, 72 S. Ct. 321, 96 L.
Ed. 335; Ex Parte Young, 209 U.S. 123, 159-160,
28 S. Ct. 441, 52 L. Ed. 714.
On May 21, [**12] 1974, after oral argument, we
granted defendant's Motion to Dismiss and denied
plaintiffs' Cross-Motion for Summary Judgment. 14 We
concluded that the ratification process began anew with
the convening of the 78th Session of the General
Assembly, and that no action had been requested of, or
taken by, the Illinois Senate during that Session. Thus,
we held that the issue presented us by plaintiffs was not
yet ripe for review.
Until the entire Legislature, including
both of its Houses, has acted, the question
whether its action, whatever form it may
have taken when completed, [*1298] will
constitute
"ratification"
cannot
appropriately be addressed by us.
Memorandum and Order, May 21, 1974, at 7.
14 In addition, we granted the motion of the
amici curiae. Memorandum and Order, May 21,
1974, at 3 n. 3.
On May 31, 1974, plaintiffs presented their first
Motion to Vacate Order of May 21, 1974, and for
Summary Judgment on Counts I and II, alleging that on
May 21, 1974, Senate Joint Resolution No. [**13] 68
(E.R.A.) was introduced and voted on in the Illinois
Senate.
President of the Senate William Harris, relying on
article XIV, § 4 of the Illinois Constitution, ruled that an
extra-ordinary majority of three-fifths would be required
to adopt the resolution. 15 Earlier in the session, the
Senate had adopted Senate Rule 6, which provided that
"[all] resolutions proposing amendments to the United
States Constitution . . . may be passed only on roll call by
a majority of Senators elected." According to Senator
Netsch, Rule 6 had been adopted in reliance on the
aforementioned Illinois Attorney General Opinion. 16 At
the conclusion of debate, a roll call vote on S.J.R. 68 was
taken. 17 Before the results of the roll call were
announced, however, Senator Saperstein, who had moved
the adoption of the measure, moved to postpone
consideration; the motion carried, and the Senate
adjourned. 18
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390 F. Supp. 1291, *1298; 1975 U.S. Dist. LEXIS 13734, **13
15 Transcript of Proceedings of Illinois Senate,
May 21, 1974, at 11, attached as Exhibit B to
Affidavit of Cecil A. Partee in Support of
Plaintiffs' Motion to Vacate Court's Opinion and
Order of May 21, 1974, and for Summary
Judgment in Dyer (hereinafter referred to as
"Partee Affidavit"); Journal of the Illinois Senate
5 (May 21, 1974).
[**14]
16 Transcript of Proceedings of Illinois Senate,
May 21, 1974, at 11-12, attached as Exhibit B to
Partee Affidavit.
17 Plaintiffs have informed us that S.J.R. 68
received 32 "yes" votes. Paragraph 4 of Partee
Affidavit.
18 Transcript of Proceedings of Illinois Senate,
May 21, 1974, at 57, attached as Exhibit B to
Partee Affidavit; Journal of the Illinois Senate 5
(May 21, 1974).
We denied plaintiffs' Motion to Vacate in our
Memorandum and Order of June 5, 1974, in light of the
fact that no official vote of the Illinois Senate had taken
place on May 21, 1974. We concluded that the issue
presented remained nonjusticiable. Consequently, we did
not reach that part of plaintiffs' motion that sought
summary judgment.
On July 12, 1974, plaintiffs filed their second Motion
to Vacate Order of May 21, 1974, and sought Summary
Declaratory Judgment on Count I of their Complaint.
They noted that on June 18, 1974, the Senate had
officially voted on S.J.R. 68. The resolution received 30
votes, a constitutional majority, with 24 opposing votes,
and one member voting present. As Senator Harris
[**15] had once again ruled that a three-fifths vote (36)
was required, however, the motion to adopt the resolution
was recorded as lost. 19 Subsequently, plaintiffs moved
for Expedited Consideration of their Motion to Vacate
Order of May 21, 1974, and for Summary Declaratory
Judgment on Count I of the Complaint.
19 See Journal of the Illinois Senate 21 (June 18,
1974).
We granted plaintiffs' Motion to Vacate Order of
May 21, 1974, in a Memorandum and Order filed
November 6, 1974, noting that the objection to ripeness
had been cured by the June 18, 1974, Senate vote. We
denied, however, the Motion for Expedited
Consideration.
In the intervening period a second suit (No. 74 C
2822) was filed by two members of the Illinois Senate
and the same four members of the Illinois House of
Representatives. Speaker of the House Blair and
President of the Senate Harris were named as defendants.
Count I, virtually identical to Count I of the original suit,
sought the convening of a three-judge court, a declaration
that article [**16] XIV, § 4 of the Illinois Constitution is
null and void and of no legal effect, and a prohibitory
injunction enjoining Blair and Harris from applying or
enforcing the constitutional provision. Count II similarly
sought a three-judge court, a declaration that article XIV,
§ [*1299] 4 and House Rule 42(d) are null and void and
of no legal effect, a prohibitory injunction enjoining Blair
and Harris from applying or enforcing article XIV, § 4 or
Rule 42(d), and a mandatory injunction requiring Blair
and Harris to sign, authenticate and certify the passage of
H.J.R. 14 and S.J.R. 68, respectively.
On October 4, 1974, plaintiffs in Netsch filed a
Motion to Convene Three-Judge Court and For Leave to
File Instanter Plaintiffs' Motion for Partial Summary
Declaratory Judgment on Count I of the Complaint.
Defendants' response to Plaintiffs' Motion for Partial
Summary Judgment was received, and on October 11,
Judge Bauer granted the Motion to Convene Three-Judge
Court. Subsequently, on October 21, 1974, it was
ordered that this case be transferred to the three-judge
panel that had the Dyer case under consideration.
Plaintiffs filed a Motion for Expedited Consideration of
Plaintiffs' [**17] Motion for Partial Summary
Judgment, for Leave to File Certain Memoranda of Law,
and to Set a Date for Oral Argument. Judge Hoffman,
acting for the three-judge court, on October 21, 1974,
took the Motion for Expedited Consideration under
advisement, granted plaintiffs leave to file the
memoranda, and denied the motion to set a date for oral
argument.
Consequently, the following motions are as yet
undecided in these two related cases: in Dyer, the Motion
for Summary Declaratory Judgment on Count I of the
Complaint; in Netsch, the Motion for Partial Summary
Declaratory Judgment on Count I of the Complaint and
the Motion for Expedited Consideration of the Motion for
Partial Summary Judgment.
II.
Defendants contend that these cases present a
"political question," that is to say, a question which can
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only be answered by either the executive or the
legislative branch of the Federal Government. The
contention is supported by alternative arguments: first,
that Congress has sole and complete control over the
entire amending process, subject to no judicial review;
and second, that even if every aspect of the amending
process is not controlled by Congress, the specific issue
raised [**18] in these cases is.
Congressional determination that
an amendment has been completed
and become a part of the
Constitution is final and removed
from examination by the courts, as
the Court's present opinion
recognizes, surely the steps leading
to that condition must be subject to
the scrutiny, control and appraisal
of none save the Congress, the
body having exclusive power to
make that final determination.
There is force to the first argument since it was
expressly accepted by four Justices of the Supreme Court
in Coleman v. Miller, 307 U.S. 433, 59 S. Ct. 972, 83 L.
Ed. 1385. 20 But since a majority [*1300] of the Court
refused to accept that position in that case, and since the
Court has on several occasions decided questions arising
under article V, even in the face of "political question"
contentions, 21 that argument is not one which a District
Court is free to accept. We therefore must consider
whether this particular issue is a "political question"
under the standards identified in cases such as Powell v.
McCormack, 395 U.S. 486, 518-519, 89 S. Ct. 1944, 23
L. Ed. 2d 491, and Baker v. Carr, 369 U.S. 186, 217, 82
S. Ct. 691, 7 L. Ed. 2d 663, and in Chief Justice Hughes'
opinion for the Court in Coleman v. Miller, supra.
"Congress,
possessing
exclusive power over the amending
process, cannot be bound by and is
under no duty to accept the
pronouncements
upon
that
exclusive power by this Court or
by the Kansas courts. Neither
State nor Federal courts can review
that power. Therefore, any judicial
expression amounting to more than
mere acknowledgment of exclusive
Congressional power over the
political process of amendment is a
mere admonition to the Congress
in the nature of an advisory
opinion, given wholly without
constitutional authority." 307 U.S.
at 459-460, 59 S. Ct. at 984.
20 The concurring opinion by Mr. Justice Black
was joined by Justices Roberts, Frankfurter and
Douglas. See 307 U.S. at 456, 59 S. Ct. 972.
Justice Black concluded his opinion as follows:
"The process itself is 'political' in
its entirety, from submission until
an amendment becomes part of the
Constitution, and is not subject to
judicial guidance, control or
interference at any point.
"Since Congress has sole and
complete
control
over
the
amending process, subject to no
judicial review, the views of any
court upon this process cannot be
binding upon Congress, and
insofar as Dillon v. Gloss [256
U.S. 368, 41 S. Ct. 510, 65 L. Ed.
994] attempts judicially to impose
a limitation upon the right of
Congress to determine final
adoption of an amendment, it
should be disapproved. If
Dicta in Luther v. Borden, 48 U.S. (7 How.) 1, 39,
12 L. Ed. 581, has been read to support Justice
Black's position. See Clark, The Supreme Court
and the Amending Process, 39 Va.L.Rev. 621,
630 (1953). However, as we read the passage in
question, the Court was focusing its attention on
the process of amending state constitutions, rather
than the federal Constitution.
[**19]
21
The Solicitor General and Charles Evans
Hughes, representing certain states as amici curiae
(see Dodd, Amending the Federal Constitution,
30 Yale L.J. 321, 322, 323 (1921)) specifically
raised the political question argument in the
National Prohibition Cases, 253 U.S. 350, 381, 40
S. Ct. 486, 64 L. Ed. 946; the amici curiae brief in
Hawke v. Smith (No. 1), 253 U.S. 221, 40 S. Ct.
495, 64 L. Ed. 871, also presented this issue (see
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Clark supra n. 20, at 628 n. 38).
See also United States v. Sprague, 282 U.S.
716, 51 S. Ct. 220, 75 L. Ed. 640; Leser v.
Garnett, 258 U.S. 130, 42 S. Ct. 217, 66 L. Ed.
505; Dillon v. Gloss, 256 U.S. 368, 41 S. Ct. 510,
65 L. Ed. 994; Hawke v. Smith (No. 2), 253 U.S.
231, 40 S. Ct. 498, 64 L. Ed. 877; Hollingsworth
v. Virginia, 3 U.S. (3 Dall.) 378, 1 L. Ed. 644.
The text of the Constitution does not expressly direct
Congress, rather than the judiciary, to interpret the word
"ratified" as it is used in article V, or to decide whether a
particular state has taken action which constitutes
ratification of a proposed amendment. 22 Rather than
relying on [**20] the "textual commitment" test for
identifying a political question, defendants primarily
suggest that the issue is one which may produce an
unseemly conflict between coordinate branches of
government unless we treat it as nonjusticiable. 23 We are
persuaded, however, that this suggestion is foreclosed by
the Supreme Court's rejection of a comparable argument
in Powell v. McCormack, supra.
22 See L. Orfield, The Amending of the Federal
Constitution 13 (1971).
23 They point to the danger of setting the federal
judiciary and the federal and state legislatures "at
constitutional loggerheads." Brief in Support of
Motion to Dismiss in Dyer at p. 11. Any
suggestion that the federal judiciary must avoid
potential conflict with state legislatures over the
proper interpretation of the federal Constitution is
answered by the supremacy clause, article VI, cl.
2, and cases such as Gibbons v. Ogden, 22 U.S. (9
Wheat.) 1, 6 L. Ed. 23, and Baker v. Carr, 369
U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663.
In that [**21] case the Court was requested to pass
on the constitutionality of the refusal by the House of
Representatives to seat the plaintiff, who had been duly
elected from the Eighteenth Congressional District of
New York, to serve in the 90th Congress. The refusal
was not based on the plaintiff's failure to meet the
requirements of age, citizenship and residence contained
in article I, § 2 of the Constitution. The question whether
the House could refuse to seat an elected representative
on any ground presented, quite obviously, a far more
dramatic potential for conflict between coordinate
branches than does the question involved in this case. In
the Powell case, after concluding that the "textual
commitment" formulation of the political question
doctrine did not bar federal courts from adjudicating the
plaintiff's claim, the Court discussed other considerations
as follows:
Respondents' alternate contention is that
the case presents a political question
because judicial resolution of petitioners'
claim would produce a "potentially
embarrassing
confrontation
between
coordinate branches" of the Federal
Government. But, as our interpretation of
Art. I, § 5, discloses, a determination
[**22] of petitioner Powell's right to sit
would require no more than an
interpretation
of
the
Constitution.
[*1301] Such a determination falls within
the traditional role accorded courts to
interpret the law, and does not involve a
"lack of the respect due [a] coordinate
[branch] of government," nor does it
involve an "initial policy determination of
a kind clearly for nonjudicial discretion."
Baker v. Carr, 369 U.S. 186, at 217, 82 S.
Ct. 691, at 710 [7 L. Ed. 2d 663]. Our
system of government requires that federal
courts on occasion interpret the
Constitution in a manner at variance with
the construction given the document by
another branch. The alleged conflict that
such an adjudication may cause cannot
justify the courts' avoiding their
constitutional responsibility. See United
States v. Brown, 381 U.S. 437, 85 S. Ct.
1707, 1722, 14 L. Ed. 2d 484 (1965);
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 613-614, 72 S. Ct. 863, 898,
96 L. Ed. 1153 (1952) (Frankfurter, J.,
concurring); Myers v. United States, 272
U.S. 52, 293, 47 S. Ct. 21, 84 [71 L. Ed.
160] (1926) (Brandeis, J., dissenting).
Nor are any of the other formulations
of a political question "inextricable [**23]
from the case at bar." Baker v. Carr, supra
[369 U.S.] at 217, 82 S. Ct. [691] at 710.
Petitioners seek a determination that the
House was without power to exclude
Powell from the 90th Congress, which, we
have seen, requires an interpretation of the
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Constitution -- a determination for which
clearly there are "judicially . . .
manageable standards." Finally, a judicial
resolution of petitioners' claim will not
result in "multifarious pronouncements by
various departments on one question." For,
as we noted in Baker v. Carr, supra, at
211, 82 S. Ct. [691], at 706, it is the
responsibility of this Court to act as the
ultimate interpreter of the Constitution.
Marbury v. Madison, 5 U.S. 137, 1 Cranch
(5 U.S.) 137, 2 L. Ed. 60 (1803). Thus, we
conclude that petitioners' claim is not
barred by the political question doctrine,
and having determined that the claim is
otherwise generally justiciable, we hold
that the case is justiciable.
395 U.S. at 548-549, 89 S. Ct. at 1978.
The Court's reasoning in Powell v. McCormack
requires a similar conclusion in this case. Decision of the
question presented requires no more than an
interpretation of the Constitution. Such a [**24]
decision falls squarely within the traditional role of the
federal judiciary to construe that document. 24 The
possibility that such an adjudication may conflict with the
views of Congress cannot justify the courts' avoiding
their constitutional responsibility. As the Supreme Court
pointedly noted in its citation of McPherson v. Blacker,
146 U.S. 1, 24, 13 S. Ct. 3, 36 L. Ed. 869, the possibility
that action might be taken in disregard of a final judicial
determination is an "inadmissible suggestion."
24 Although the Court will treat a certification
by a legislature that it has followed a prescribed
procedure in the enactment of a bill into law as
conclusively determining the facts certified, Field
v. Clark, 143 U.S. 649, 12 S. Ct. 495, 36 L. Ed.
294, the question whether the procedure followed
by Congress was the one prescribed by the
Constitution is a question the Court will answer.
See the first two conclusions announced in the
National Prohibition Cases, 253 U.S. 350, 386, 40
S. Ct. 486, 64 L. Ed. 946.
[**25] The strongest argument for regarding the
issue presented by these cases as a "political question"
rests on an asserted "lack of judicially discoverable and
manageable standards for resolving it." See Baker v. Carr,
369 U.S. at 217, 82 S. Ct. at 710. That argument is
buttressed by the holding in Coleman v. Miller, 307 U.S.
433, 59 S. Ct. 972, 83 L. Ed. 1385 that the question
whether the lapse of 13 years between the proposal of an
amendment and the favorable action by the Kansas
legislature made the ratification ineffective [*1302] was
a "political question" to be finally determined by
Congress. 25
25
In Coleman the Court also held that the
question whether the ratification of a proposed
amendment was effective notwithstanding a prior
rejection by the Kansas legislature was a political
question. The characterization of that question as
political rested largely on historic precedent. The
issue had previously been considered by
Congress; the Supreme Court found no basis for
judicial interference with a continuation of that
procedure for resolving that issue.
"We think that in accordance
with this historic precedent the
question of the efficacy of
ratifications by state legislatures, in
the light of previous rejection or
attempted withdrawal, should be
regarded as a political question
pertaining
to
the
political
departments, with the ultimate
authority in the Congress in the
exercise of its control over the
promulgation of the adoption of
the amendment." 307 U.S. at 450,
59 S. Ct. at 981.
That reasoning does not apply to the question
presented in these cases. For we have found no
historic precedent indicating that Congress has
previously considered a claim that a state
legislature had effectively ratified a proposed
amendment notwithstanding a failure to obtain the
favorable vote required by its own rules of
procedure.
[**26] That holding was based on the absence of
any acceptable criteria for making a judicial
determination of whether the proposed amendment had
lost its vitality through lapse of time. The Court noted
that different periods might be reasonable for different
proposed amendments and that varying economic or
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social conditions might support differing conclusions.
Such considerations, although entirely acceptable as a
predicate for decision by political departments of the
government, might be wholly inappropriate as a basis for
judicial decision. 26
26 "Where are to be found the criteria for such a
judicial determination? None are to be found in
Constitution or statute. . . . In short, the question
of a reasonable time in many cases would involve,
as in this case it does involve, an appraisal of a
great variety of relevant conditions, political,
social and economic, which can hardly be said to
be within the appropriate range of evidence
receivable in a court of justice and as to which it
would be an extravagant extension of judicial
authority to assert judicial notice as the basis of
deciding a controversy with respect to the validity
of an amendment actually ratified. On the other
hand, these conditions are appropriate for the
consideration of the political departments of the
Government. The questions they involve are
essentially political and not justiciable. They can
be decided by the Congress with the full
knowledge and appreciation ascribed to the
national legislature of the political, social and
economic conditions which have prevailed during
the period since the submission of the
amendment." 307 U.S. at 453-454, 59 S. Ct. at
981.
[**27] Although the issue in these cases is
somewhat comparable to the lapse of time issue in
Coleman in that the criteria for judicial determination are,
perhaps, equally hard to find, the answer does not depend
on economic, social or political factors that vary from
time to time and might well change during the interval
between the proposal and ratification. A question that
might be answered in different ways for different
amendments must surely be controlled by political
standards rather than standards easily characterized as
judicially manageable.
It is primarily the character of the standards, not
merely the difficulty of their application, that
differentiates between those which are political and those
which are judicial. The mere fact that a court has little or
nothing but the language of the Constitution as a guide to
its interpretation does not mean that the task of
construction is judicially unmanageable. Consider, for
example, the Supreme Court's comments in Dillon v.
Gloss on the problem of deciding whether or not a
ratification was timely:
It will be seen that this article says
nothing about the time within which
ratification may be had . . . . Neither the
debates [**28] in the federal convention
which framed the Constitution nor those in
the state conventions which ratified it shed
any light on the question.
...
That the Constitution contains no
express provision on the subject is not in
itself controlling [with regard to [*1303]
merits]; for with the Constitution, as with
a statute or other written instrument, what
is reasonably implied is as much a part of
it as what is expressed.
256 U.S. at 371, 41 S. Ct. at 511.
We are persuaded that the word "ratification as used
in article V of the federal Constitution must be
interpreted with the kind of consistency that is
characteristic of judicial, as opposed to political, decision
making. We conclude, therefore, that whatever the word
"ratification" means as it is used in article V, that
meaning must be constant for each amendment that
Congress may propose. We turn, then, to the problem of
ascertaining the meaning of that term.
III.
The power of a state legislature to ratify an
amendment to the federal Constitution is derived from
that instrument. By virtue of the supremacy clause in
article VI, 27 it is clear that the legislature's ratifying
function may not be abridged by a [**29] state. Mr.
Justice Brandeis, speaking for a unanimous court in Leser
v. Garnett, 258 U.S. 130, 42 S. Ct. 217, 66 L. Ed. 505,
made this point abundantly clear.
The second contention is that in the
Constitutions of several of the 36 states
named in the proclamation of the
Secretary of State there are provisions
which render inoperative the alleged
ratifications by their Legislatures. The
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390 F. Supp. 1291, *1303; 1975 U.S. Dist. LEXIS 13734, **29
argument is that by reason of the specific
provisions the legislatures were without
power to ratify. But the function of a state
Legislature in ratifying a proposed
amendment to the federal Constitution,
like the function of Congress in proposing
the amendment, is a federal function
derived from the federal Constitution; and
it transcends any limitations sought to be
imposed by the people of a state. Hawke
v. Smith, No. 1, 253 U.S. 221, 40 S. Ct.
495, 64 L. Ed. 871; Hawke v. Smith, No.
2, 253 U.S. 231, 40 S. Ct. 498, 64 L. Ed.
877; National Prohibition Cases, 253 U.S.
350, 386, 40 S. Ct. 486, 588, 64 L. Ed.
946.
258 U.S. at 136-137, 42 S. Ct. at 217.
27
"This Constitution, and the laws
of the United States which shall be
made in Pursuance thereof; and all
Treaties made, or which shall be
made, under the Authority of the
United States, shall be the supreme
Law of the Land; and the Judges,
in every State shall be bound
thereby, any Thing in the
Constitution or Laws of any State
to the Contrary notwithstanding."
Article VI, clause 2.
[**30] Quite clearly, therefore, if the federal
Constitution specifies that ratification shall be
accomplished in a particular way, or by a particular vote
of a state legislature or a state convention, no state may
superimpose a more stringent requirement on that federal
specification. The difficulty presented by the cases
before us, however, results from the fact that neither the
Constitution itself, nor the record of the deliberations of
the constitutional convention which drafted it, contains
any unambiguous description or definition of what the
state legislature must do in order to perform its federal
ratifying function.
History teaches us that the framers of the
Constitution were dissatisfied with the extraordinary
difficulty of amending the Articles of Confederation. 28
Accordingly, there was extensive discussion and debate
about article V of the new Constitution, but it is fair to
state that such deliberation was concerned almost
exclusively with the procedure for initiating proposed
amendments, 29 or with [*1304] the number of states
which must express their assent to a proposal in order to
make it effective. 30 We have found no evidence of any
significant discussion about [**31] the procedure which
a state legislature or state convention should follow in
deciding whether or not to ratify a proposal. 31
28 Article XIII of the Articles of Confederation
provided for amendment whenever it shall "be
agreed to in a Congress of the United States, and
be afterwards affirmed by the Legislatures of
every State."
29
On May 29, 1787, Edmund Randolph
proposed "that provision ought to be made for the
amendment of the Articles of Union whensoever
it shall seem necessary; and that the assent of the
national legislature ought not to be required
thereto." V J. Elliot, Debates on the Federal
Constitution 128 (1845). On that same day
Charles Pinckney submitted a plan for amendment
under which the legislature of the United States
would call a convention if two-thirds of the states
petitioned for one, or, alternatively, Congress,
with the consent of two-thirds of each House,
could propose amendments to the states for
ratification. Id. at 132. Col. Mason supported
Randolph's proposal that Congress play no role in
the amending process "because they may abuse
their power, and refuse their assent on that very
account." Id. at 182. When, on August 6, 1787,
the committee on detail reported a proposed draft
of the Constitution, it provided that Congress
must call a convention upon the application of the
legislatures of two-thirds of the states. Id. at 381.
Gouverneur Morris disagreed, arguing that "the
legislature should be left at liberty to call a
convention whenever they pleased." Id. at 498.
After this proposed article had been approved and
subsequently reconsidered, Roger Sherman
suggested that the legislature be empowered to
propose amendments to the states. Id. at 531.
Consideration of the proposed article was
postponed in order to take up the proposition of
James Madison, that contained the following
initiation procedure:
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390 F. Supp. 1291, *1304; 1975 U.S. Dist. LEXIS 13734, **31
"The legislature of the United
States, whenever two thirds of both
Houses shall deem necessary, or on
the application of two thirds of the
legislatures of the several states,
shall propose amendments to this
Constitution. . . ." Id.
This was subsequently amended on the motion of
Gouverneur Morris and Elbridge Gerry so as to
require a convention on application of two-thirds
of the states. Id. at 551. The resulting provision
reads as article V does now.
[**32]
30 Pinckney's original plan called for ratification
by two-thirds of the legislatures of the states. V.
J. Elliot, supra n. 29, at 132. Intervening drafts
provided for the ratification of amendments by a
national constitutional convention. Id. at 381. On
September 10, 1787, when Roger Sherman
proposed to amend the committee on detail draft
to provide for an alternate means of ratification by
state legislatures, James Wilson proposed that
two-thirds of the states be required to assent. Id.
at 531. That motion was defeated 5-6, at which
time Wilson proposed three-fourths, which was
agreed to. Id. Subsequently, on September 15,
Roger Sherman moved to strike out the
three-fourths requirement in favor of "leaving
future conventions to act in this matter, like
present convention, according to circumstances."
Id. at 551. This was defeated 3-7, id., resulting in
the language currently found in article V.
31 In presenting the advantages of article V in
The Federalist No. 43, Madison focused solely on
the initiation procedure:
"That useful alterations will be
suggested by experience, could not
but be foreseen. It was requisite,
therefore, that a mode for
introducing them should be
provided. The mode preferred by
the convention seems to be
stamped with every mark of
propriety. It guards equally against
that extreme facility, which would
render the Constitution too
mutable; and that extreme
difficulty, which might perpetuate
its discovered faults. It, moreover,
equally enables the general and the
State governments to originate the
amendment of errors, as they may
be pointed out by the experience
on one side, or on the other." The
Federalist No. 43, at 286 (Modern
Library ed.) (Madison).
[**33] Congress is, of course, given the power to
decide whether the ratifying process should be performed
by state conventions or by state legislatures, and the
Supreme Court has affirmed Congress' power to prescribe
a time limit within which the ratifying process must be
completed. 32 But the Constitution is totally silent with
respect to the procedure which each state convention or
each state legislature, as the case may be, should follow
in performing its ratifying function.
32 Dillon v. Gloss, 256 U.S. 368, 41 S. Ct. 510,
65 L. Ed. 994.
There can be no doubt about the fact that the
Constitution permits many aspects of the ratification
procedure to be determined by representatives of the
several states. As Professor Dodd has noted:
It should be remembered, however, that
ratification is by state legislatures, and that
although the state may not provide any
other method of ratification or impose
limitations upon the power to ratify, it
does seem to be clearly within the power
of the state through its constitution [**34]
or otherwise [*1305] to determine what
shall be the organization of the state's
representative legislative body, and what
shall be the quorum for action by that
body. It, of course, also rests within the
power of the state itself as to when regular
or special sessions of the state's
representative body shall meet, and as to
how that representative body shall be
organized. Dodd, Amending the Federal
Constitution, 30 Yale L.J. 321 344-345
(1921). 33
CBA61
Page 13
390 F. Supp. 1291, *1305; 1975 U.S. Dist. LEXIS 13734, **34
33 At page 65 of his treatise, The Amending of
the Federal Constitution (1971), Professor Orfield
made a similar observation:
"As a minimum power the state
could provide for the time and
place of meeting of the legislature,
whether it should be bicameral or
unicameral, the number and
election of its members, its
organization and officers. The
state could perhaps even abolish its
legislature altogether, at least as far
as Article Five is concerned,
although such action might be
regarded as a failure to maintain a
republican form of government."
decide to meet in joint session to consider the
proposed amendment, numerous other possible
standards, ranging from a simple majority of all
members present to highly complex formulae
designed to ensure that an amendment is not
ratified solely on the votes of the members of one
of the houses, present themselves.
[**35] Arguably, the vote required to effectuate a
ratification might be considered a procedural matter,
comparable to the determination of a quorum, subject to
control by the states. Alternatively, it can be argued with
equal force that since the term must have a federal
definition, and since the number of votes required to
ratify is a matter of critical importance, that number must
be set by federal law. Theoretically, the number might be
determined by at least five different standards.
A survey of the ratification majorities
required by the states to adopt federal
constitutional amendments, prepared by the
Illinois Legislative Council, has been supplied us
by the defendants. It reports that 24 states require
a majority of the elected representatives (a
constitutional majority); 17 states require a
majority of those present and voting (a simple
majority); 3 states require a majority of those
elected to the state senate and two-thirds of those
elected to the state house of representatives; 2
states require two-fifths of the members elected
and a majority of those voting; Louisiana requires
a majority of those elected to the state senate and
a majority of those present and voting in the state
house; Tennessee requires a majority of the
authorized
membership
of
each
house
notwithstanding the possible existence of
vacancies; Idaho requires two-thirds of those
elected.
First, since the entire ratification process is not
effective unless three-fourths of the state legislatures
have concurred, it might be inferred that a comparable
fraction of each body must support a ratifying resolution.
Second, it might be thought that a lesser extraordinary
majority -- such as the Illinois three-fifths requirement -of the legislators elected and eligible to vote would be
appropriate. Or, third, an extraordinary majority of the
legislators present and voting could be required.
Conceivably this latter extraordinary majority might be
obtained more easily than the fourth alternative, a vote of
51% of the elected legislators, a constitutional majority.
And fifth, as plaintiffs argue [**36] in this case, a simple
majority, a majority of a quorum -- or more precisely of
the legislators present when a quorum is present -- may
suffice. 34
[**37] The vote of the Kansas Legislature, which
under the holding in Coleman v. Miller, 307 U.S. 433, 59
S. Ct. 972, 83 L. Ed. 1385, constituted an effective
ratification, was 21 to 20. We may take it as decided,
therefore, that an extraordinary majority is not required
by federal law. 35 There is, moreover, some evidence
[*1306] that when article V was drafted the framers
assumed that state legislatures would act by majority
vote. 36 That evidence, like the text of article V itself, is
equally consistent with the view that a majority of a
quorum would be sufficient, or with a view that a
majority of the elected legislators would be required.
And, of course, it is also consistent with the view that the
framers did not intend to impose either of those
alternatives upon the state legislators, but, instead,
intended to leave that choice to the ratifying assemblies.
34 Professor Orfield notes: "Perhaps a simple
majority of a quorum of each House is sufficient."
Orfield, supra n. 33, at 66.
35 The fact that an extraordinary majority is not
required does not, of course, indicate that such a
majority may not be permitted. Moreover, the
fact that there is no constitutional impediment to
In addition, if the state legislature should
CBA62
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390 F. Supp. 1291, *1306; 1975 U.S. Dist. LEXIS 13734, **37
the utilization by the states of extraordinary
majorities for various other purposes, such as the
approval of bonded indebtedness, etc., as the
cases cited by amici curiae hold (see, e.g., Gordon
v. Lance, 403 U.S. 1, 91 S. Ct. 1889, 29 L. Ed. 2d
273; Brenner v. School District of Kansas City,
Mo., 403 U.S. 913, 91 S. Ct. 2225, 29 L. Ed. 2d
692), does not shed any light on the permissibility
of such a requirement in connection with the
performance by a state legislature of its federal
ratifying function.
[**38]
36 For example, during the Virginia Ratifying
Convention Patrick Henry argued:
But what is destructive and
mischievous, is, that three fourths
of the state legislatures, or of the
state conventions must concur in
the amendments when proposed!
In such numerous bodies, there
must
necessarily
be
some
designing, bad men. To suppose
that so large a number as three
fourths of the states will concur, is
to suppose that they will possess
genius, intelligence, and integrity,
approaching to miraculous. It
would indeed be miraculous that
they should concur in the same
amendments, or even in such as
would bear some likeness to one
another; or four of the smallest
states, that do not collectively
contain one tenth part of the
population of the United States,
may obstruct the most salutary and
necessary amendments. Nay, in
these four states six tenths of the
people
may
reject
these
amendments . . . . A bare majority
in these four small states may
hinder the adoption of amendments
. . . ." Quoted in III J. Elliot, supra,
n. 29 at 49-50.
Similarly, during the debates in the House on
the proposed Bill of Rights, Representative
Tucker remarked:
"I conceived it difficult, if not
impossible, to obtain essential
amendments by the way pointed
out in the constitution. . . . It will
be found, I fear, still more difficult
than I apprehended; for perhaps
these amendments . . . will be
submitted for ratification to the
Legislatures of the several States,
instead of State conventions, in
which case the chance is still
worse. The Legislatures of almost
all the States consist of two
independent, distinct bodies; the
amendments must be adopted by
three-fourths of such Legislatures;
that is to say, they must meet the
approbation of the majority of each
of
eighteen
deliberative
assemblies." Quoted in 2 B.
Schwartz, The Bill of Rights: A
Documentary History 1115 (1971).
[**39] This last view seems most plausible to us. If
the framers had intended to require the state legislatures
to act by simple majority, we think they would have said
so explicitly. When the Constitution requires action to be
taken by an extraordinary majority, that requirement is
plainly stated. 37 While the omission of a comparable
requirement in connection with ratification makes it quite
clear that a bare majority is permissible, it does not
necessarily indicate that either a simple majority or a
constitutional majority must be accepted as necessary.
We think the omission more reasonably indicates that the
framers intended to treat the determination of the vote
required to pass a ratifying resolution as an aspect of the
process that each state legislature, or state convention,
may specify for itself.
37 Two-thirds of the members present in the
Senate are required to convict in an impeachment
proceeding (art. I, § 3). Two-thirds of the
members of the House or Senate are required to
expel a member (art. 1, § 5). Two-thirds of the
members of each house are necessary to override
a Presidential veto (art. I, § 7). Two-thirds of the
members of the Senate concur in the making of all
treaties (art. II, § 2). Two-thirds of both houses
CBA63
Page 15
390 F. Supp. 1291, *1306; 1975 U.S. Dist. LEXIS 13734, **39
are needed to propose constitutional amendments,
and the legislatures or conventions of
three-fourths of the states must ratify such (art.
V). If a Presidential election is decided in the
House of Representatives, a quorum consists of a
member or members from two-thirds of the states
(amend. 12). Similarly, two-thirds of the
members of the Senate constitute a quorum for the
selection of a Vice-President (id.). A vote of
two-thirds of each house may remove the
disability imposed on persons having engaged in
rebellion or insurrection (amend. 14, § 3). A
two-thirds vote of both houses is required to
determine that the President continues to be
unable to discharge the powers and duties of his
office (amend. 25).
[**40] This conclusion is consistent with -- though
by no means compelled by -- the underlying philosophy
of the framers with regard to the respective roles of the
central government and the several state governments.
Madison expressed the [*1307] thought in urging
ratification of the Constitution in The Federalist No. 45:
The powers delegated by the proposed
Constitution to the federal government are
few and defined. Those which are to
remain in the State governments are
numerous and indefinite.
The Federalist No. 45, at 303 (Modern Library ed.)
(Madison). The ratifying power did not, of course,
"remain in the State governments" because it was created
by article V of the new Constitution. But the failure to
prescribe any particular ratification procedure, or
required vote to effectuate a ratification, is certainly
consistent with the basic understanding that state
legislatures should have the power and the discretion to
determine for themselves how they should discharge the
responsibilities committed to them by the federal
government. 38
38 At the time the framers inserted the provision
empowering the legislatures of two-thirds of the
states to apply to Congress for the calling of a
convention to propose amendments, James
Madison noted that no mention was made of the
procedures that would govern the activities of
such a convention. "[Difficulties] might arise as to
the form, the quorum, & c. which in constitutional
regulations ought to be as much as possible
avoided." V J. Elliot, supra, at 551. Nevertheless,
no change in the language of article V was made;
presumably, such procedural matters were left to
be determined by such a convention itself.
[**41] In addition, were we to conclude that article
V does mandate a particular majority vote in each state
legislature, we would then have to choose among the
myriad of possibilities set forth above. The fact that the
several states have actually adopted a wide variety of
ratification requirements (see n. 34, supra) demonstrates
that no one voting percentage or procedure is manifestly
preferable to all others. Moreover, this history manifests
a common understanding that there is no federal
objection to the state legislatures' independent
determination of their own voting requirements. The
absence of criticism of this independent action
throughout our history strongly suggests that the common
understanding existed when the original Constitution was
ratified and that the framers did not intend to prescribe
any one of the various alternatives as mandatory.
Plaintiffs in the cases before us have argued that
ratification under article V requires the use of a simple
majority, or, at most, a majority of those entitled to vote,
a constitutional majority. We find no principled reason
for holding that either of those procedures, rather than
any of the supermajority hybrids that have [**42]
emerged since article V was adopted, is the one mandated
by the Constitution. 39
39 Indeed, the alternative character of plaintiffs'
argument implicitly acknowledges that there may
be more than one permissible voting procedure;
such an express acknowledgment would, of
course, undermine their argument that the
constitutional interest in national uniformity
requires that all ratifying resolutions pass muster
under precisely the same voting standard. And, to
the extent that plaintiffs would accept the more
stringent requirement of a constitutional majority,
they must recognize that in some cases it may in
fact be easier to obtain a supermajority of those
present and voting than 50% plus one of those
elected and eligible to vote.
Article V identifies the body -- either a legislature or
a convention -- which must ratify a proposed amendment.
The act of ratification is an expression of consent to the
amendment by that body. By what means that body shall
CBA64
Page 16
390 F. Supp. 1291, *1307; 1975 U.S. Dist. LEXIS 13734, **42
decide to consent or not to consent is a matter for that
[**43] body to determine for itself. This conclusion is
not inconsistent with the premise that the definition of the
term "ratified" is a matter of federal law. The term
merely requires that the decision to consent or not to
consent to a proposed amendment be made by each
legislature, or by each convention, in accordance with
procedures which each such body shall prescribe. 40
40 This is not to suggest that we would entertain
a cause of action attacking a state ratification
certification on the grounds that the legislature
had failed to comply with its own procedures. As
the Court stated in Leser v. Garnett, 258 U.S. 130,
137, 42 S. Ct. 217, 218, 66 L. Ed. 505:
"As the legislatures of Tennessee
and of West Virginia had power to
adopt
the
resolutions
of
ratification, official notice to the
Secretary
[of
State],
duly
authenticated, that they had done
so, was conclusive upon him, and,
being certified to by his
proclamation, is conclusive upon
the courts."
[*1308] IV.
The Supreme Court has held that [**44] a state may
not inhibit its legislature's federal power to ratify a
proposed amendment to the United States Constitution by
requiring approval at a popular referendum; 41 it seems
equally clear that a state constitution may not require that
a new legislature be elected before the proposal may be
considered. 42 The Illinois Attorney General has on three
occasions expressed the opinion that a due regard for the
federal character of the legislature's ratifying function
must invalidate the Illinois constitutional requirement of
a favorable vote by a three-fifths majority. See nn. 5, 8,
supra.
41 Hawke v. Smith (No. 1), 253 U.S. 221, 40 S.
Ct. 495, 64 L. Ed. 871; National Prohibition
Cases, 253 U.S. 350, 40 S. Ct. 486, 64 L. Ed. 946.
42 Indeed, such a provision in the Tennessee
Constitution was held unconstitutional in Leser v.
Garnett, 258 U.S. 130, 136-137, 42 S. Ct. 217, 66
L. Ed. 505. One of the unenumerated state
constitutional provisions at issue therein was that
of Tennessee. See Leser v. Garnett, 139 Md. 46,
114 A. 840, 846-847 (1921).
[**45] The Attorney General's analysis is consistent
with ours. We have concluded that article V delegates to
the state legislatures -- or the state conventions depending
upon the mode of ratification selected by Congress -- the
power to determine their own voting requirements. The
decisions of the Supreme Court, as well as the text of
article V, illuminate the critical point that the delegation
is not to the states but rather to the designated ratifying
bodies. We do not believe that delegated federal power
may be inhibited by a state constitutional provision
which, in practical effect, determines whether votes of
legislators opposing an amendment shall be given greater,
lesser, or the same weight as the votes of legislators who
favor the proposal.
In the 77th General Assembly the Illinois Senate
took the position that, in the performance of its federal
function, it was not inhibited by article XIV, § 4 of the
Illinois Constitution and formally recorded its favorable
action on the proposed Equal Rights Amendment
notwithstanding the failure to obtain a three-fifths vote.
In the 78th General Assembly, however, the House as
well as the Senate took a different view. If our analysis
of [**46] the nature of the delegated power is correct,
the Illinois constitutional provision may only be
precatory in its effect on the federal process, and those
bodies are free to accept or to reject the three-fifths
requirement.
They did accept that requirement during the 78th
General Assembly. Whether they did so because of a
mistaken understanding of the applicable law
(notwithstanding the advice of the Attorney General of
the state that they were free to disregard the limitation),
or because of their decision to respect a policy choice
made by the framers of their own constitution in 1970, or
simply because they independently determined that the
supermajority requirement would be desirable, is of no
legal significance. It is clearly not our province to
inquire into the individual motives of the legislators who
voted in favor of the procedural rules adopted by each
branch of the General Assembly to govern its own
deliberations, including those relating to ratification of a
proposed amendment to the federal Constitution. 43
43
See Palmer v. Thompson, 403 U.S. 217,
224-225, 91 S. Ct. 1940, 29 L. Ed. 2d 438; United
States v. O'Brien, 391 U.S. 367, 382-384, 88 S.
CBA65
Page 17
390 F. Supp. 1291, *1308; 1975 U.S. Dist. LEXIS 13734, **46
Ct. 1673, 20 L. Ed. 2d 672; Fletcher v. Peck, 10
U.S. (6 Cranch) 87, 130, 3 L. Ed. 162.
[**47] In sum, we conclude that the action taken by
the 78th Session of the Illinois General Assembly did not
constitute [*1309] an effective ratification because the
resolution did not pass by the vote required by the
applicable rules of procedure adopted by both houses of
the legislature. This conclusion does not reflect
disagreement with the contention of the plaintiffs, or the
thrice-expressed opinion of the Attorney General of
Illinois, that article XIV, § 4 of the Illinois Constitution
of 1970 does not impose a valid restraint on the power of
any session of the Illinois General Assembly to determine
for itself the number of affirmative votes which will be
required to ratify a proposed amendment to the
Constitution of the United States.
Expedited Consideration of the Motion for Partial
Summary Judgment in the Netsch case. Finally, having
[**49] determined that plaintiffs are not entitled to
injunctive relief, we order that summary judgment be
entered for defendants in both cases. 46
44 28 U.S.C. § 2281 provides:
"An interlocutory or permanent
injunction
restraining
the
enforcement,
operation
or
execution of any State statute by
restraining the action of any officer
of such State in the enforcement or
execution of such statute or of an
order made by an administrative
board or commission acting under
State statutes, shall not be granted
by any district court or judge
thereof upon the ground of the
unconstitutionality of such statute
unless the application therefor is
heard and determined by a district
court of three judges under section
2284 of this title."
The motions which are pending and undecided
would not dispose of the entire litigation. It is apparent,
however, that the record is now complete and no useful
purpose would be served by further proceedings.
Moreover, we are satisfied that further briefing of the
legal issue would not modify the conclusion to which our
research has led us. It therefore seems appropriate to
enter final judgment disposing of the entire litigation.
The three-judge [**48] court was convened in each
of these cases because each complaint prayed for the
entry of an injunction commanding state officials to take
certain action predicated on the assumption that the
Illinois legislature has effectively ratified the Equal
Rights Amendment. 44 We have concluded that plaintiffs
are not entitled to such injunctive relief. The reasoning
which led us to that conclusion has required us to express
an opinion concerning the legal import, or lack thereof, of
article XIV, § 4 of the Illinois Constitution. Since the
ultimate decision of the controversy between the parties
is controlled by the legislature's procedural rules, and, in
final analysis, would be unaffected by the entry of a
declaratory judgment declaring article XIV, § 4 invalid,
such a judgment would be merely advisory in character
and therefore beyond our power to enter. 45 Accordingly,
we deny (1) the motion for summary declaratory
judgment on Count I of the Dyer Complaint; (2) the
Motion for Partial Summary Declaratory Judgment on
Count I of the Netsch Complaint; and (3) the Motion for
State constitutions have been held to be
"statutes" within the three-judge requirement of §
2281. American Federation of Labor v. Watson,
327 U.S. 582, 592-593, 66 S. Ct. 761, 90 L. Ed.
873.
45 Hayburn's Case, 2 U.S. (2 Dall.) 409, 1 L. Ed.
436.
46 It is well settled that a district court may enter
summary judgment for the nonmoving party even
in the absence of a crossmotion if it finds that
there are no material issues of fact and that the
nonmoving party is entitled to judgment as a
matter of law. 6 J. Moore, Federal Practice P
56.12, at 2242-2243 (1974); 10 C. Wright & A.
Miller, Federal Practice and Procedure: Civil §
2720, at 467-470 (1973).
[**50]
CBA66
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SHEPARD'S® - 390 F. Supp. 1291 - 33 Citing References
Copyright 2016 SHEPARD'S(R) - 33 Citing references
Dyer v. Blair, 390 F. Supp. 1291, 1975 U.S. Dist. LEXIS 13734 (N.D. Ill. 1975)
Restrictions: Unrestricted
FOCUS(TM) Terms: No FOCUS terms
Print Format: FULL
Citing Ref. Signal Legend:
{Warning} -- Negative treatment is indicated
{Warning} -- Negative case treatment is indicated for statute
{Questioned} -- Validity questioned by citing references
{Caution} -- Possible negative treatment
{Positive} -- Positive treatment is indicated
{Analysis} -- Citing Refs. With Analysis Available
{Cited} -- Citation information available
SHEPARD'S SUMMARY
Unrestricted Shepard's Summary
No negative case history.
Citing References:
Neutral Analyses:
Concurring Opinion (1), Dissenting Op. (2)
Other Sources:
Law Reviews (17)
LexisNexis Headnotes:
HN1 (1), HN2 (1)
CASE HISTORY ( 1 citing reference )
1.
Same case at:
Dyer v. Blair, 390 F. Supp. 1287, 1974 U.S. Dist. LEXIS 8437 (N.D. Ill. 1974)
CITING DECISIONS ( 15 citing decisions )
U.S. SUPREME COURT
2.
Cited in Dissenting Opinion at:
CBA67
Page 19
SHEPARD'S® - 390 F. Supp. 1291 - 33 Citing References
Raines v. Byrd, 521 U.S. 811, 117 S. Ct. 2312, 138 L. Ed. 2d 849, 1997 U.S. LEXIS 4040, 65 U.S.L.W.
4705, 11 Fla. L. Weekly Fed. S 182, 97 Cal. Daily Op. Service 4991, 97 D.A.R. 8177, 97-2 U.S. Tax Cas.
(CCH) P50500 (1997)
521 U.S. 811 p.838
117 S. Ct. 2312 p.2326
138 L. Ed. 2d 849 p.869
3.
Cited by:
Uhler v. American Federation of Labor-Congress of Industrial Organizations, 468 U.S. 1310, 105 S. Ct. 5,
82 L. Ed. 2d 896, 1984 U.S. LEXIS 2923, 53 U.S.L.W. 3166 (1984)
468 U.S. 1310 p.1312
105 S. Ct. 5 p.6
82 L. Ed. 2d 896 p.898, Headnote: F. Supp. - 4
4.
Cited by:
Goldwater v. Carter, 444 U.S. 996, 100 S. Ct. 533, 62 L. Ed. 2d 428, 1979 U.S. LEXIS 4144 (1979)
444 U.S. 996 p.1003
100 S. Ct. 533 p.537
62 L. Ed. 2d 428 p.431, Headnote: F. Supp. - 4
62 L. Ed. 2d 428 p.431, Headnote: F. Supp. - 9
1ST CIRCUIT - U.S. DISTRICT COURTS
5.
Cited by:
Beacon Products Corp. v. Reagan, 633 F. Supp. 1191, 1986 U.S. Dist. LEXIS 26223 (D. Mass. 1986)
633 F. Supp. 1191 p.1199
2ND CIRCUIT - U.S. DISTRICT COURTS
6.
Cited by:
United States v. Sitka, 666 F. Supp. 19, 1987 U.S. Dist. LEXIS 7297 (D. Conn. 1987)
666 F. Supp. 19 p.22
5TH CIRCUIT - COURT OF APPEALS
7.
Cited by:
Texas Asso. of Concerned Taxpayers, Inc. v. United States, 772 F.2d 163, 1985 U.S. App. LEXIS 23377, 56
A.F.T.R.2d (RIA) 5960, 85-2 U.S. Tax Cas. (CCH) P16441 (5th Cir. Tex. 1985)
772 F.2d 163 p.166
7TH CIRCUIT - U.S. DISTRICT COURTS
8.
Cited by:
CBA68
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SHEPARD'S® - 390 F. Supp. 1291 - 33 Citing References
Jones v. Union Pac. R.R., 2001 U.S. Dist. LEXIS 3775 (N.D. Ill. Mar. 26, 2001)
2001 U.S. Dist. LEXIS 3775
9.
Cited by:
O'Connell v. Norwegian Caribbean Lines, Inc., 639 F. Supp. 846, 1986 U.S. Dist. LEXIS 26712, 1988
A.M.C. 1865 (N.D. Ill. 1986)
639 F. Supp. 846 p.851
9TH CIRCUIT - U.S. DISTRICT COURTS
10.
Cited by:
Idaho v. Freeman, 529 F. Supp. 1107, 1981 U.S. Dist. LEXIS 16518, 27 Empl. Prac. Dec. (CCH) P32352
(D. Idaho 1981)
529 F. Supp. 1107 p.1123
529 F. Supp. 1107 p.1125
11TH CIRCUIT - U.S. DISTRICT COURTS
11.
Cited by:
Made in the USA Found. v. United States, 56 F. Supp. 2d 1226, 1999 U.S. Dist. LEXIS 11384, 21 Int'l Trade
Rep. (BNA) 1299, 161 L.R.R.M. (BNA) 2897 (N.D. Ala. 1999)
56 F. Supp. 2d 1226 p.1259
D.C. CIRCUIT - COURT OF APPEALS
12.
Cited in Dissenting Opinion at:
Skaggs v. Carle, 110 F.3d 831, 324 U.S. App. D.C. 87, 1997 U.S. App. LEXIS 8044, 79 A.F.T.R.2d (RIA)
2258 (1997)
110 F.3d 831 p.844
324 U.S. App. D.C. 87 p.100
13.
Cited by:
Barnes v. Kline, 759 F.2d 21, 245 U.S. App. D.C. 1, 1984 U.S. App. LEXIS 19116 (1984)
759 F.2d 21 p.29
CALIFORNIA SUPREME COURT
14.
Cited in Concurring Opinion at, Cited by:
Howard Jarvis Taxpayers Assn. v. Padilla, 62 Cal. 4th 486, 196 Cal. Rptr. 3d 732, 363 P.3d 628, 2016 Cal.
LEXIS 1 (2016)
LexisNexis Headnotes HN1, HN2
Cited in Concurring Opinion at:
62 Cal. 4th 486 p.554
196 Cal. Rptr. 3d 732 p.786
CBA69
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SHEPARD'S® - 390 F. Supp. 1291 - 33 Citing References
363 P.3d 628 p.673
Cited by:
62 Cal. 4th 486 p.505
196 Cal. Rptr. 3d 732 p.744
363 P.3d 628 p.638
15.
Cited by:
American Federation of Labor v. Eu, 36 Cal. 3d 687, 206 Cal. Rptr. 89, 686 P.2d 609, 1984 Cal. LEXIS 210
(1984)
36 Cal. 3d 687 p.698
206 Cal. Rptr. 89 p.96
686 P.2d 609 p.616
NEVADA SUPREME COURT
16.
Cited by:
Kimble v. Swackhamer, 94 Nev. 600, 584 P.2d 161, 1978 Nev. LEXIS 628 (1978)
584 P.2d 161 p.163
94 Nev. 600 p.603
LAW REVIEWS AND PERIODICALS ( 17 Citing References )
17.
NOTE: KEEP 'EM SEPARATED: ARTICLE I, ARTICLE V, AND CONGRESS'S LIMITED AND DEFINED
ROLE IN THE PROCESS OF AMENDING THE CONSTITUTION, 113 Colum. L. Rev. 1051 (2013)
113 Colum. L. Rev. 1051 p.1051
18.
52 N.Y.U. L. Rev. 36
52 N.Y.U. L. Rev. 36 p.113
19.
Article: ORIGINALISM AND THE RATIFICATION OF THE FOURTEENTH AMENDMENT, 107 Nw. U.L.
Rev. 1627 (2013)
107 Nw. U.L. Rev. 1627 p.1627
20.
SYMPOSIUM: STATE CONSTITUTIONALISM IN THE 21ST CENTURY: Teaching and Researching Comparative Subnational Constitutional Law, 115 Penn. St. L. Rev. 1109 (2011)
115 Penn. St. L. Rev. 1109 p.1109
21.
ARTICLE: THE POWER TO END WAR: THE EXTENT AND LIMITS OF CONGRESSIONAL POWER, 41
St. Mary's L. J. 445 (2010)
41 St. Mary's L. J. 445 p.445
22.
ARTICLE: RATIONAL LEGISLATING, 34 Stetson L. Rev. 547 (2005)
34 Stetson L. Rev. 547 p.547
CBA70
Page 22
SHEPARD'S® - 390 F. Supp. 1291 - 33 Citing References
23.
ARTICLE: REOPENING THE CONSTITUTIONAL ROAD TO REFORM: TOWARD A SAFEGUARDED
ARTICLE V CONVENTION, 78 Tenn. L. Rev. 765 (2011)
78 Tenn. L. Rev. 765 p.765
24.
ARTICLE: PROPOSING CONSTITUTIONAL AMENDMENTS BY CONVENTION: RULES GOVERNING
THE PROCESS, 78 Tenn. L. Rev. 693 (2011)
78 Tenn. L. Rev. 693 p.693
25.
RECENT DEVELOPMENT: Constitutional Law--Presidential Power--Suspension of Claims Against Foreign Countries: Dames & Moore v. Regan, 101 S. Ct. 2972 (1981), 49 Tenn. L. Rev. 407 (1982)
49 Tenn. L. Rev. 407 p.407
26.
58 Tex. L. Rev. 875
58 Tex. L. Rev. 875 p.894
27.
57 Tex. L. Rev. 919
57 Tex. L. Rev. 919 p.926
28.
35 Tulsa L.J. 353, 35 Tulsa L.J. 353
35 Tulsa L.J. 353 p.353
29.
ARTICLE: DAVID C. BAUM MEMORIAL LECTURE: NOTES ON A BICENTENNIAL CONSTITUTION:
PART I, PROCESSES OF CHANGE +, 1984 U. Ill. L. Rev. 933 (1984)
1984 U. Ill. L. Rev. 933 p.946
30.
ARTICLE: THE FUNCTION OF ARTICLE V, 162 U. Pa. L. Rev. 1165 (2014)
162 U. Pa. L. Rev. 1165 p.1165
31.
ARTICLE: IN DEFENSE OF THE POLITICAL QUESTION DOCTRINE., 137 U. Pa. L. Rev. 97 (1988)
137 U. Pa. L. Rev. 97 p.167
32.
ARTICLE: PRECOMMITMENT POLITICS, 82 Va. L. Rev. 567 (1996)
82 Va. L. Rev. 567 p.594
33.
ARTICLE: A General Theory of Article V: The Constitutional Lessons of the Twenty-seventh Amendment.,
103 Yale L.J. 677 (1993)
103 Yale L.J. 677 p.731
CBA71
Page 1
The STATE OF IDAHO, et al., Plaintiffs, and Claude L. Oliver, etc., et al.,
Plaintiffs-Intervenors, v. Rear Admiral Rowland G. FREEMAN, III, Administrator
of General Services Administration, Defendant, and National Organization for
Women, et al., Defendants-Intervenors
Civ. No. 79-1097
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
529 F. Supp. 1107; 1981 U.S. Dist. LEXIS 16518; 27 Empl. Prac. Dec. (CCH) P32,352
December 23, 1981
SUBSEQUENT HISTORY:
January 25, 1982.
[**1] Judgment Stayed
CASE SUMMARY:
PROCEDURAL POSTURE: Defendants, a women's
group and the General Services Administration (GSA),
filed a motion to dismiss and for summary judgment, and
plaintiffs, states and legislators, sought summary and
declaratory judgments stating that as a matter of federal
constitutional law, Idaho's act of rescinding its prior
ratification of the 27th Constitutional Amendment was
valid and effective and Congress's amendment extension
period violated U.S. Const. art. 5.
OVERVIEW: Congress passed a resolution proposing
the 27th Amendment to the Constitution for the Equal
Rights Amendment and required ratification by the states
within seven years. Six years later it passed an extension
resolution, extending the ratification time period. The
Idaho legislature, prior to full ratification of the
amendment, rescinded its prior ratification of the
amendment. The court granted plaintiffs' motions for
summary and declaratory judgment and held that
plaintiffs had standing to bring the action challenging the
GSA's decision not to certify Idaho's rescission. The court
also held that the matter was ripe and that it had
jurisdiction to decide the matter. The court ruled that,
consistent with U.S. Const. art. V, a rescission of a prior
ratification must be recognized if it occurred prior to
ratification by three-fourths of the states and that
Congress had no power to determine the validity of a
properly certified ratification or rescission. The court
declared that Idaho's rescission of the amendment
effectively nullified its prior ratification and that Idaho
could not be counted as a ratifying state. The court
further declared that Congress's extension amendment
was void.
OUTCOME: Defendants' motion to dismiss, or in the
alternative for summary judgment, was denied. Plaintiffs'
motions for summary and declaratory judgments were
granted, but the court denied their request for an
injunction. The court declared that a state has the power
to rescind a prior ratification of a proposed constitutional
amendment at any time prior to ratification by the states
and that Idaho's rescission of the amendment was proper
and effective.
COUNSEL: David H. Leroy, Atty. Gen., Larry K.
Harvey, Chief Deputy Atty. Gen., State of Idaho, Boise,
Idaho, Robert Corbin, Arizona Atty. Gen., Phoenix,
Ariz., Max Miller, Mountain States Legal Foundation,
Denver, Colo., David Wm. West, West & Bliss, Phoenix,
Ariz., John Runft and Terry Coffin, Runft & Longeteig,
CBA72
Page 2
529 F. Supp. 1107, *; 1981 U.S. Dist. LEXIS 16518, **1;
27 Empl. Prac. Dec. (CCH) P32,352
Boise, Idaho, for plaintiffs.
Dennis G. Linder, Elisa V. Vela, Thomas Millet, R.
Lawrence Dessem, Betsy Grey, Civ. Div., Dept. of
Justice, Washington, D. C., Guy G. Hurlbutt, U. S. Atty.,
Deborah A. Bail, Asst. U. S. Atty., Boise, Idaho, for
defendant.
Michael Farris, Eberle, Farris & Nelson, P. A., Spokane,
Wash., for plaintiffs-intervenors.
Michael E. Donnelly, Susan Powell Mauk, Boise, Idaho,
Thomas J. Hart and S. G. Lippman, Washington, D. C.,
Lucia
Fakonas,
Phoenix,
Ariz.,
for
defendants-intervenors.
See 102 S. Ct. 1272.
MEMORANDUM DECISION
OPINION BY: CALLISTER
OPINION
[*1111] I. INTRODUCTION
This matter comes before the Court on defendant's
motion to dismiss and the parties' cross-motions for
summary judgment. In an extensive stipulation filed with
the Court, all the material facts in this case have been
agreed to by the parties. [**2] This proceeding calls into
question the validity of Idaho's act of rescinding its prior
ratification of the proposed "Equal Rights Amendment"
to the Constitution of the United States, and the
constitutionality of Congress' act in extending the time
period in which ratifications may be received. The
plaintiffs bringing this suit consist of the State of Idaho,
the leadership of the Idaho State Legislature, and
individual legislators of that body; the State of Arizona,
legislative leadership of both houses and individual
legislators from the Arizona legislature. These plaintiffs
are joined by the plaintiff-intervenors, legislators from
the State of Washington. They seek from this Court a
declaration that, as a matter of federal constitutional law,
Idaho's act of rescinding its prior ratification is valid and
effective; that Congress' extension of the seven-year time
limitation in which to present ratifications is
unconstitutional in that it violates the grant of power
given Congress under article V of the Constitution, and
that the running of the seven-year time limitation tolls
and terminates any ratifications enacted by the states to
that point. Furthermore, the plaintiffs seek a mandatory
[**3]
injunction directing the defendant, the
Administrator of General Services Administration, Rear
Admiral Rowland G. Freeman III, to remove the name of
the State of Idaho from all official records which would
indicate that Idaho has adopted the proposed
twenty-seventh amendment and return its prior
ratification documents. Finally, the plaintiffs petition for
an order enjoining the Administrator of General Services
Administration from taking further account of any
purported ratifications after the expiration of the original
ratification period.
On May 13 and 14, 1981, oral argument was
presented by the defendant, represented by the
Department of Justice, and defendant-intervenors, the
National Organization for Women, on their motions to
dismiss or in the alternative for summary judgment;
plaintiffs and plaintiff-intervenors' cross-motion for
summary judgment was also considered at that time.
These motions present the Court with essentially
questions of first impression necessitating consideration
of the premises of one of the pivotal provisions of the
United States Constitution, the article V amending clause.
In addition, the Court is confronted with the perennially
perplexing problem [**4] of the legitimate relationship
of the courts with the coordinate branches, particularly
the Congress, in determining whether the questions
presented here are proper for judicial resolution. After
careful consideration of the difficult issues presented, it
appears that the weight of constitutional precedent
dictates that the defendant and defendant-intervenors'
motion to dismiss or in the alternative for summary
judgment should be dismissed and plaintiffs' motion for
summary judgment should be granted in accordance with
the principles discussed below.
II. BACKGROUND
In March of 1972 Congress passed a resolution
proposing the "Equal Rights Amendment, [*1112] " as
the twenty-seventh amendment to the Constitution of the
United States, and submitted it for ratification to the
legislatures of the states:
JOINT RESOLUTION
Proposing an amendment to the
Constitution of the United States relative
to equal rights for men and women.
CBA73
Page 3
529 F. Supp. 1107, *1112; 1981 U.S. Dist. LEXIS 16518, **4;
27 Empl. Prac. Dec. (CCH) P32,352
Resolved by the Senate and House of
Representatives of the United States of
America
in
Congress
assembled
(two-thirds of each House concurring
therein), That the following article is
proposed as an amendment to the
Constitution of the United States, [**5]
which shall be valid to all intents and
purposes as part of the Constitution when
ratified by the legislatures of three-fourths
of the several States within seven years
from the date of its submission by the
Congress:
"ARTICLE"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.
"SEC. 2. The Congress shall have the
power to enforce, by appropriate
legislation, the provisions of this article.
"SEC. 3. This amendment shall take
effect two years after the date of
ratification.
H.J.Res. 208, 86 Stat. 1523 (1972). From the advent of
the amendment and until 1978, 35 of the requisite 38
state legislatures took action ratifying the amendment and
sent official certifications of their actions to the General
Services Administrator pursuant to 1 U.S.C. § 106b. 1
But, in that same time period five states, Nebraska,
Tennessee, Idaho, Kentucky, and South Dakota, while
initially assenting to ratification, passed resolutions of
rescission withdrawing their prior consent. 2 The original
seven-year ratification restriction set in the resolution
proposing the "Equal Rights Amendment" would [**6]
have expired on March 22, 1979, had not Congress taken
action to extend the time period.
1 § 106b. Amendments to Constitution
Whenever official notice is received at the
General Services Administration that any
amendment proposed to the Constitution of the
United States has been adopted, according to the
provisions of the Constitution, the Administrator
of General Services shall forthwith cause the
amendment to be published, with his certificate,
specifying the States by which the same may have
been adopted, and that the same has become valid,
to all intents and purposes, as a part of the
Constitution of the United States. Added Oct. 31,
1951, c. 655, § 2(b), 65 Stat. 710.
2
Nebraska ratified the Equal Rights
Amendment on March 29, 1972, and rescinded it
on March 15, 1973; Tennessee ratified on April 4,
1972, and rescinded April 23, 1974; Idaho ratified
on March 24, 1972, and rescinded February 9,
1977; Kentucky ratified on June 26, 1972, and
rescinded on March 17, 1978, but the rescission
resolution was subsequently vetoed by the state
lieutenant governor while the governor was absent
from the state.
[**7] On October 6, 1978, an extension resolution,
House Joint Resolution 638, was presented to Congress
for consideration. It read:
Joint Resolution
Extending the deadline for the ratification of the
Equal Rights Amendment.
Resolved by the Senate and House of
Representatives of the United States of
America in Congress assembled, That
notwithstanding any provision of House
Joint Resolution 208 of the Ninety-second
Congress, second session, to the contrary,
the article of amendment proposed to the
States in such joint resolution shall be
valid to all intents and purposes as part of
the Constitution when ratified by the
legislatures of three-fourths of the several
States not later than June 30, 1982.
While a majority of both Houses favored the extension
resolution, proponents of the measure could not generate
a two-thirds concurrence as had been the case when the
original time period had been enacted. Therefore, the
House acting by a vote of 253 to 189 and the Senate
acting by a vote [*1113] of 60 to 36 3 enacted the
extension resolution by a simple majority. The resolution
was later signed by the President.
CBA74
Page 4
529 F. Supp. 1107, *1113; 1981 U.S. Dist. LEXIS 16518, **7;
27 Empl. Prac. Dec. (CCH) P32,352
3 H.R.J.Res. 638 passed the House August 15,
1978, 124 Cong.Rec. H8,664-65 (daily ed. Aug.
15, 1978). It passed the Senate October 6, 1978,
124 Cong.Rec. S17,318-19 (daily ed. Oct. 6,
1978).
[**8] The State of Idaho, which requires a
super-majority, two-thirds, of the legislature to act in
adopting an amendment, took action the first year the
Equal Rights Amendment was proposed. The Idaho
House of Representatives adopted Senate Joint
Resolution No. 133 on March 24, 1972, by a vote of 31 to
4 and later that day the Senate passed it by a vote of 39 to
5. A certificate of ratification was duly issued by the
Idaho Secretary of State and dispatched on March 29,
1972.
intents and purposes as part of the
Constitution when ratified by the
legislatures of three-fourths of the several
States within seven years from the date of
its submission by the Congress:
"ARTICLE" "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.
A JOINT RESOLUTION RATIFYING THE
PROPOSED AMENDMENT TO THE CONSTITUTION
OF THE UNITED STATES RELATIVE TO EQUAL
RIGHTS FOR MEN AND WOMEN.
"SECTION 3. This amendment shall
take effect two years after the date of
ratification.' "
Be It Resolved by the Legislature of the
State of Idaho:
NOW, THEREFORE, BE IT
RESOLVED by the Forty-first Idaho
Legislature that the proposed amendment
to the Constitution of the United States of
America be, and the same is hereby
ratified by the Forty-first Idaho
Legislature.
WHEREAS, the Ninety-second
Congress of the United States of America,
at its second session, in both houses, by a
constitutional majority of two-thirds
thereof, has made the following
proposition to amend the Constitution of
the United States of America in the
following words, to-wit:
Adopted by the Senate March 24, 1972.
Adopted by the House March 24, 1972.
4
"JOINT RESOLUTION
"Proposing an amendment to the
Constitution of the United States relative
to equal rights for men and women.
[**10]
4 See Exhibit E to plaintiffs' complaint.
"RESOLVED BY THE SENATE AND
HOUSE OF REPRESENTATIVES OF
THE UNITED STATES OF AMERICA
IN [**9] CONGRESS ASSEMBLED
(TWO-THIRDS OF EACH HOUSE
CONCURRING THEREIN), That the
following article is proposed as an
amendment to the Constitution of the
United States, which shall be valid to all
In February of 1977 the state legislature of Idaho
took action to rescind its prior ratification of the proposed
Equal Rights Amendment. On February 4, 1977, House
Concurrent Resolution 10 5 was introduced [*1114] and
passed by the House by a vote of 44 to 26. On February
8, 1977, the Senate passed HCR 10 by a vote of 18 to 17.
Thus, by a simple majority Idaho declared its prior
ratification "rescinded, voided, repealed, withdrawn,
recalled and disaffirmed ...." 6 The Secretary of the State
of Idaho certified Idaho's rescission to the Acting
Administrator of the General Services Administration.
CBA75
Page 5
529 F. Supp. 1107, *1114; 1981 U.S. Dist. LEXIS 16518, **10;
27 Empl. Prac. Dec. (CCH) P32,352
The certification was duly received and noted but
questioned as to its validity. The State of Idaho and
legislators then brought this action to declare its validity
and compel the proper entry of Idaho's action of
rescission, including the return of the prior certificate of
ratification. IN THE HOUSE OF REPRESENTATIVES
provisions of this article.
"SECTION 3. This amendment shall take
effect two years after the date of ratification,' "
and
WHEREAS, the Forty-first Legislature of the
State of Idaho approved Senate Joint Resolution
No. 133, relating to the ratification of said
congressional
resolution
and
proposed
amendment.
5 HOUSE CONCURRENT RESOLUTION NO.
10
BY STATE AFFAIRS COMMITTEE
A
CONCURRENT
RESOLUTION
REPEALING
RATIFICATION
OF
A
PROPOSED
AMENDMENT
TO
THE
CONSTITUTION OF THE UNITED STATES
OF AMERICA.
NOW, THEREFORE, BE IT RESOLVED by
the First Regular Session of the Forty-fourth
Idaho Legislature, the House of Representatives
and the Senate concurring therein;
1. That Senate Joint Resolution No. 133 of
the Second Regular Session of the Forty-first
Idaho Legislature, in support of the aforesaid
proposed amendment to the Constitution of the
United States of America, and the action of the
Idaho State Legislature ratifying said amendment,
be rescinded, voided, repealed, withdrawn,
recalled, and disaffirmed.
Be It Resolved by the Legislature of the State
of Idaho:
WHEREAS, the Ninety-second Congress of
the United States of America, at its second
session, in both houses, by a constitutional
majority of two-thirds thereof, adopted the
following proposition to amend the Constitution
of the United States of America, in the following
words, to-wit:
2. That copies of this Resolution, duly
certified by the Secretary of State, with the Great
Seal of the State of Idaho attached thereto, be
forwarded by the Secretary of State to the
Administrator of General Services, Washington,
D.C., and to the President of the Senate and the
Speaker of the House of Representatives of the
Congress of the United States of America.
JOINT RESOLUTION
"RESOLVED BY THE SENATE AND
HOUSE OF REPRESENTATIVES OF THE
UNITED STATES OF AMERICA IN
CONGRESS ASSEMBLED (TWO-THIRDS OF
EACH HOUSE CONCURRING THEREIN), that
the following article is proposed as an amendment
to the Constitution of the United States, which
shall be valid to all intents and purposes as part of
the Constitution when ratified by the legislatures
of three-fourths of the several States within seven
years from the date of its submission by the
Congress:
ARTICLE" "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
[**11]
6
Id.
Unlike Idaho, the State of Arizona has not taken
official action purporting to ratify or adopt the proposed
twenty-seventh amendment; but rather has consistently
acted to reject the proposed amendment in every
legislative session from 1973 until 1978. With the
passage by the Ninety-fifth Congress of House Joint
Resolution 638 purporting to extend the time period in
which to consider the amendment, the Arizona State
Legislature approved a House Concurrent Resolution
2014 which called for the instigation of this suit. 7
7
See Exhibit B to plaintiffs' complaint.
The State of Washington, by its legislature, ratified
CBA76
Page 6
529 F. Supp. 1107, *1114; 1981 U.S. Dist. LEXIS 16518, **11;
27 Empl. Prac. Dec. (CCH) P32,352
the proposed Equal Rights Amendment on March 22,
1973, and the certification of that act was forwarded to
the Administrator of General Services. Washington has
not taken any subsequent actions which are inconsistent
with that initial determination of ratification. Four
individual legislators brought [**12] suit in the Western
District of Washington on the first day of the extended
ratification period seeking the nullification of Congress'
act extending the period and a return of Washington's
certificate of ratification. 8 The focal point of that action
was the claim that Washington's ratification was
conditioned on a full ratification by three-fourths of the
States within the seven-year time period. The legislators
argued that because the ratification period had lapsed
without three-fourths of the states ratifying, Washington's
ratification was now null and void, and Congress' action
in extending the time period did not extend Washington's
ratification. On June 13, 1979, the four legislators filed a
notice of voluntary dismissal in the Washington suit and
moved to intervene in this case to pursue the same issues.
Their motion was granted June 13, 1979.
subsidiary issue to this inquiry is that if a rescission is a
proper exercise of the state's authority, is Idaho's
resolution of rescission procedurally flawed. Second, is it
a proper exercise of congressional authority under article
V to alter a previously proposed time limitation for
ratification; if so, must Congress act by two-thirds
majority or would a simple majority suffice. Third,
assuming the propriety of the congressional extension of
the ratification period, how does the extension affect a
state which has supposedly enacted its ratification
conditioned upon the original time limitation placed on
the amendment. Finally, a question is raised with regard
to the propriety of the mandatory injunctive relief
requested by the plaintiff.
9
ARTICLE V.
The Congress, whenever two thirds of both
Houses shall deem it necessary, shall propose
Amendments to this Constitution, or, on the
Application of the Legislatures of two thirds of
the several States, shall call a Convention for
proposing Amendments, which, in either Case,
shall be valid to all Intents and Purposes, as Part
of this Constitution, when ratified by the
Legislatures of three fourths of the several States,
or by Conventions in three fourths thereof, as the
one or the other Mode of Ratification may be
proposed by the Congress; Provided that no
Amendment which may be made prior to the Year
One thousand eight hundred and eight shall in any
Manner affect the first and fourth Clauses in the
Ninth Section of the first Article; and that no
State, without its Consent, shall be deprived of its
equal Suffrage in the Senate.
8 Claude L. Oliver et al v. Dixy Lee Ray et al,
Civil No. C79-140T (W.D.Wash.1979).
[*1115] III. THE ISSUES
As indicated earlier the issues presented [**13] in
this litigation are ones of first impression. A number of
prominent Supreme Court cases have dealt with
interpretations of the amendment clause, article V of the
federal Constitution, 9 but none have made direct holding
on any of the questions considered here. While the areas
that the Court is asked to address deal ostensibly with an
interpretation of the fundamental nature of the process of
amending the Constitution, 10 at the threshold, however,
are questions of justiciability that would preclude
consideration of any of the substantive issues if they are
found applicable. First, the Court must consider if the
proper parties are before the Court and whether the issues
raised are "ripe" for adjudication. If these hurdles are
overcome, the Court must then consider whether the
questions proffered are not properly "political questions"
and thus better left to the legislative or executive branch.
Only if these preliminary questions are found not to bar
this Court's jurisdiction is it proper for the Court to
address what have been denoted the merits of the case,
which are: first, whether or not a rescission of a prior
ratification is a proper exercise of the state's power under
article [**14] V to act on a proposed amendment. A
The full text of article V is as follows:
[**15]
10 A proper framing and understanding of the
issues presented in this case cannot be taken
lightly. In order to properly evaluate the issues
presented here, it must be remembered that
substantive aspects of the Equal Rights
Amendment are not now at issue. The Court will
follow the injunction of the Supreme Court in
McCulloch v. Maryland, 17 U.S. 316, 4 Wheat
316, 4 L. Ed. 579 (1819), "In considering th(ese)
question(s), then, we must never forget that it is a
constitution we are expounding." (emphasis in
original).
CBA77
Page 7
529 F. Supp. 1107, *1115; 1981 U.S. Dist. LEXIS 16518, **15;
27 Empl. Prac. Dec. (CCH) P32,352
IV. JUSTICIABILITY
The starting point for any discussion of justiciability
is article III of the Constitution which limits the scope of
judicial power to "cases" and "controversies." U.S.Const.
Art. III, § 2. These words are inherently ambiguous and
accordingly their meaning has been dependent upon
judicial interpretation. The Supreme Court in a series of
noted cases has interpreted the article III limitation as a
restriction of its jurisdiction to those "questions presented
in an adversary context ... in a form historically viewed as
capable of resolution through the judicial [**16]
process." Flast v. Cohen, 392 U.S. 83, 95, 88 S. Ct. 1942,
1950, 20 L. Ed. 2d 947 (1968). 11 The Court has
articulated [*1116] certain minimum prerequisites to
adjudication-parties with standing and issues that are ripe
and not moot, hypothetical, or political-that are necessary
and sufficient conditions for securing what may be called
the substantive judgment of the Court. Each of the
justiciability standards has grown and evolved under
scrutiny of a number of significant cases giving the courts
an understanding of what type of questions and cases are
meant to be resolved by the judicial branch.
11 What Justice Powell has said about standing
is true of justiciability in general:
(the) inquiry involves both constitutional
limitations on federal-court jurisdiction and
prudential limitations on its exercise .... In both
dimensions it is founded in concern about the
proper-and properly limited-role of the courts in a
democratic society. See Schlesinger v. Reservists
to Stop the War, 418 U.S. 208, 221-227, 94 S. Ct.
2925, 2932-35, 41 L. Ed. 2d 706 (1974); United
States v. Richardson, 418 U.S. 166, 188-197, 94
S. Ct. 2940, 2952-56, 41 L. Ed. 2d 678 (1974)
(Powell, J., concurring).
Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct.
2197, 2205, 45 L. Ed. 2d 343 (1975).
[**17]
The concepts of ripeness, standing and political
question are all separate aspects of justiciability, the
absence of ripeness or standing or the presence of a
political question precludes a court from further
consideration of the case. See Buckley v. Valeo, 424 U.S.
1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) (ripeness);
Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d
663 (1962) (political question); Gladstone, Realtors v.
Bellwood, 441 U.S. 91, 99 S. Ct. 1601, 60 L. Ed. 2d 66
(1979) (standing). At the present time there does not
appear to be any firm, fixed rule as to the order of
applying these elements of justiciability, Schlesinger v.
Reservists to Stop the War, 418 U.S. 208, 215, 94 S. Ct.
2925, 2929, 41 L. Ed. 2d 706; however, there is some
authority that where these questions are before the court
and none have been resolved definitively in a context
readily applicable to the case presented, the court should
determine the questions of standing and ripeness first.
American Jewish Congress v. Vance, 188 U.S. App. D.C.
58, 575 F.2d 939 (D.C.Cir.1978). The reason for this
procedure appears to be that an analysis of the standing
and ripeness questions require only an inquiry [**18]
into the limitations placed on the federal judicial power
by article III. The political question issue, on the other
hand, goes beyond a determination of article III
limitations and requires an inquiry into other articles of
the Constitution as well as consideration of basic notions
of separation of powers. Id. at 943. As between standing
and ripeness, no clear preference appears to exist as to
which should be considered first. Since standing focuses
on the parties and the nature of their injuries, and ripeness
considers whether those alleged injuries have matured
sufficiently or are properly defined so as to permit
judicial resolution, it appears logical to approach standing
first.
A. Standing
Among the areas of justiciability, the standing
doctrine has proven to be one of the most intricate,
troublesome, and confusing aspects of modern
constitutional law. The Supreme Court has at times
indicated that "(s)tanding has been called one of the most
amorphous (concepts) in the entire domain of public
law," Flast v. Cohen, 392 U.S. 83, 99, 88 S. Ct. 1942,
1952, 20 L. Ed. 2d 947 (1968), and that "(g)eneralizations
about standing to sue are largely worthless as such." Data
Processing Serv. [**19] v. Camp, 397 U.S. 150, 151, 90
S. Ct. 827, 829, 25 L. Ed. 2d 184 (1970). The lack of
clear articulation is not surprising in that it has been noted
that the concept of standing reflects the court's
consideration of the judiciary's proper role under our
Constitution and in our democratic society. 12 This does
not mean, however, that the courts are left without
direction.
12
Id.
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27 Empl. Prac. Dec. (CCH) P32,352
Beginning with the "cases" or "controversy"
limitation found in article III, the Supreme Court has
indicated that the standing is directed to one narrow
question.
The fundamental aspect of standing is
that it focuses on the party seeking to get
his complaint before a federal court and
not on the issues he wishes to have
adjudicated. The "gist of this question of
standing" is whether the party seeking
relief has "alleged such a personal stake in
the outcome of the controversy as to
assure that concrete adverseness which
sharpens the presentation of issues upon
[*1117] which the court so largely
depends for illumination of [**20]
difficult constitutional questions." Baker
v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691
(703), 7 L. Ed. 2d 663 (1962). In other
words, when standing is placed in issue in
a case, the question is whether the person
whose standing is challenged is a proper
party to request an adjudication of a
particular issue and not whether the issue
itself is justiciable.
Flast v. Cohen, supra 392 U.S. at 99, 88 S. Ct. at
1952 (emphasis added).
The emphasis, therefore, is directed to the litigant
and whether he is in a position to have the courts decide
the merits of the dispute or resolve the particular issues
presented by his complaint. In order to make this inquiry,
the Supreme Court has indicated that "both constitutional
limitations on federal-court jurisdiction and prudential
limitations on its exercise ...." Warth v. Seldin, 422 U.S.
490, 498, 95 S. Ct. 2197, 2205, 45 L. Ed. 2d 343 (1975)
must be considered.
The constitutional limitations referred to by the court
have been outlined as requiring a showing by the plaintiff
that he personally has suffered some actual or threatened
injury-injury in fact-, Id. at 501, 95 S. Ct. at 2206, to an
interest "arguably within the zone of interests [**21] to
be protected or regulated by the statute or constitutional
guarantee in question." Data Processing Serv. v. Camp,
supra, 397 U.S. at 152-53, 829-30. Furthermore, the
injury must flow from the putatively illegal conduct of
the defendant, i.e., there must be a fairly traceable causal
connection between the claimed injury and the
challenged conduct. Arlington Heights v. Metro.
Housing Corp., 429 U.S. 252, 261, 97 S. Ct. 555, 561, 50
L. Ed. 2d 450 (1977); Simon v. Eastern Ky. Welfare
Rights Org., 426 U.S. 26, 41-42, 96 S. Ct. 1917, 1925-26,
48 L. Ed. 2d 450 (1976). Finally, the plaintiff must
establish that a substantial likelihood that the judicial
relief requested will prevent or redress the claimed injury.
Gladstone, Realtors v. Bellwood, 441 U.S. 91, 100, 99 S.
Ct. 1601, 1608, 60 L. Ed. 2d 66 (1979). With regard to
these latter two formulations, the court in Duke Power
Co. v. Carolina Env. Study Gp., 438 U.S. 59, 98 S. Ct.
2620, 57 L. Ed. 2d 595 (1978), stated these criteria in the
alternative indicating that the causation requirement is
satisfied if the plaintiff establishes that the injury was the
consequence of the defendants' actions or that exercise of
the court's remedial [**22] powers would redress the
injury. Id. at 74, 98 S. Ct. at 2630-31. See Riegle v.
Federal Open Market Committee, 211 U.S. App. D.C.
284, 656 F.2d 873, 878 (D.C.Cir., 1981).
The Supreme Court points out that even if these
constitutional limitations are met a plaintiff may still lack
standing under "the prudential principles by which the
judiciary seeks to avoid deciding questions of broad
social import where no individual rights would be
vindicated and to limit access to the federal courts to
those litigants best suited to assert a particular claim."
Gladstone, Realtors v. Bellwood, supra, 441 U.S. at
99-100, 99 S. Ct. at 1608 (1979). That is, the Court
essentially looks to see if the litigant is asserting an injury
which is peculiar to himself or to a distinct group of
which he is a part, rather than one shared in "substantially
equal measure by all or a large class of citizens." Id.
Therefore, this Court's inquiry into the question of
standing as it arises in this case must proceed along the
lines of whether or not the constitutional and prudential
limitations permit judicial determination of the merits,
i.e., have the individual plaintiffs established that they (1)
have suffered [**23] some actual or threatened injury 13
which is peculiar [*1118] to themselves, (2) to an
interest protected by the relevant law, (3) where the
injury is caused by defendant's action or capable of
judicial redress. See, Riegle v. Federal Open Market
Committee, supra.
13
The Ninth Circuit has recently considered
what would suffice to establish a threat of injury
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27 Empl. Prac. Dec. (CCH) P32,352
to grant a plaintiff standing. In Seattle School
Dist. No. 1 v. State of Wash., 633 F.2d 1338 (9th
Cir. 1980), the defendant moved to dismiss as to
one of the plaintiff school districts because the
state had not threatened that particular district
with enforcement of the statute that was being
challenged in the suit. The circuit court ruled that
it is not always necessary that there be a direct
threat of injury "if the circumstances of the
dispute provide sufficient guarantees that a
genuine case or controversy exists ...." Id. at 1342
n.1. Accepting this formulation of the standing
question, the case brought before the Court by
these plaintiffs is clearly sufficient to meet the
case or controversy requirements and thus
standing would be appropriate for these plaintiffs.
[**24]
One additional point should be noted before
beginning analysis of the question of standing. Since the
focal point of the standing issue is whether or not the
plaintiffs are the proper parties to raise the particular
questions and not the validity of the merits, and because
it is clear that when ruling on a motion to dismiss for
want of standing, "both the trial and reviewing courts
must accept as true all material allegations of the
complaint, and must construe the complaint in favor of
the complaining party," Warth v. Seldin, 422 U.S. 490,
501, 95 S. Ct. 2197, 2206, 45 L. Ed. 2d 343 (1975).
In a review of the complaint and its prayer for
declaratory and injunctive relief, it is evident that the
Court must assume the following: (1) the defendant
wrongfully refused to accept Idaho's certification of
rescission, and failed to properly report that Idaho was no
longer within the group professing to have ratified; (2)
the ratifications submitted by Idaho and Washington
expressly limited their consent to adoption for a period of
seven years and thus became null and void on March 22,
1979; (3) Congress' act in passing the extension
resolution was unconstitutional and void; and (4) the
defendant [**25] wrongfully maintains that he can
continue to hold as binding all ratifications heretofore
received and continue to accept any subsequent
ratifications. In light of these assumptions the Court will
consider the plaintiffs' claim of standing. Compare Riegle
v. Federal Open Market Committee, supra, at 877.
Each of the plaintiffs in this suit has presented the
Court with an impressive array of facts and legal theories
which support their claim of standing. From a review of
the record there appears to be one group of plaintiffs, the
individual legislators from the State of Idaho, who, if
found to have standing, are in a position to present all of
the pertinent issues in this case. If these plaintiffs are
found to be proper parties, the Court will not need to
consider claims of standing by the other plaintiffs in
order to resolve the issues presented or grant the relief
requested. The basis for the Idaho legislators' claim of
standing in this suit is that as participants in the
ratification process, their individual votes, in favor of
ratification for the seven-year time period 14 or for the
rescission of the prior ratification 15 have been debased
by the actions of the defendant and [**26] a suit of this
nature is proper to vindicate their vote. In assessing this
basis for standing, it should be noted that while recently
state and national legislators have turned to the courts to
pursue their causes, 16 there are no special standards for
determining their standing vis-a-vis a private litigant,
Harrington v. Bush, 180 U.S. App. D.C. 45, 553 F.2d 190
(D.C.Cir.1977). Thus the legislator must meet the same
three-prong test articulated above as any other litigant
would.
14
Seven of the individual plaintiffs in this
action, as members of the Idaho legislature voted
in favor of the proposed amendment, viz Reed W.
Budge, Walter H. Yarbrough, Ernest A. Hale,
Melvin F. Hammond, Jack C. Kennevick, Walter
F. Little, W. Israel Merrill.
15 Seventeen of the individual plaintiffs in this
action, as members of the Idaho legislature, voted
in favor of the rescission resolution, viz Rusty M.
Barlow, Noy E. Brackett, Ernest A. Hale, Melvin
F. Hammond, Gordon R. Hollifield, Ray E.
Infanger, Gary J. Ingram, Jack E. Kennevick,
Walter E. Little, Ralph Olmstead, Tom W.
Stivers, Wayne E. Tibbitts, Reed W. Budge, W.
Israel Merrill, James E. Risch, J. Wilson Steen,
and Walter H. Yarbrough.
[**27]
16
See, e.g., McClure v. Carter, 513 F. Supp.
265 (1981).
The injury to a protected interest that the legislators
assert as a basis for their standing in this case stems from
an impairment of a vote cast in favor of the proposed
constitutional amendment, or in favor of the resolution
rescinding the prior ratification. The right to vindicate a
properly cast vote has been verified in a number of cases;
CBA80
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27 Empl. Prac. Dec. (CCH) P32,352
[*1119] two of particular importance in this case are
Coleman v. Miller, 307 U.S. 433, 59 S. Ct. 972, 83 L. Ed.
1385 (1939) and Kennedy v. Sampson, 167 U.S. App.
D.C. 192, 511 F.2d 430 (D.C.Cir.1974). Coleman v.
Miller, supra, is important in this instance for two
reasons: first, Coleman dealt with a challenge to the
ratification of a proposed amendment under Article V.
Second, Coleman is one of the origins of the concept of
standing based on an action to vindicate a vote which has
been in some way impaired. The Coleman case dealt with
Kansas' attempt to ratify a proposed amendment to the
federal Constitution known as the Child Labor
Amendment. The Child Labor Amendment was first
proposed [**28] in June of 1924. 17 While several states
ratified the amendment, the Kansas legislature in 1925
adopted a resolution rejecting the proposed amendment.
Fourteen years later Kansas again considered the
amendment. The Senate vote on the ratification resolution
resulted in a 20-20 tie among the 40 senators. The
lieutenant governor then stepped in as the presiding
officer of the Senate and cast his vote in favor of the
resolution. The resolution was later adopted by the House
of Representatives. Suit was brought by 24 members of
the legislature, including the 20 senators who had voted
against the resolution in the Senate, to restrain the
certification of ratification. A suit was brought
challenging the right of the lieutenant governor to cast the
deciding vote in the Senate arguing that he was not part
of the "legislature" as specified in article V of the
Constitution. The plaintiffs also challenged the proposed
ratification on the grounds that the prior rejection by
Kansas barred any subsequent reconsideration, and since
Kansas had failed to ratify within a reasonable time the
amendment had lost its vitality. The plaintiffs' suit was
challenged on the ground that the petitioners did not
[**29] have standing to raise these questions. The
Kansas Supreme Court found that the plaintiffs had
standing but ruled against the plaintiffs on the substantive
issues. On appeal to the Supreme Court of the United
States, the court held that
17 See Coleman v. Miller, 307 U.S. 433, 473,
59 S. Ct. 972, 991, 83 L. Ed. 1385 (1939),
"Chronology of Child Labor Amendment."
the cases cited in support of the
contention, that petitioners lack an
adequate interest to invoke our jurisdiction
to review, to be inapplicable. Here, the
plaintiffs include twenty senators, whose
votes against ratification have been
overriden and virtually held for naught
although if they are right in their
contentions their votes would have been
sufficient to defeat ratification. We think
that these senators have a plain, direct and
adequate interest in maintaining the
effectiveness of their votes. Petitioners
come directly within the provisions of the
statute
governing
our
appellate
jurisdiction. They have set up and claimed
a right and privilege [**30] under the
Constitution of the United States to have
their votes given effect ....
Id. at 438, 59 S. Ct. at 975.
The court based this holding on a review of a series
of cases arising under challenges to proposed
amendments particularly Hawke v. Smith, No. 1, 253
U.S. 221, 40 S. Ct. 495, 64 L. Ed. 871 (1920), and Leser
v. Garnett, 258 U.S. 130, 42 S. Ct. 217, 66 L. Ed. 505
(1922). The Court pointed out that standing was granted
to the plaintiff in Hawke v. Smith, No. 1, supra, who was
suing as a "citizen and elector of the State of Ohio," and
in Leser v. Garnett, supra, to "qualified voters" in the
State of Maryland. Of these decisions the court wrote:
The interest of the plaintiffs in Leser v.
Garnett as merely qualified voters at
general elections is certainly much less
impressive than the interest of the twenty
senators in the instant case. This is not a
mere intra-parliamentary controversy but
the question relates to legislative action
deriving its force solely from the
provisions of the Federal Constitution and
the twenty senators were not only
qualified to vote on the question of
ratification but their votes, if the
Lieutenant Governor were excluded as not
being a [**31] [*1120] part of the
legislature for that purpose, would have
been decisive in defeating the ratifying
resolution.
We are of the opinion that Hawke v.
Smith and Leser v. Garnett are controlling
authorities ....
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27 Empl. Prac. Dec. (CCH) P32,352
Coleman v. Miller, supra 307 U.S. at 441, 59 S. Ct.
at 976.
The Coleman precedent was followed and elucidated
somewhat by the court in Kennedy v. Sampson, supra. In
that case Senator Edward Kennedy of Massachusetts,
plaintiff, filed suit against the Administrator of General
Services Administration seeking a declaration that the
Family Practice of Medicine Act 18 had become law and
an order requiring the defendant to publish the Act as a
validly enacted law. The Family Practice of Medicine Act
had been passed by large margins in both the Senate and
the House, and was presented to the President for his
approval on December 14, 1970. Both Houses thereafter
adjourned for the Christmas holidays. The President
neither signed nor vetoed the measure but issued a
statement disapproving the bill and announcing that he
would not sign it. Senator Kennedy, the chief proponent
of the Act and one of the Senators who had voted in favor
of it, maintained that the President's [**32] actions in
disapproving the action resulted in a "pocket veto" which
would automatically become law after ten days. In the
alternative, Senator Kennedy argued that if the
President's actions could be considered a veto, the Act
should be returned for further consideration by Congress.
As it stood, Senator Kennedy argued that his vote had
been impaired because the Act had neither become law
nor had he been given his right to vote on an override. A
major barrier to Senator Kennedy's suit was the question
of standing. On appeal the circuit court concluded that
"any of the traditional methods of evaluating the standing
of a party to sue" Id, at 433, would support the plaintiff's
claim of standing. In particular the court reviewed
Coleman and stated that:
18
S. 3418, 91st Cong., 2d Sess. (1970).
(T)he office of United States Senator
does confer a participation in the power of
the Congress which is exercised by a
Senator when he votes for or against
proposed legislation. In the present case,
appellee has alleged [**33] that conduct
by officials of the executive branch
amount to an illegal nullification not only
of Congress' exercise of its power, but also
of appellee's exercise of his power. In the
language of the Coleman opinion,
appellee's object in this lawsuit is to
vindicate the effectiveness of his vote. No
more essential interest could be asserted
by a legislator. We are satisfied, therefore,
that the purposes of the standing doctrine
are fully served in this litigation.
Id. 307 U.S. at 436, 59 S. Ct. at 974.
It follows, therefore, that Coleman and Kennedy
support the proposition that a plaintiff in his position as a
legislator, and having full authority to act in that office,
exercises his right to vote on a matter and that if that vote
or opportunity to vote is nullified that the plaintiff has a
protected interest in vindicating his vote. The plaintiffs
here are specially empowered under article V to
participate in the amendment process, and are therefore
asserting a judicially recognizable injury particular to
themselves and not what might be termed a "general
grievance." The plaintiffs have exercised their right to
participate in the amendment process by voting in favor
of ratification [**34] and at a subsequent time voting for
rescission of that prior ratification. With reference to the
assumptions that must be drawn from the complaint, it is
clear that the plaintiffs' acts have been infringed and held
for naught in that they have not been given the full effect
that was intended. For example, the actions of Congress
in lengthening the ratification period and extending
Idaho's ratification into a period which was not
contemplated initially expressly impinges upon the
plaintiffs' action of ratifying only for the limited period
and gives rise to an action to vindicate the intent of their
vote. In the same vein, the refusal to recognize the
plaintiffs' act of rescinding the prior ratification as fully
and completely retracting the prior expression [*1121]
impinges on the legislator's right to participate in the
ratification process and gives rise to a cause of action.
The plaintiffs in this instance have established direct
injury in fact to their constitutionally protected interest of
participating in the process of amending the Constitution
and thus the first bar to standing has been met.
The inquiry must now shift to the question whether
or not there is a "causal connection" [**35] or "logical
nexus" between the actions of the defendant and the
injury suffered by the plaintiffs. In addressing the
problem of standing to raise the question of the right of
rescission, an essential part of this inquiry is into the
nature of the duties of the defendant as found in 1 U.S.C.
§ 106b. 19 While the plaintiffs argue that the defendant
exercises a discretionary function in determining whether
a ratification has been made in "accord(ance) (with) the
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27 Empl. Prac. Dec. (CCH) P32,352
provisions of the Constitution," the defendant maintains
his function is merely ministerial. If the defendant's
authority is discretionary, then there would exist a direct
causal link between his actions of not giving full effect to
the rescission and the impairment of the plaintiffs' vote.
If, however, the defendant's acts are merely ministerial,
then no causal connection would exist. Rather than
attempt to resolve one of the merits in this case under a
consideration of standing, and following the principle laid
down by Harrington v. Bush, supra, the material
allegations of the complaint must be accepted as true,
thus the defendant's acts must be considered
discretionary. In doing so, it becomes clear that the causal
connection [**36] between the defendant's act and the
plaintiffs' injury is fulfilled.
19
For full text see footnote 1, supra.
With regard to the alleged injury flowing from the
extension of the time limitation, the defendant argues that
no causal connection exists between any act of his and
the injury to the plaintiffs, if any, because such would
flow from the congressional act of passing the extension
resolution. The court in Riegle v. Federal Open Market
Committee, supra, dealing with a similar argument,
indicated that where the causation requirement is not met
because the named defendants are not the actual cause of
the injury, e.g., in Riegle the cause of the injury was the
Congress' act in passing 12 U.S.C. § 263(a) and not the
committee's actions pursuant to that statute, it is proper to
allege as a defendant those parties who act
"unconstitutionally under the law ... and not the
legislature which enacted the statute. See generally,
Marbury v. Madison, 5 U.S. 137 1 Cranch 175-80,, 2 L.
Ed. 60 (1803)." Id. at 879 [**37] n.6.
Finally, since the causation requirement can also be
met by showing that "prospective (judicial) relief will
remove the harm," Warth v. Seldin, supra, 422 U.S. at
498-99, 95 S. Ct. at 2204-05, see Duke Power v. Caroline
Env. Study Gp., supra, and it is clear that the plaintiffs'
alleged injury can be redressed by a declaration by this
Court regarding the constitutionality of the various acts of
rescission and extension, this requirement can be satisfied
by the Court's consideration of and resolution of the
merits.
It is clear from the foregoing review of the
constitutional and prudential limitations to the Court's
jurisdiction that the Idaho legislators are proper parties to
bring this suit in that they have met all of the
requirements for standing outlined by the Supreme Court.
Furthermore, since they are also proper plaintiffs to raise
all of the issues presented by this suit, the Court need not
determine the merit of the other plaintiffs' assertions of
standing.
B. Ripeness
A second consideration for the Court in determining
justiciability is whether or not the action and the issues
presented are sufficiently ripe for adjudication. "As is
well known the federal courts established [**38]
pursuant to Article III of the Constitution do not render
advisory opinions. For adjudication of constitutional
issues, "concrete legal issues, presented in actual cases,
not abstractions,' are requisite. This is as true of
declaratory judgments as any other [*1122] field."
United Public Workers v. Mitchell, 330 U.S. 75, 89, 67 S.
Ct. 556, 564, 91 L. Ed. 754 (1947). While some of the
considerations found in standing may overlap in the
analysis of ripeness, they are nevertheless founded on
essentially different inquiries. "Unlike the doctrine of
standing, which establishes that the plaintiff must have
sufficient interest in a case, or the requirement that the
controversy must be real and not collusive, the doctrine
of ripeness focuses upon the extent to which the
controversy has matured at the time of the litigation."
Dyer v. Blair, 390 F. Supp. 1287, 1289 (N.D.Ill.E.D.,
1974). Thus the focus is shifted away from the litigants
themselves and turned to the development of the issues to
assure that the parties are so arrayed with adverse legal
interests and in such a concrete fashion as to warrant
judicial relief. Golden v. Zwickler, 394 U.S. 103, 108, 89
S. Ct. 956, 959, 22 L. Ed. [**39] 2d 113 (1969); Aetna
Life Insurance Co. of Hartford, Conn. v. Haworth, 300
U.S. 227, 240-41, 57 S. Ct. 461, 463-64, 81 L. Ed. 617
(1937).
Recently, Justice Powell held that the issues in
Goldwater v. Carter, 444 U.S. 996, 100 S. Ct. 533, 62 L.
Ed. 2d 428 (1979) were not ripe for judicial
determination. He wrote:
This Court has recognized that an issue
should not be decided if it is not ripe for
judicial review. Buckley v. Valeo, 424
U.S. 1, 113-114 (96 S. Ct. 612, 679-80, 46
L. Ed. 2d 659) (1976) (per curiam).
Prudential considerations persuade me that
a dispute between Congress and the
President is not ready for judicial review
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27 Empl. Prac. Dec. (CCH) P32,352
unless and until each branch has taken
action
asserting
its
constitutional
authority. Differences between the
President and the Congress are
commonplace under our system. The
differences should, and almost invariably
do, turn on political rather than legal
considerations. The Judicial Branch
should not decide issues affecting the
allocation of power between the President
and Congress until the political branches
reach a constitutional impasse.
Id. at 997, 100 S. Ct. at 534.
Since Goldwater dealt with the question of the
allocation of power between [**40] two coordinate
branches of government, the President and the Congress,
in the process of terminating a mutual defense treaty, the
constitutional impasse that Justice Powell was looking for
was the assertion of apparently conflicting constitutional
powers. Congress, however, had not taken any action
with regard to the President's cancellation of the treaty.
Thus, until Congress took action asserting what might be
perceived as its authority under the Constitution, the case
would not be ripe for adjudication. This case presents a
somewhat similar situation. The essential questions here
relate to the allocation of power of two entities-the state
legislatures and Congress-acting under the auspices of
article V. The inquiry is, therefore, whether inconsistent
or conflicting positions have been taken regarding that
power which would create the type of impasse necessary
for judicial interpretation.
An initial argument relied on by the defendant
should be dealt with at this juncture of the Court's
consideration of the question of ripeness. The defendant
argues that questions such as those raised by this
litigation are not ripe until three-fourths of the states have
acted in ratifying. He argues [**41] that since the
amendment process consists of "succeeding steps in a
single endeavor," Dillon v. Gloss, 256 U.S. 368, 375, 41
S. Ct. 510, 512, 65 L. Ed. 994 (1921), until all the steps
are taken, questions arising from that process are not ripe
for adjudication. Whatever the logical appeal this
argument might have, the Court is not at liberty to accept
this approach in light of the overwhelming caselaw to the
contrary. The Court is not aware of nor has it been
referred to any case under article V that has been
dismissed on the grounds that the case is not ripe because
all the steps have not been taken. Rather, it appears that
numerous Supreme Court and lower court cases have
resolved specific substantive and procedural questions
relating to article V prior to ratification by three-fourths
of the states. See Kimble v. Swackhamer, 439 U.S. 1385,
99 S. Ct. 51, 58 L. Ed. 2d 225 [*1123] (1978); Dyer v.
Blair, 390 F. Supp. 1291 (N.D.Ill.1975); 20 Trombetta v.
Florida, 353 F. Supp. 575 (M.D.Fla.1973); Coleman v.
Miller, 307 U.S. 433, 59 S. Ct. 972, 83 L. Ed. 1385
(1939); United States v. Sprague, 282 U.S. 716, 51 S. Ct.
220, 75 L. Ed. 640 (1931); Leser v. Garnett, 258 U.S.
130, 42 S. [**42] Ct. 217, 66 L. Ed. 505 (1922);
National Prohibition Cases, 253 U.S. 350, 40 S. Ct. 486,
64 L. Ed. 946 (1920); Hawke v. Smith, No. 2, 253 U.S.
231, 40 S. Ct. 498, 64 L. Ed. 877 (1920); Hawke v.
Smith, No. 1, 253 U.S. 221, 40 S. Ct. 495, 64 L. Ed. 871
(1920); Dillon v. Gloss, 256 U.S. 368, 41 S. Ct. 510, 65
L. Ed. 994 (1921); Hollingsworth v. Virginia, 3 U.S. 378
3 Dall 378, 1 L. Ed. 644 (1798). Therefore, the Court
must review the actions of the defendant and plaintiffs to
determine whether or not they have exercised their
authority under article V so as to create a constitutional
impasse, noting always that the Court in reviewing the
defendant's motion to dismiss for lack of ripeness, it must
construe the material portions of the plaintiffs' complaint
against the moving party and in a light most
advantageous to the plaintiffs. Warth v. Seldin, 422 U.S.
490, 501, 95 S. Ct. 2197, 2206, 45 L. Ed. 2d 343 (1975).
20 The first Dyer v. Blair, 390 F. Supp. 1287
(N.D.Ill.E.D., 1974) was dismissed because the
issues were not ripe because the legislature of
Illinois had not completed action on the
amendment. Until full legislative action had been
completed, a challenge to its procedure could not
be entertained. When full consideration had been
completed, however, the issues were heard, Dyer
v. Blair, 390 F. Supp. 1291 (N.D.Ill.1975), thus
making it clear that not all issues relating to the
amendment process remain unripe until
three-fourths of the states have acted.
[**43]
Considering the question of the propriety of the
extension resolution passed by Congress, the plaintiffs,
the Idaho legislators, exercised their authority under
article V by enacting a ratification resolution which is
good for only the seven-year period originally proposed
by Congress. The congressional act extending the
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27 Empl. Prac. Dec. (CCH) P32,352
ratification period continues Idaho's ratification into a
period to which it has not consented thus contravening
the asserted intent of their ratification. Both the parties
have exercised what they argue are their powers granted
under Article V, and there is no subsequent act necessary
to bring the question of extension into issue. The Idaho
plaintiffs have acted to ratify for the seven-year period
and Congress has abrogated that vote by extending it
beyond the period intended by those ratifying, thus, since
the extended period began, Idaho has had a continuing
injury that is ripe for judicial resolution.
Turning to the question of the ripeness of the
rescission issue, it appears that it also is ripe for much the
same reason. The state legislature passed a resolution
rescinding its prior ratification of the Equal Rights
Amendment, and certified that fact to the Administrator
[**44] of General Services. The act of rescission served
the dual purpose of (1) establishing the state's position
regarding the ratification of the proposed amendment,
and (2) cancelling its prior act of ratification. Again
accepting as true the material allegations of the
complaint, i.e., Idaho's authority to rescind its prior
ratification, and the defendant's exercise of discretion to
determine that the state rescission is not to be given full
effect, then the fact that the defendant has refused to
remove Idaho's name from the official lists of those who
are considered as having ratified, but has merely reported
the rescission along with the ratification is a sufficient
assertion of an adverse power to create that impasse
necessary for adjudication. The actions of the defendant
in refusing to give full effect to the state's rescission, both
lets stand the prior ratification which the state no longer
supports and refuses to recognize its present position, and
gives rise to a fully ripe conflict of the type proper for the
courts to resolve.
presenting a "political question" will not be adjudicated
by the courts. Goldwater v. Carter, 444 U.S. 996, 100 S.
Ct. 533, 62 L. Ed. 2d 428 (1979); Powell v. McCormack,
395 U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969);
Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d
663 (1962). In outlining the parameters of the political
question doctrine, the Supreme Court established that "it
is the relationship between the judiciary and the
coordinate branches of the Federal Government, and not
the federal judiciary's relationship to the States, which
gives rise to the "political question' .... The
nonjusticiability of a political question is primarily a
function of the separation of powers." Baker v. Carr,
supra at 210, 82 S. Ct. at 706. While the questions
presented for this [**46] Court's determination deal
essentially with the relationship and allocation of
authority between the Congress and the states pursuant to
article V of the Constitution, the antecedent question of
who decides what that relationship is must be decided.
That, it is contended, brings into play the potential bar of
the "political question" doctrine. 21
21 It has been argued by the plaintiffs that the
"political question" doctrine does not apply in this
case because the questions presented here do not
bring into play separation of powers
considerations but rather deal with the problem of
"federalism," i.e., the balance of authority
between the states and the federal government.
This argument is ill-conceived for two reasons.
First, it overlooks the preliminary question of who
should address the issues, the courts or
Congress-clearly a question of separation of
powers. Second, the argument misperceives the
nature of the amending process. The courts have
long held that when acting pursuant to its
authority under article V, the states are not
performing a traditional state function but instead
a federal function. Hawke v. Smith, No. 1, 253
U.S. 221, 40 S. Ct. 495, 64 L. Ed. 871 (1920).
Similarly, when Congress acts pursuant to its
authority under article V, it is acting in a special
nontraditional federal function. Hollingsworth v.
Virginia, 3 U.S. 378 3 Dall 378, 1 L. Ed. 644
(1798). Thus, since both are in essence federal
entities, a question of federalism would not be
presented. Instead, the questions present problems
of constitutional interpretation.
Since the issues are properly before the Court, and
presented by the proper parties, the Court must now
determine whether the questions are those which [**45]
are to be decided by the courts or by another one of the
co-equal branches.
C. Political Question
Defendant maintains that if the questions presented
in the instant case are [*1124] determined to be
otherwise justiciable, the case is barred from
consideration by this Court because it presents a
non-justiciable "political question." The case law in the
federal courts uniformly holds that a cause of action
[**47]
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The Supreme Court has given six formulations of the
political question doctrine, any one of which operates as a
"velvet blackjack" 22 removing this Court's power to
exercise jurisdiction over these matters. The six criteria
are:
22
A phrase coined by Professor Bickel to
describe the operation of the "political question"
doctrine. Bickel, The Least Dangerous Branch
(1962).
(1) a textually demonstrable
constitutional commitment of the issue to
a coordinate political department; (2) or a
lack of judicially discoverable and
manageable standards for resolving it; (3)
or the impossibility of deciding without an
initial policy determination of a kind
clearly for nonjudicial discretion; (4) or
the impossibility of a court's undertaking
independent resolution without expressing
lack of the respect due coordinate
branches of government; (5) or an unusual
need for unquestioning adherence to a
political decision already made; (6) or the
potentiality of embarrassment from
multifarious pronouncements by various
[**48] departments on one question.
Baker v. Carr, supra at 217, 82 S. Ct. at 710.
An analysis of the question of the state's power to
rescind a prior ratification and Congress' power to extend
the ratification deadline, along with the initial question of
who decides these questions, should be considered in
conjunction with these six formulations of the political
question doctrine to determine whether or not this Court
is barred from further consideration of this matter.
1.
Textually
Demonstrable
Constitutional
Commitment to a Coordinate Political Department
In Goldwater v. Carter, supra, Justice Brennan wrote
that the "political question" doctrine restrains courts'
review of an exercise of a policy decision made by a
[*1125] coordinate political branch to
which authority to make that judgment has
been "constitutional(ly) commit(ted)"
Baker v. Carr, 369 U.S. 186, 211-213, 217
(82 S. Ct. 691, 706-08, 710, 7 L. Ed. 2d
663) (1962). But the doctrine does not
pertain when a court is faced with the
antecedent question whether a particular
branch
has
been
constitutionally
designated as the repository of political
decisionmaking power. Cf. Powell v.
McCormack, 395 U.S. 486, 519-521
[**49] (89 S. Ct. 1944, 1962-63, 23 L.
Ed. 2d 491) (1969). The issue of
decisionmaking authority must be
resolved as a matter of constitutional law,
not political discretion; accordingly, it
falls within the competence of the courts.
Goldwater v. Carter, supra 444 U.S. at 1006-7, 100
S. Ct. at 539.
In a somewhat similar vein the court in Baker v.
Carr, supra, wrote that "(d) eciding whether a matter has
in any measure been committed by the Constitution to
another branch of government ... is itself a delicate
exercise in constitutional interpretation and is a
responsibility of this Court as ultimate interpreter of the
Constitution." 369 U.S. at 211, 82 S. Ct. at 706. In
addition, the Supreme Court has indicated that
In order to determine whether there has
been a textual commitment to a
co-ordinate
department
of
the
Government, we must interpret the
Constitution .... we must first determine
what power the Constitution confers ...
before we can determine to what extent, if
any, the exercise of that power is subject
to judicial review.
....
In other words, whether there is a
"textually demonstrable constitutional
commitment of the issue to a co-ordinate
political
[**50]
department"
of
government and what is the scope of such
commitment are questions we must
resolve ....
Powell v. McCormack, supra 395 U.S. at 519, 521,
89 S. Ct. at 1963, 1964.
Therefore, in order to determine the existence and
extent of any "textual commitment" to the various actors
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under article V it is necessary to turn to the Constitution
itself in order to determine the allotment of powers
among the participants and the degree to which each is
subject to judicial review or interpretation. While it is
noted that the text of the Constitution does not expressly
deal with either of the substantive questions presented nor
does it direct either the Congress or the judiciary to
determine how article V should be interpreted, this fact
"is not in itself controlling; for with the Constitution, as
with a statute or other written instrument, what is
reasonably implied is as much a part of it as what is
expressed." Dillon v. Gloss, 256 U.S. 368, 373, 41 S. Ct.
510, 512, 65 L. Ed. 994 (1921). In attempting to
determine what is implied by article V, it appears
appropriate for the Court to try first to ascertain why
article V was structured as it is and what the intent of the
framers [**51] was in providing for this section of the
Constitution. In order to do so the philosophical and
historical underpinnings of article V must be scrutinized.
In addition, since the courts have not been reluctant in
interpreting article V, the authoritative case law must be
reviewed.
Before embarking on a review of the allocation of
powers under article V to determine the existence of a
constitutional commitment of the pending issues to a
particular party, one of the defendant's contentions must
be considered. The defendant argues that the whole of
this case is barred from judicial consideration because the
Congress is granted exclusive and plenary control over all
phases of and questions arising out of the amendatory
procedure. A three-judge court in Dyer v. Blair, 390 F.
Supp. 1291 (1975) addressed this proposition. Judge
Stevens (now Justice Stevens) wrote:
There is force to ... (this) argument since
it was expressly accepted by four Justices
of the Supreme Court in Coleman v.
Miller, 307 U.S. 433, 59 S. Ct. 972, 83 L.
Ed. 1385. But since a majority of the
Court refused to accept that position in
that case, and since the Court has on
several occasions decided questions
arising under [**52] article V, even in the
face of "political question" contentions,
that argument [*1126] is not one which a
District Court is free to accept.
Dyer v. Blair, supra at 1299, 1300 (footnotes
omitted).
Furthermore, a review of article V reveals that the
judiciary, while only dealing with article V in a handful
of cases, has nevertheless dealt with virtually all the
significant portions of that article. These decisions
considered and interpreted the following underlined
portions of article V:
The Congress, whenever two thirds of
both Houses shall deem it necessary, shall
propose Amendments 23 to this
Constitution, ... which ... shall be valid to
all Intents and Purposes, as part of this
Constitution 24, when ratified 25 by the
Legislatures 26 of three fourths of the
several States, or by Conventions in three
fourths thereof, as the one or the other
Mode of Ratification may be proposed by
the Congress 27 ....
23 The National Prohibition Cases, 253 U.S.
350, 40 S. Ct. 486, 64 L. Ed. 946 (1920)
considered this portion of article V. This case
established the principle that "two-thirds of both
Houses" could be two-thirds of a congressional
quorum rather than the full membership of each
House. Furthermore, this case determined that the
mere act of Congress proposing an amendment is
sufficient to indicate that it is "deem(ed) ...
necessary." Id. at 386. Finally, the court decided
that the term "amendment" includes additions to
the Constitution rather than mere changes in
matters already present in the Constitution. Id.
[**53]
24 In Dillon v. Gloss, 256 U.S. 368, 41 S. Ct.
510, 65 L. Ed. 994 (1921) the Supreme Court
considered this language and determined that an
amendment becomes part of the Constitution as of
the date of the ratification of the last state
necessary for three-fourths, instead of the time of
its promulgation by the Secretary of State of the
Administrator of General Services.
25
Dyer v. Blair, 390 F. Supp. 1287
(N.D.Ill.E.D., 1974). A three-judge district court
interpreted the word "ratified" and determined
that "article V delegates to state legislatures-or the
state convention depending on the mode of
ratification selected by Congress-the power to
determine their own voting requirements." Id. at
1308.
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26 In Hawke v. Smith, No. 1, 253 U.S. 221, 40
S. Ct. 495, 64 L. Ed. 871 (1920), the court held
that a provision in a state constitution allowing
legislation to be approved by referendum was
inapplicable to ratification of a constitutional
amendment because ratification is not an ordinary
legislative act. In reaching this decision the court
based its decision on its interpretation of the word
"legislature" as found in article V. Id. at 228-9,
40 S. Ct. at 497-98.
27 In United States v. Sprague, 282 U.S. 716,
51 S. Ct. 220, 75 L. Ed. 640 (1931) the court
considered this phrase in deciding that Congress
had complete discretion in determining which
entity could act to ratify a proposed amendment.
Id. at 730, 51 S. Ct. at 221.
[**54]
U.S.Const. Art. V (emphasis and footnotes added).
Finally, as will be pointed out later, giving plenary
power to Congress to control the amendment process runs
completely counter to the intentions of the founding
fathers in including article V with its particular structure
in the Constitution. 28 Therefore, in accordance with the
holding in Dyer and the overwhelming precedent
established in the case law arising under article V, the
position taken by the defendant that the Congress is
empowered to decide all issues concerning the
amendment process is clearly foreclosed, leaving this
Court with the more difficult question of determining the
various allocations of power under article V and the areas
wherein judicial review is precluded. For this it is
necessary to turn to the foundations of article V and an
understanding of the purposes and operation of this
critically important section of the Constitution.
28
See footnote 47 and accompanying text.
Professor Lester B. Orfield in his seminal work on
the [**55] constitutional amendment clause, The
Amending of the Federal Constitution (1942), offers an
insightful, analytical beginning point in understanding the
function of article V and the interrelationship of the
entities involved in that process by considering the
philosophical contributions made by article V. 29
Professor Orfield points out that in the realm of
political-philosophy and legal institutions, the idea of a
written constitution developed at a late stage of Western
Civilization and at [*1127] the forefront of this
development was the American experience. The doctrine
of popular sovereignty had a strong appeal to the
inhabitants of the colonies, and because the people were
considered sovereign it followed that the people could
create a constitution to dictate the legal structure of their
government. Furthermore, as part of establishing a
constitution, it also follows that once created, the
constitution could also provide a mechanism for changing
or amending the document. This idea of amending an
organic instrument, Professor Orfield points out, is
markedly and uniquely American and has a dramatic
impact on the philosophical concept of legal sovereignty.
29
See Chapter V pp. 127-168.
[**56]
A legal sovereign, as opposed to the popular
sovereign (or those who are the source of public opinion,
etc.) by definition is a person or body which is said to
have unlimited lawmaking power which is not subject to
any person or body legally superior to him; or in other
words, the legal sovereign is defined as having unlimited
lawmaking or legislative power. By way of illustration, in
the English system the Parliament is the legal sovereign
in that whatever it legislates is the supreme law of the
land. A dictatorship has the despot as its legal sovereign
for the same reason. In the American experience,
however, even though the people have been referred to as
the source of all political power, the creation of a written
constitution shifted the ultimate lawmaking powers from
the people, as a whole, and spread it among the various
branches of government. It is this shift of power from the
people to the constitutional structure that creates the
question of where the legal sovereignty resides. In
analyzing each of the possible alternatives, Professor
Orfield in turn rejected the proposition that legal
sovereignty rested in the states, either individually or
collectively; the federal government; [**57] or the states
and the federal government jointly, or finally the
judiciary. Professor Orfield's resolution of the question of
the location of legal sovereignty was that it ultimately
resides in the amending body as constituted and governed
by article V. Professor Orfield wrote:
Finally it must be seen that the status of
the amending body has an important
bearing on the controversy over the nature
and extent of the powers of the federal
government and the states, and on the
general
doctrine
of
sovereignty.
Sovereignty rests in neither the federal
government nor in the states, but, if it may
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be said to reside anywhere, in the
amending body. The amending capacity
demonstrates neither the supremacy of the
states nor of the federal government. At
one time it may operate in favor of the
states, and at another in favor of the
federal government. That the rights of
neither will be impaired is guaranteed by
their joint action in the amending process.
Both are but agents of the composite
states.
Id. at 164-5.
Regarding the amending body as the repository of
legal sovereignty has an interesting impact on the
perception of the amendment process and the participants
therein. Initially [**58] it should be noted that the two
participants listed in article V having a part in the
amendment process-Congress and the state legislature or
state convention-comprise an independent body which
solely has the power to alter the fundamental laws of the
land. In short, a body which transcends both federal and
state authority. When acting as part of the amending
body, both participants act pursuant to the power and
authority granted by article V and their traditionally
defined roles have no bearing on their authority to either
limit or expand them. See Hawke v. Smith, No. 1, 253
U.S. 221, 40 S. Ct. 495, 64 L. Ed. 871 (1920)
("ratification by a State of a constitutional amendment is
not an act of legislation within the proper sense of the
word .... The power to ratify a proposed amendment to
the Federal Constitution has its source in the Federal
Constitution." Id. at 229-30, 40 S. Ct. at 497-98);
Hollingsworth v. Virginia, 3 U.S. 378 3 Dall 378, 1 L.
Ed. 644 (1798). (In proposing or acting on a proposed
constitutional amendment Congress is not acting pursuant
to its "ordinary" legislative powers found in article I but
acts according to those powers granted [*1128] under
article V. [**59] Id. at 380 n.(a)). Within article V each
of the participants are assigned certain powers which
appear to be carefully balanced and approximately
equally distributed. For example, Professor Orfield, in
commenting upon the proposition that the states are really
the sovereign in that amendments are ultimately ratified
by them, writes that
(a)n amendment is never brought about
without prior initiation by Congress. Even
when a constitutional convention is
applied for by the state legislatures, the
call must go forth from Congress.
Congress, moreover, has the power to
select the mode of ratification. Looked at
from one angle, Congress has a dual
capacity in proposing amendments. It
actually initiates the amendment, while, at
the same time, its vote in favor of it is in a
way a vote of ratification, inasmuch as,
without it, the amendment cannot even go
before the states. It is in Congress that
amendments have been buried. The
initiatory powers of the state legislatures
have never as yet been brought to a
successful fruition. It thus appears that the
powers of the federal government with
reference to amendments are fully equal to
those of the states. A true sovereign must
therefore
embrace
[**60]
both
governments.
Id. at 154.
Thus, each participant works within his scope of
authority in order to bring about constitutional change.
The authority of each appears to be delicately balanced to
avoid any unseemly encroachment or potential for abuse.
This balance between the participants works from the
premise that both are the agents of the people, the sole
legitimate source of constitutional change, representing
them in markedly different fashions. James Madison
made reference to this balance in his writing in the
Federalist Papers. He wrote:
If we try the Constitution by its last
relation to the authority by which
amendments are to be made, we find it
neither wholly national nor wholly federal.
Were it wholly national, the supreme and
ultimate authority would reside in the
majority of the people of the Union; and
this authority would be competent at all
times, like that of a majority of every
national society, to alter, or abolish its
established government. Were it wholly
federal, on the other hand, the concurrence
of each State in the Union would be
essential to every alteration that would be
binding on all. The mode provided by the
plan of the convention is not founded
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[**61] on either of these principles. In
requiring more than a majority, and
particularly in computing the proportion
by States, not by citizens, it departs from
the national and advances towards the
federal character; in rendering the
concurrence of less than the whole number
of States sufficient, it loses again the
federal and partakes of the national
character.
Federalist Paper #39 (Madison).
The careful balance between the participants in the
amendment process is critical to understand in order to
assess the full scope of authority each has been assigned.
For such an understanding it is necessary to probe the
deliberations of the founding fathers in their drafting of
article V, as well as their experiences under local state
charters,
constitutions,
and,
the
Constitution's
predecessor, the Articles of Confederation.
It appears that the founding fathers were well
schooled in the concept of the amendability of governing
laws. Most, if not all, of the original states had
constitutions or charters which provided for orderly
change, by amendment, pursuant to specific procedures.
30 When the Articles of Confederation were drafted
provision was made for amendments of error, but concern
[**62] was expressed at the same time that the ability to
[*1129] amend would augment the power of the national
government to the detriment of the autonomy of the
states. See, Federalist Papers #21 (Hamilton). The
Articles of Confederation reflected this fear of a strong
national government by emphasizing both the autonomy
of the states and the delegated limited authority to the
national government. The amendment provision found in
the Articles of Confederation was written to ensure the
states' continued control over the national government.
This was done by virtually precluding any substantive
change in the basic distribution of power between the
national government and the states. The amendment
provision read:
30
"The first written charters or constitutions
providing for their amendment appear to have
been the charters of the Colony of Pennsylvania,
which was the only colony to make such
provision. Eight of the state constitutions during
the period between the declaration of
independence and the meeting of the
Constitutional Convention of 1787 contained
amendment clauses." Orfield, The Amending of
the Federal Constitution, 1 (footnotes omitted).
[**63]
The Articles of this Confederation shall
be inviolably observed by every State, and
the Union shall be perpetual; nor shall any
alteration at any time hereafter be made in
any of them, unless such alteration be
agreed to in a Congress of the United
States, and be afterwards confirmed by the
legislatures of every State.
Articles of Confederation, art. XIII, Documents of
American History 115 (5th ed. Commanger 1949).
(emphasis added)
The requirement of a perfect consensus of the states
effectively precluded change thus protecting the
autonomy of the states but it had the devastating effect of
undermining the ability of the government under the
Articles of Confederation to respond to political and
economic crises. 31 As history bears out any attempt
under the Articles of Confederation to strengthen the
national government was defeated by some individual or
coalition of states. This inability to respond adequately to
crises under the Articles of Confederation was one of the
main concerns that eventually led to the Constitutional
Convention of 1787. 32
31
See Federalist Paper #22 (Hamilton).
32
For example, James Madison wrote:
[**64]
The truth is, that the great principles of the
Constitution proposed by the convention may be
considered less as absolutely new, than as the
expansion of principles which are found in the
articles of Confederation. The misfortune under
the latter system has been, that these principles
are so feeble and confined as to justify all the
charges of inefficiency which have been urged
against it, and to require a degree of enlargement
which gives to the new system the aspect of an
entire transformation of the old.
Federalist Paper #40.
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The framers' experience with the Articles of
Confederation underscored the need for an amending
process in the new constitution that would allow the
government and the political system to respond
effectively to a changing political, social and economic
environment. The framers attempted to construct a
written constitution that could undergo change when
necessary, and, by implication, that could change in a
manner that would effectively respond to specific
problems. While on the one hand, they sought an
amendatory process that would [**65] promote
necessary and effective constitutional change, the framers
also firmly maintained their view that the people, as the
original source of all legitimate powers, must consent to
any change in the original document. This reference to a
popular consensus is viewed as an important response to
the particular fear of abuse of power by the national
government. For example, Alexander Hamilton wrote in
Federalist Paper # 22, "The fabric of American empire
ought to rest on the solid basis of THE CONSENT OF
THE PEOPLE. The streams of national power ought to
flow immediately from that pure, original fountain of all
legitimate authority." (emphasis in original)
was to be excluded from the amendment process. As for
the first challenge, the amendment clause was adequately
defended on the grounds that the new and difficult
experiment entered into by the states would require
periodic revision as was found under the Articles of
Confederation. 35 An amendment provision would be
needed to lend stability to the government and provide a
reliance on orderly change rather than to trust in chance
[**67] or violence. 36 The second challenge to the
proposal regarding the participation of the national
legislature in the amendment process appears to have
stemmed from a fundamental apprehension of increasing
federal power. In essence, the opponents to congressional
participation in an act of such fundamental import as the
reallocation of the basic distribution of power through
constitutional amendment believed that giving Congress
a substantial role would be "exceptional and dangerous"
because in any action that would curb or affect on the
national government's authority, the Congress would
abuse its power and refuse to assent to the change. 37
33
The Virginia (Randolf) and New Jersey
(Pinckney) Plans, together with Hamilton's Plan,
are available in Document of American History
134-8 (5th ed. Commanger 1949); Farrand, The
Framing of the Constitution of the United States,
87-9, 225-32 (1913); Drafting the Federal
Constitution, 46-90 (Prescott ed. 1941).
34 Madison, Journal of the Federal Constitution,
63 (Scott ed. 1898).
35
When the proposition was taken up for
discussion on June 5, Madison recorded that "Mr.
Gerry favored it," since "the novelty and difficulty
of the experiment," to Gerry's mind, required
"periodic revisions," the prospect of which
"would also give intermediate stability to the
government," for "nothing had yet happened in
the States where this provision existed to prove its
impropriety." Madison, supra, note 34 at 110.
Thus it was with a focus on promoting these two
essential values-(1) flexibility to respond to pressures;
and (2) the importance that the change proposed be
supported by a consensus of the people-that the founding
fathers sought to balance the amending power between
the national and local representatives. Keeping this
purpose in mind the Court turns to a consideration of the
allocation of amending authority.
When the Constitutional Convention assembled on
May 14, 1787, and during the next several weeks, plans
to improve the constitutional [**66] basis for
government were [*1130] presented by Charles
Pinckney (May 29), Edmund Randolf (May 29), and
Alexander Hamilton (June 18). 33 The Virginia Plan as
presented by Edmund Randolf consisted of fifteen
resolutions. Resolution XIII provided for amendments as
follows: "Resolved, that provision ought to be made for
the amendment of the Articles of Union, whensoever it
shall seem necessary; and that the assent of the National
Legislature ought not to be required thereto." 34 While
some initial support was found for this proposal, two
essential charges were brought against it: first, doubt was
expressed as to the propriety of an amendment clause
itself; second, and probably a more poignant challenge
was made to the proposition that the national legislature
[**68]
36
Madison reports that Mason defended the
proposal believing the plan adopted by the
Convention would "certainly be defective, as the
Confederation has been found on trial to be."
Therefore he thought the amendments would be
necessary and it would "be better to provide for
them in an easy, regular and constitutional way,
than to trust to chance and violence. It would be
improper to require the consent of the National
legislature, because they may abuse their power,
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and refuse their assent on that very account."
Madison, supra, note 34 at 149.
37 Madison, supra, note 34 at 72.
An alternative plan proposed by Charles Pinckney
visualized a more expanded role for Congress. In his
"Plan of a Federal Constitution", article XVI read:
If two-thirds of the Legislatures of the
States apply for the same, the Legislature
of the United States shall call a convention
for the purpose of amending the
Constitution; or, should Congress, with the
consent of two-thirds of each House,
propose to the States amendments to the
same, the agreement of two-thirds of the
Legislatures of the States shall be [**69]
sufficient to make the said amendments
parts of the Constitution. 38
38
Elliot, Debates on the Adoption of the
Federal Constitution 2d ed., 127-28 (1937
facsimile of 1836 ed.).
Alexander Hamilton supported the move to give
Congress a significant part in the amendment process. He
argued that
(t)he State Legislatures will not apply
for alterations; but with a view to increase
their own powers. The National
Legislature will be the first to perceive,
and will be most sensible to, the necessity
of [*1131] amendments; and ought also
to be empowered, whenever two-thirds of
each branch shall concur, to call a
Convention. There could be no danger in
giving this power, as the people would
finally decide in the case. 39
39 Madison, supra, note 34 at 692-3.
Since it was felt that neither the states nor the
Congress would act other than to promote its own interest
or what it perceived to be the present need, the final draft
of article V struck the middle ground of granting to each
the power to propose [**70] amendments to the
constitution. As Madison pointed out in defense of the
presently constituted article V:
That useful alterations will be suggested
by experience could not be foreseen. It
was requisite, therefore, that a mode for
introducing them should be provided. The
mode preferred by the convention seems
to be stamped with every mark of
propriety. It guards equally against that
extreme facility which would render the
Constitution too mutable; and that extreme
difficulty, which might perpetuate its
discovered faults. It, moreover, equally
enables the general and the State
governments to originate the amendment
of errors, as they may be pointed out by
the experience on one side or on the other.
Federalist Papers # 43.
The workings of the balanced approach to proposing
amendments is probably best explained by Alexander
Hamilton.
In opposition to the probability of
subsequent amendments, it has been urged
that the persons delegated to the
administration of the national government
will always be disinclined to yield up any
portion of the authority of which they
were once possessed. For my own part, I
acknowledge a thorough conviction that
any amendments which may, [**71]
upon mature consideration, be thought
useful, will be applicable to the
organisation (sic) of the government, not
to the mass of its powers; and on this
account alone I think there is no weight in
the observation just stated. I also think
there is little weight in it on another
account. The intrinsic difficulty of
governing thirteen States at any rate,
independent of calculations upon an
ordinary degree of public spirit and
integrity, will, in my opinion, constantly
impose on the national rulers the necessity
of a spirit of accommodation to the
reasonable
expectations
of
their
constituents. But there is yet a further
consideration, which proves beyond the
possibility of a doubt that the observation
is futile. It is this, that the national rulers,
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whenever nine States concur, will have no
option upon the subject. By the fifth
article of the plan, the Congress will be
obliged "on the application of the
legislatures of two thirds of the States
(which at present amount to nine), to call a
convention for proposing amendments,
which shall be valid, to all intents and
purposes, as part of the Constitution, when
ratified by the legislatures of three fourths
of the States, or by conventions [**72] in
three fourths thereof." The words of this
article are peremptory. The Congress
"shall call a convention." Nothing in this
particular is left to the discretion of that
body. And of consequence, all the
declamation about the disinclination to a
change vanishes in air. Nor however
difficult it may be supposed to unite two
thirds or three fourths of the State
legislatures, in amendments which may
affect local interests, can there be any
room to apprehend any such difficulty in a
union on points which are merely relative
to the general liberty or security of the
people. We may safely rely on the
disposition of the State legislatures to
erect barriers against the encroachments of
the national authority.
applied for determining whether there is sufficient
consensus or support for the change. Like the power to
propose amendments, both the states and Congress were
given a part in determining the extent of consent but
unlike the power to propose amendments, the authority
given each is distinctly different. Article V gives
Congress complete and unrestricted control of
designating the "Mode of Ratification", the power to
propose which of the two local entities, the state
legislature or state convention, will act in ratifying the
amendment. 40 The essential purpose behind this grant of
authority is for Congress to determine which of these
entities will best reflect the local sentiment regarding the
proposed amendment. 41 The states, on the other hand,
acting through the body chosen by Congress, have the
responsibility [**74] of ascertaining the local sentiment
or actual popular consent regarding the amendment. It is
clear that in formulating article V the framers found that
the states could most accurately reflect the existence vel
non of consent.
40
The Supreme Court confirmed this fact in
United States v. Sprague, 282 U.S. 716, 732, 51
S. Ct. 220, 222, 75 L. Ed. 640 (1931).
41
To illustrate why this determination is
essential consideration should be given to the
relationship of who proposes the amendment and
who ratifies. If the states, through their
legislatures, apply for a convention to propose
amendments to the Constitution, and by that
method succeed in proposing an amendment,
Congress then has the clear option of deciding
whether to submit the matter for ratification to the
state legislatures, who in essence proposed the
measure, or an alternative local group which
might better reflect the local sentiment. If
Congress proposes the amendment, there does not
appear to be any particular reason why one entity
should be preferred above another. But then
again, the legislative history of the twenty-first
amendment should be given careful scrutiny.
Federalist Paper # 85.
Thus, in promoting the first value of the amendment
clause, i.e., providing a means by which the Constitution
can remain responsive to change, authority was given to
both the states and Congress to propose necessary
amendments. The national government was given the
power to propose [*1132] amendments because as
Hamilton wrote the state legislatures can "erect barriers"
against its encroachment. Since the power to propose is
equally divided, the power [**73] to create barriers
against the national government must flow from the
distribution of authority in determining whether or not
proper consent for the change is derived from the people.
While the drafters of the Constitution found it
appropriate to grant the same power to propose
amendments to both the local and national governments,
a somewhat different distribution of authority was
[**75]
In considering the scope of the power granted to
Congress to set the mode of ratification the Court has
found that certain natural inferences must be read into
that delegation of authority. In Dillon v. Gloss, 256 U.S.
368, 41 S. Ct. 510, 65 L. Ed. 994 (1921), a suit
challenging Congress' power to restrict the period in
which an amendment can be considered by the states for
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ratification, the court observed that
(w)e do not find anything in the Article
which suggests that an amendment once
proposed is to be open to ratification for
all time, or that ratification in some of the
States may be separated from that in
others by many years and yet be effective.
We do find that which strongly suggests
the contrary. First, proposal and
ratification are not treated as unrelated acts
but as succeeding steps in a single
endeavor, the natural inference being that
they are not to be widely separated in
time. Secondly, it is only when there is
deemed to be a necessity therefor that
amendments are to be proposed, the
reasonable implication being that when
proposed they are to be considered and
disposed of presently. Thirdly, as
ratification is but the expression of the
approbation of the people [**76] and is to
be effective when had in three-fourths of
the States, there is a fair implication that it
must be sufficiently contemporaneous in
that number of States to reflect the will of
the people in all sections at relatively the
same period, which of course ratification
scattered through a long series of years
would not do.
....
Of the power of Congress, keeping
within reasonable limits, to fix a definite
period for the ratification we entertain no
doubt. As a rule the Constitution speaks in
general terms, leaving Congress [*1133]
to deal with subsidiary matters of detail as
the public interests and changing
conditions may require; and Article V is
no exception to the rule. Whether a
definite period for ratification shall be
fixed so that all may know what it is and
speculation on what is a reasonable time
may be avoided, is, in our opinion, a
matter of detail which Congress may
determine as an incident of its power to
designate the mode of ratification.
Id. at 374-6, 41 S. Ct. at 512-13.
As a subsidiary matter of detail, Congress has the
power, pursuant to its authority to designate the mode of
ratification, to set a reasonable time period in which
[**77] ratification may take place. It is significant that
the Dillon court in discussing the Congress' power to set
a particular time period for ratification spoke of the need
for the amendment process being completed within a
reasonably contemporaneous time period so as to indicate
the existence of the proper crescendo of consent
necessary for the amendment to legitimately become part
of the Constitution. Thus, as part of its power under
article V, Congress, as the national representative of the
people, serves a uniquely national function of
orchestrating the swell of support for the proposed
amendment by determining whether or not each local
state's manifestation of the people's will so relates with
the timing of the proposal and the expressions of consent
of the other states that it can realistically be said that the
constitutional changes flow from a consensus of the
people.
The court in Coleman v. Miller, 307 U.S. 433, 59 S.
Ct. 972, 83 L. Ed. 1385 (1939) went on to clarify the
nature of the determination that Congress must make in
deciding whether or not an expression of consent is
received within that reasonably contemporaneous time
period.
When a proposed amendment springs
from [**78] a concept of economic needs,
it would be necessary, in determining
whether a reasonable time had elapsed
since its submission, to consider the
economic conditions prevailing in the
country, whether these had so far changed
since the submission as to make the
proposal no longer responsive to the
conception which inspired it or whether
conditions were such as to intensify the
feeling of need and the appropriateness of
the proposed remedial action. In short, the
question of a reasonable time in many
cases would involve, as in this case it does
involve, an appraisal of a great variety of
relevant conditions, political, social and
economic ....
Id. at 453, 59 S. Ct. at 982.
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It is important to note that Congress' part in
determining whether or not a consensus has been reached
in a reasonable contemporaneous time period is not one
where they must initially or ultimately determine the
actual existence of consent or consensus, for that
determination Congress must look to the expressions of
the states in their role of representing the people locally.
Rather, the congressional determination is one of timing,
i.e., whether the concepts which gave rise to the
amendment continue in full [**79] force and effect
during the period in which the states act in ratifying.
This role of orchestrating the expressions of the
states which Congress has under its power to propose the
mode of ratification is appropriate for two related
reasons. First, in its role as a national legislature the
Congress is best suited to act in accumulating the states'
expressions of consent to formulate a broad picture of
local consensus. Second, Congress, it would appear, is
also best suited, because of the basic nature of the
question, to determine whether or not the expressions of
consent are sufficiently contemporaneous in time with
each other and with the proposal of the amendment. For
example, at the time of the Constitutional Convention the
founding fathers saw the necessity of an amending clause
as being predicated on the need for a process to meet and
solve unanticipated constitutional crises. As such it was
anticipated that the need for changing the Constitution
would not arise in a theoretical vacuum but be brought
about by socio/political economic forces which would
serve as the impetus for the move to amend. An
amendment, therefore, [*1134] would be a reasoned
response to the particular [**80] pressures and a specific
solution to them. It follows that as long as the
socio/political, economic pressures continue, and the
proposed amendment remains responsive to those
pressures, it can be said that the amendment is still viable,
and any state's action in ratifying would be considered
"contemporaneous" with all other actions on the
amendment. If, however, a change occurs in the
socio/political economic milieu, or in the proposed
amendment's ability to respond, then the amendment
cannot be said to be viable nor would a state's act in
ratifying the amendment be "contemporaneous" with the
spirit of the proposal or with other states which ratified
soon after the amendment was proposed. In Dillon v.
Gloss, supra, the Supreme Court cited with approval the
statement
that an alteration of the Constitution
proposed today has relation to the
sentiment and the felt needs of today, and
that, if not ratified early while that
sentiment may fairly be supposed to exist,
it ought to be regarded as waived, and not
again to be voted upon, unless a second
time proposed by Congress.
Id. 265 U.S. at 375, 41 S. Ct. at 512.
Therefore, since the essential inquiry regarding the
contemporaneousness [**81] of the consensus is one in
which the socio/political economic underpinnings are
monitored, it would appear such an exercise is clearly
best suited to the capabilities of Congress.
The states, on the other hand, have complete and
exclusive power over the process of determining actual
consent. They determine whether or not sufficient local
consensus exists and the process by which that consensus
is determined. It is this allocation of exclusive control
over the actual process of ratification, or determination of
actual consensus, that creates the "barrier to national
encroachment" that the founding fathers saw as a
necessity. The recognition of this local barrier to
encroachment has been recognized in two areas, the
procedure the states may follow in determining consent,
and the actual determination of consent itself. For
example, in Dyer v. Blair, supra, a three-judge district
court was presented with the question of whether
Congress or the states control the determination of a
requisite majority in a state's vote of ratification. After
noting that article V fails to indicate one way or the other
who should determine the voting requirement, the court
wrote:
We think the omission [**82] more
reasonably indicates that the framers
intended to treat the determination of the
vote required to pass a ratifying resolution
as an aspect of the process that each state
legislature, or state convention, may
specify for itself.
This conclusion is consistent
with-though by no means compelled
by-the underlying philosophy of the
framers with regard to the respective roles
of the central government and the several
state governments. Madison expressed the
thought in urging ratification of the
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Constitution in The Federalist No. 45:
The powers delegated by the proposed
Constitution to the federal government are
few and defined. Those which are to
remain in the State governments are
numerous and indefinite.
The Federalist No. 45, at 303 (Modern
Library ed.) (Madison). The ratifying
power did not, of course, "remain in the
state governments" because it was treated
by article V of the new Constitution. But
the failure to prescribe any particular
ratification procedure, or required vote to
effectuate a ratification, is certainly
consistent with the basic understanding
that state legislatures should have the
power and the discretion to determine for
themselves how [**83] they should
discharge the responsibilities committed to
them by the federal government.
Id. at 1306-7 (footnotes omitted).
It has been unquestioningly determined that a state's
assessment of local consensus is binding and beyond
reproach. It has been recognized that the official
certification to the national government of the state's
action with regard to the proposed amendment is binding
on both the national [*1135] government or its
representative, and the courts thus creating that
impregnable barrier which was intended. For example,
the court stated in Leser v. Garnett, 258 U.S. 130, 42 S.
Ct. 217, 66 L. Ed. 505:
The remaining contention is that the
ratifying resolutions of Tennessee and of
West Virginia are inoperative, because
adopted in violation of the rules of
legislative procedure prevailing in the
respective States. The question raised may
have been rendered immaterial by the fact
that since the proclamation the legislatures
of two other States-Connecticut and
Vermont-have adopted resolutions of
ratification. But a broader answer should
be given to the contention. The
proclamation by the Secretary certified
that from official documents on file in the
Department [**84] of State it appeared
that the proposed Amendment was ratified
by the legislatures of thirty-six States, and
that it "has become valid to all intents and
purposes as a part of the Constitution of
the United States." As the legislatures of
Tennessee and of West Virginia had
power to adopt the resolutions of
ratification, official notice to the
Secretary, duly authenticated, that they
had done so was conclusive upon him,
and, being certified to by his proclamation,
is conclusive upon the courts.
Id. at 137, 42 S. Ct. at 218 (emphasis added).
This barrier to encroachment by either the Congress
or the courts was confirmed by the Supreme Court in
Chandler v. Wise, 307 U.S. 474, 59 S. Ct. 992, 83 L. Ed.
1407 (1939). In Chandler a resolution of ratification was
vetoed by the lieutenant governor of Kentucky who was
acting in the governor's absence. Suit was filed
challenging the validity of the ratification on the basis of
the veto, but before the summons was served on the
governor an official notice of ratification was sent to the
Secretary of State, attesting to the fact that Kentucky had
duly ratified the amendment (the agent designated to
receive ratifications, the predecessor [**85] to the
present designate, the Administrator of General Services).
The Supreme Court noted that "the writ of certiorari
should be dismissed upon the ground that after the
Governor of Kentucky had forwarded the certification of
the ratification of the amendment to the Secretary of State
of the United States there was no longer a controversy
susceptible of judicial determination." Id. at 477-8, 59 S.
Ct. at 993. Finally, the courts have noted on several
different occasions that "(i)t is the approval of the
requisite number of states, not the proclamation (of the
GSA or Congress), that gives vitality to the amendment
and makes it part of the supreme law of the land." United
States ex rel. Widenmann v. Colby, 49 App. D.C. 358,
265 F. 998, 1000. Accord Dillon v. Gloss, supra, 265
U.S. at 376, 41 S. Ct. at 512-13. Therefore, when the
states act on an amendment and certify that determination
to Congress, that certification binds Congress leaving it
only with the determination of the question of
contemporaneousness. To view the powers of the state
any differently would so dilute the balance anticipated by
the founding fathers as to destroy the safeguards
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established in the amendment process. [**86]
From the foregoing it becomes clear that the precise
questions presented to this Court are not barred from
judicial review because of a textual commitment to a
coordinate branch of government. First, it is evident from
the balance struck between the two participants in the
amendment process that the framers did not intend either
of those two parties to be the final arbiter of the process.
It seems more logical that the courts, as a neutral third
party, and having the responsibility of "guardian of the
Constitution" 42 decide these questions raised under
article V because the amending power was split between
Congress and the states. The question of whether or not a
rescission of a prior ratification is a proper exercise of a
state's power under article V is one that is not committed
[*1136] to Congress, and should not be, but is
appropriate for judicial interpretation under the Court's
authority to "say what the law is." 43 Furthermore, while
the question of the reasonableness of the ratification
period is one committed to Congress, such is not the
question presented here. 44 Rather, the question presented
to the Court is one of procedure under article V and these
procedural [**87] questions have been held to be ones
which the Court must decide. 45 Dyer v. Blair, supra at
1301 n.24; National Prohibition Cases, 253 U.S. 350,
386, 40 S. Ct. 486, 488, 64 L. Ed. 946 (1920).
Your Honor. In terms of the hypothetical, I do not
disagree with that.
THE COURT: Your position is, this is within
a reasonable area and they first would make their
decision before the Court becomes involved?
MR. LINDER: That is correct.
Therefore, at some point the courts could
review a determination by Congress and
theoretically overrule its finding of what
constitutes a reasonable time period. Such a
position
undoubtedly
compromises
the
application of the "political question" doctrine
where the time period is in issue. Compare Dillon
v. Gloss, 256 U.S. 368, 376, 41 S. Ct. 510, 513,
65 L. Ed. 994 (1921).
[**88]
45
Professor Orfield has indicated in his
treatise:
If the Constitution made specific provision
for the submission of the question of the validity
of amendments to a designated tribunal, it might
perhaps be asserted that their validity is not a
question for the ordinary courts, though even in
that case the exclusion of the courts has been
doubted. Article Five, however, is silent, so that
there is much reason to assert that the validity of
amendments, like so many other controversies
which may arise over the interpretation of the
Constitution, is a legal question. The theory of the
courts in claiming the power to adjudicate
amendments is doubtless the same as that back of
the power to declare laws unconstitutional. The
Supreme Court may set aside any unconstitutional
act of Congress or of the President, and reverse its
own and the decisions of the lower courts where
the interpretation was erroneous. From this it
follows that where there is a failure to comply
with the regular mode of amendment prescribed
in Article V, the courts may regard the procedure
as null and void.
42 Federalist Paper # 78 (Hamilton).
43
United States v. Nixon, 418 U.S. 683, 703,
94 S. Ct. 3090, 3105, 41 L. Ed. 2d 1039 (1974),
quoting Marbury v. Madison, 5 U.S. 137, 1
Cranch 137, 177, 2 L. Ed. 60 (1803).
44 While it appears clear that the reasonableness
of the time period set by Congress is exclusively
within its control and barred from judicial review
by the "political question" doctrine, the defendant
has conceded that the "political question" bar is
not as absolute as initially indicated. In oral
argument before the Court the following answer
was given to the Court's inquiry:
THE COURT: Let me ask you one other
question. I recognize the argument in the political
question, and it is a very serious question, but
somewhere down the line, I assume that if
Congress got too far out of line on what was a
contemporaneous approval, the Court would
move in. Do you disagree with that?
MR. LINDER (defendant's attorney): No,
Orfield, supra note 30 at 13-14 (footnotes
omitted).
[**89]
Since the "textually demonstrable commitment"
formulation is not a barrier to the Court's consideration of
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the issues presented in this suit, the Court must turn to the
alternative problem of whether the questions presented by
this case are not suitable for judicial determination
because of a "lack of judicially discoverable and
manageable standards."
years between the proposal of an
amendment and the favorable action by
the Kansas legislature made the
ratification ineffective was a "political
question" to be finally determined by
Congress.
2. Lack of Judicially Manageable Standard
A number of important cases have dealt with the
parameters of this formulation of the political question
doctrine. Goldwater v. Carter, 444 U.S. 996, 100 S. Ct.
533, 62 L. Ed. 2d 428 (1979); Dyer v. Blair, 390 F. Supp.
1287 (N.D.Ill.E.D., 1974); Powell v. McCormack, 395
U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969); Baker
v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663
(1962); Coleman v. Miller, 307 U.S. 433, 59 S. Ct. 972,
83 L. Ed. 1385 (1939). More importantly several of these
cases have dealt with this standard in the context of
article V disputes. Dyer v. Blair, supra, and Coleman v.
Miller, supra. From a review of these cases in light of the
questions before this Court, it appears well settled that
these issues are not barred from consideration by the
Court for a lack of a judicially [**90] manageable
standard.
In Dyer v. Blair, supra, a three-judge district court
was faced with a suit that [*1137] very nearly parallels
the issues presented in this case. The state of Illinois took
action to ratify the proposed Equal Rights Amendment.
The plaintiffs who had been able to generate a majority
support in favor of the amendment, but unable to get the
requisite
three-fifths
majority,
challenged
the
constitutionality of the Illinois super-majority restriction
on ratification arguing that Congress, under its authority
to promulgate proposed amendments, was the proper
body to decide what voting majority is proper for
ratification. The question presented for the court was the
precise meaning of the term "ratified." In considering a
challenge to the suit on political question grounds, Justice
Stevens, writing for the court, wrote:
The strongest argument for regarding the
issue presented by these cases as a
"political question" rests on an asserted
"lack of judicially discoverable and
manageable standards for resolving it."
See Baker v. Carr, 369 U.S. at 217, 82 S.
Ct. at 710. That argument is buttressed by
the holding in Coleman v. Miller, 307 U.S.
433, 59 S. Ct. 972, 83 [**91] L. Ed. 1385
that the question whether the lapse of 13
That holding was based on the absence
of any acceptable criteria for making a
judicial determination of whether the
proposed amendment had lost its vitality
through lapse of time. The Court noted
that different periods might be reasonable
for different proposed amendments and
that varying economic or social conditions
might support differing conclusions. Such
considerations,
although
entirely
acceptable as a predicate for decision by
political departments of the government,
might be wholly inappropriate as a basis
for judicial decision.
Although the issue in ... (this) case( ) is
somewhat comparable to the lapse of time
issue in Coleman in that the criteria for
judicial determination are, perhaps,
equally hard to find, the answer does not
depend on economic, social or political
factors that vary from time to time and
might well change during the interval
between the proposal and ratification. A
question that might be answered [**92] in
different ways for different amendments
must surely be controlled by political
standards rather than standards easily
characterized as judicially manageable.
It is primarily the character of the
standards, not merely the difficulty of their
application, that differentiates between
those which are political and those which
are judicial. The mere fact that a court has
little or nothing but the language of the
Constitution as a guide to its interpretation
does not mean that the task of construction
is judicially unmanageable.
....
We are persuaded that the word
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"ratification (sic) as used in article V of
the federal Constitution must be
interpreted with the kind of consistency
that is characteristic of judicial, as
opposed to political, decision making. We
conclude, therefore, that whatever the
word "ratification" means as it is used in
article V, that meaning must be constant
for each amendment that Congress may
propose.
Id. at 1301-3.
Recently, in Goldwater v. Carter, supra, Justice
Rehnquist, drawing heavily from Dyer, formulated a
two-part test in the application of the lack of judicial
standard formulation of the political question doctrine.
[**93] The Goldwater case arose in conjunction with the
turmoil surrounding the presidential termination of the
mutual defense treaty with Taiwan. Suit was filed by
several senators seeking a declaration that Senate
approval was necessary before a treaty can be terminated.
In a plurality opinion, Justice Rehnquist referred to both
Coleman and Dyer to hold that the question of
termination was "political" and thus nonjusticiable.
[*1138] After a review of a part of the Coleman 46 case
he wrote:
46
Justice Rehnquist quoted the following
section from Coleman:
We think that ... the question of the efficacy
of ratifications by state legislatures, in the light of
previous rejection or attempted withdrawal,
should be regarded as a political question
pertaining to the political departments, with the
ultimate authority in the Congress in the exercise
of its control over the promulgation of the
adoption of the Amendment.
The precise question as now raised is
whether, when the legislature of the State, as we
have found, has actually ratified the proposed
amendment, the Court should restrain the state
officers from certifying the ratification to the
Secretary of State, because of an earlier rejection,
and thus prevent the question from coming before
the political departments. We find no basis in
either Constitution or statute for such judicial
action. Article V, speaking solely of ratification,
contains no provision as to rejection ....
Goldwater v. Carter, 444 U.S. 996, 1002-3,
100 S. Ct. 533, 537, 62 L. Ed. 2d 428 (1979), and
indicated that it was this part of the opinion that
served as the basis for his claim that Goldwater
was analogous to Coleman, i.e., termination like
rejection was not mentioned in the Constitution.
But for analytic purposes, Justice Rehnquist did
not continue to use the rejection discussion found
in Coleman as a basis for his holding in
Goldwater, but instead shifted to Justice Hughes'
discussion of the question of lapse of time and his
determination that no justiciable standard existed
to direct the courts to a decision on that issue.
This is evident from the fact that the reason the
Coleman court found the question of the efficacy
of a ratification in light of a previous withdrawal
was excluded by ellipsis. For example, the first
paragraph cited by Justice Rehnquist should have
read:
We think that in accordance with this historic
precedent the question of the efficacy of
ratifications by state legislatures, in the light of
previous rejection or attempted withdrawal,
should be regarded as a political question
pertaining to the political departments, with the
ultimate authority in the Congress in the exercise
of its control over the promulgation of the
adoption of the amendment.
Coleman v. Miller, 307 U.S. 433, 450, 59 S.
Ct. 972, 980, 83 L. Ed. 1385 (1939). Thus making
it clear that the rejection issue was not decided on
the grounds that a judicial standard was lacking
but rather that historical precedent dictated the
determination that it was a political question.
While concededly Coleman and Goldwater are
factually analogous, it is clear that analytically
they were handled differently. Therefore, for a
proper understanding of the holding in Goldwater,
Dyer v. Blair, 390 F. Supp. 1291 (N.D.Ill.1975)
should be scrutinized.
[**94]
Thus, Mr. Chief Justice Hughes' opinion
concluded that "Congress in controlling
the promulgation of the adoption of a
constitutional amendment has the final
determination of the question whether by
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lapse of time its proposal of the
amendment had lost its vitality prior to the
required ratifications. Id. (307 U.S.) at 456
(59 S. Ct. at 983).
I believe it follows a fortiori from
Coleman that the controversy in the
instant case is a nonjusticiable political
dispute that should be left for resolution
by the Executive and Legislative Branches
of the Government. Here, while the
Constitution is express as to the manner in
which the Senate shall participate in the
ratification of a treaty, it is silent as to that
body's participation in the abrogation of a
treaty. In this respect the case is directly
analogous to Coleman, supra. As stated in
Dyer v. Blair, 390 F. Supp. 1291, 1302
(ND Ill.1975) (three-judge court):
presented by the plaintiffs' complaint. But, it is equally
evident that the question of the state's ability to rescind
and the propriety of changing an established time
limitation are ones which should not be answered "in
different ways for different amendments." Rather, it is
clear that these questions are [**96] such that they "must
be interpreted with the kind of consistency that is
characteristic of a judicial as opposed to political,
decision making." To subject these questions to a variety
of inconsistent interpretations or approaches would create
an incurable uncertainty regarding the validity of the acts
of the participants, severely crippling the amendment
process. Such a result would violate the Supreme Court's
articulated purpose for the application of the political
question doctrine, "a tool for maintenance of
governmental order will not be so applied as to promote
only disorder." Baker v. Carr, supra 369 U.S. at 215, 82
S. Ct. at 709. 47
47
There is a constitutional interest in the
stability that the courts can provide. The purpose
of the framers in including article V can only have
been to provide for the orderly alteration of the
Constitution to ensure its responsiveness for
future generations. It is anomalous that a strictly
construed political question doctrine might
become the instrument for the disorder that would
ensue from congressional reversals of its own
precedent. Professor Orfield has noted:
A question that might be answered in
different ways for different amendments
must surely be controlled by political
standards rather than standards easily
characterized as judicially manageable.
In light of the absence of any
constitutional provision [**95] governing
the termination of a treaty, and the fact
that different termination procedures may
be appropriate for different treaties (see,
e.g., n.1, infra) the instant case in my view
also "must surely be controlled by political
standards."
From the point of view of orderly amending
procedure it is doubtful that the doctrine of
political question should be extended to other
procedural steps. If orderly procedure is essential
in the enactment of ordinary statutes, should it not
be even more so as to the adoption of important
and permanent constitutional amendments? Such
orderly procedure might call for compliance with
certain fundamental prerequisites without
emphasizing small details.
Id. at 1003, 100 S. Ct. at 537 (emphasis added).
Thus Justice Rehnquist found that where (1) there is
no specific constitutional provision governing the
particular question at hand, and (2) where it is found that
different answers might be appropriate in different
situations, the question is one to be controlled by political
standards and resolved [*1139] by one of the political
arms of the government.
Applying Justice Rehnquist's test to the questions
presented to this Court, it is certainly evident from the
Court's consideration of the structure of article V that the
Constitution is silent as to a determination of the issues
Orfield, supra, note 30 at 21.
[**97]
Before considering how the questions of rescission
and extension should be answered in the context of article
V, the remaining "political question" formulations must
be reviewed in order to determine if these questions are
still proper for the Court.
3. Do Prudential Considerations Counsel Against
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Judicial Intervention.
The final four formulations of the political question
doctrine found in Baker v. Carr, supra, which are the
impossibility of resolution without an initial policy
determination of a kind clearly for nonjudicial discretion,
or the impossibility of a court's undertaking independent
resolution without expressing lack of respect due
coordinate branches of government, or an unusual need
for unquestioning adherence to a political decision
already made, or the potentiality of embarrassment from
multifarious pronouncements by various departments on
one question, will be analyzed together since they all deal
with inherently similar considerations. For example,
Justice Powell in Goldwater v. Carter, supra, listed only
three political question criteria. While the first two
criteria were the same as those found in Baker v. Carr,
the third inquiry was: "(iii) Do prudential considerations
[**98] counsel against judicial intervention." Id. 444
U.S. at 998, 100 S. Ct. at 534. These prudential
considerations "concern( ) calling for mutual respect
among the three branches of Government. Thus, the
Judicial Branch should avoid "the potentiality of
embarrassment (that would result) from multifarious
pronouncements by various departments on one question.'
Similarly, the doctrine restrains judicial action where
there is an "unusual need for unquestioning adherence to
a political decision already made." Id. at 1000, 100 S. Ct.
at 535.
Some of the aspects of these prudential
considerations have been criticized if not eliminated from
the political question analysis. In Goldwater Justice
Powell addressed the problem of potential embarrassment
from multifarious pronouncements on a question and
indicated that "(i)nterpretation of the Constitution does
not imply lack [*1140] of respect for a coordinate
branch. Powell v. McCormack, ... (395 U.S.) at 548 (89
S. Ct. at 1978)." Id. at 1001, 100 S. Ct. at 536. He went
on to point out that resolving constitutional questions
pursuant to the court's duty " "to say what the law is,'
United States v. Nixon, 418 U.S. 683, 703 (94 S. Ct.
3090, [**99] 41 L. Ed. 2d 1039) (1974), quoting
Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 177 (2 L.
Ed. 60) (1803)." Id., would eliminate rather than create,
multiple constitutional interpretations.
In the same vein, Justice Stevens writing in Dyer v.
Blair, supra, analyzed the defendant's allegation that the
court should not rule on the question presented there
because it could produce an "unseemly conflict between
coordinate branches of government ...." His response
was: "We are persuaded, however, that this suggestion is
foreclosed by the Supreme Court's rejection of a
comparable argument in Powell v. McCormack ...." Dyer
v. Blair, supra at 1300. Justice Stevens quoted the
following section from Powell and then commented:
Respondents' alternate contention is that
the case presents a political question
because judicial resolution of petitioners'
claim would produce a "potentially
embarrassing
confrontation
between
coordinate branches" of the Federal
Government. But, as our interpretation of
Art. I, § 5, discloses, a determination of
petitioner Powell's right to sit would
require no more than an interpretation of
the Constitution. Such a determination
falls within the traditional role [**100]
accorded courts to interpret the law, and
does not involve a "lack of the respect due
(a) coordinate (branch) of government,"
nor does it involve an "initial policy
determination of a kind clearly for
nonjudicial discretion." Baker v. Carr, 369
U.S. 186, at 217, 82 S. Ct. 691, at 710 (7
L. Ed. 2d 663). Our system of government
requires that federal courts on occasion
interpret the Constitution in a manner at
variance with the construction given the
document by another branch. The alleged
conflict that such an adjudication may
cause cannot justify the courts' avoiding
their constitutional responsibility. See
United States v. Brown, 381 U.S. 437,
462, 85 S. Ct. 1707, 1722, 14 L. Ed. 2d
484 (1965); Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. 579, 613-614, 72
S. Ct. 863, 898, 96 L. Ed. 1153 (1952)
(Frankfurter, J., concurring); Myers v.
United States, 272 U.S. 52, 293, 47 S. Ct.
21, 84 (71 L. Ed. 160) (1926) (Brandeis,
J., dissenting).
....
The Court's reasoning in Powell v.
McCormack requires a similar conclusion
in this case. Decision of the question
presented requires no more than an
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interpretation of the Constitution. Such a
decision falls squarely within the [**101]
traditional role of the federal judiciary to
construe that document .... As the Supreme
Court pointedly noted in its citation of
McPherson v. Blacker, 146 U.S. 1, 24, 13
S. Ct. 3, (6) 36 L. Ed. 869, the possibility
that action might be taken in disregard of a
final judicial determination is an
"inadmissible suggestion."
Id. at 1300-1.
Of the prudential considerations advanced by the
case law dealing with this area only one appears to have
any bearing on this case-is there a need for an
"unquestioning adherence to a political decision already
made." Of all the political question formulations, this one
appears to be the strongest precedent for declaring the
issues of rescission and extension before the Court
nonjusticiable. This is because the Supreme Court's
holding in Coleman v. Miller, supra, that a rejection
followed by a ratification, an arguably similar act to a
ratification followed by a rescission, was a political
question since Congress had already made a
determination of that issue. Furthermore, in dicta, the
court in Coleman indicated that at the time Congress
decided the rejection question, they also resolved the
question of the effectiveness of a rescission. With
[**102] regard to the question of extension, by the very
act of passing the joint resolution extending the time
period by a simple majority, Congress has rendered a
determination [*1141] that it has the power to modify a
proposed mode of ratification in that manner, thus
leaving the Court with the question of whether or not
there is a compelling prudential reason to give
unquestioning adherence to that decision.
At the outset it should be noted that little has been
written on the parameters of this formulation of the
political question barrier. Thus key provisions have yet to
be clarified: for example, what is meant by "an unusual
need" to adhere to a decision made by a political branch.
It is unclear whether an "unusual need" is manifest by
considerations that go beyond the traditional notions of
separation of powers, or whether it is merely a reiteration
of that basic requirement. Aside from the problem of a
lack of guidance as to the application of the formulation
the whole approach has been severely criticized. This
criticism is based on the argument that "it seems an
unusual approach for the body recognized as having the
power to review acts of Congress to adopt and rely on an
act [**103] of Congress as precedent ...." 48 This
argument is even more persuasive when one considers
that presumably Congress' own determination would
have no binding effect on any subsequent Congress. 49
48 Orfield, supra, note 30 at 20.
49
"(Based) on the most familiar and
fundamental principles, so obvious as rarely to be
stated ... no Congress has the power to bind the
consciences of its successors, with respect to
grave questions of constitutional law ...." Black,
Amending the Constitution, 82 Yale L.J. 189,
191-92 (1972).
In the application of this prudential consideration
calling for deference to a decision made by a political
branch, one unequivocal factor necessary before the
Court can take cognizance of this limitation on its
jurisdiction is that there must be a clear, definitive
decision in existence that the courts can defer to. In
Coleman v. Miller, supra, apparently one of the first
times this prudential consideration was given application,
the court found that the question of the effectiveness
[**104] of a ratification after a prior rejection was a
political question based on the fact that "the political
departments of the Government dealt with the effect of
both previous rejection and of attempted withdrawal and
determined that both were ineffectual in the presence of
an actual ratification." Id. 307 U.S. at 449, 59 S. Ct. at
980. In reaching this conclusion, the court drew upon the
history of the ratification of the thirteenth, fourteenth, and
fifteenth amendments. Coleman, supra, is cited as
precedent in this case, particularly with regard to the
question of the validity of a rescission, for principally two
reasons: First, while any reference to Coleman as to the
effectiveness of a rescission is clearly dicta, the deference
the court chose to give to the congressional resolution of
the conflict over the adoption of the Civil War
Amendments could also be applicable here since those
amendments were confronted not only with questions of
ratifications after prior rejections but also of rescissions
after prior ratifications. Second, there are some analytical
similarities between a rejection and a rescission which
would indicate that they should be treated the same.
The application [**105] of the Coleman decision,
however, to the issues advanced in this case have been
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resisted on a number of different grounds. First, as
mentioned earlier, statements regarding the effectiveness
of a rescission in Coleman are dicta and have no
precedential value. Second, the whole of the court's
analysis of the question of rejection is also dicta and thus
should not be followed by the Court. Finally, if the Court
is to look to congressional handling of the question of the
effect of a rescission, a brief review of the full history of
congressional decision making regarding this issue makes
it clear that Congress has consistently refused to render a
final decision. Thus it would be impossible for this Court
to find a clear decision by the political branch on the
question of the effect of a rescission to which it would be
appropriate to defer.
Finally, the last and most substantial challenge to the
Coleman decision-that no congressional decision
regarding the issue in this case has been worthy of
deference-bears careful scrutiny. From a review of the
history of the proceedings surrounding the Civil War
Amendments which served as the basis for the holding in
Coleman and the subsequent actions of Congress
regarding the amendment process, the Court is persuaded
that, in fact, no decision has been made by a political
branch which would necessitate the Court's deferral of its
constitutional function of interpreting the Constitution.
The Court reaches this conclusion after considering the
following review of the clear historical precedents found
in the amendment process.
Turning attention to the first contention, there is little
dispute that the Coleman court was not presented with the
question [*1142] as to the effect of a rescission. Since
the question was not before the court, any discussion
regarding that issue would clearly be dicta and have only
the force of its underlying analysis to persuade
subsequent [**106] courts to follow. As for the second
contention that the court's holding that a "political
question" is presented when there is an inquiry into the
effectiveness of a ratification after a prior rejection is
dicta, this allegation is derived from a strict reading of the
Coleman decision. The Coleman court held that Congress
has the power to declare a proposed amendment is no
longer viable by refusing recognition of a state's
ratification where action has not been taken in a
reasonably contemporaneous time period. Since in
Coleman there was considerable doubt whether the Child
Labor Amendment was still viable after thirteen years, as
is evidenced by the fact that two dissenting justices
insisted that the amendment had lapsed, 50 and a
determination by Congress that the time period had
indeed lapsed would have suspended the need for a
determination of the effect of a prior rejection on a state's
subsequent ratification by rendering those questions
moot. The court's ruling on the question of ratification
after a rejection would not have had to be made in light of
how Congress would have decided the question of a
reasonable time limitation.
The fourteenth amendment was proposed and sent to
the states on July 21, 1866. By 1868, however, most of
the northern states had ratified the proposal but all the
ex-Confederate states, except Tennessee, had rejected the
proposal. On January 11, 1868, before any state had
attempted to change its mind either by ratifying after
having rejected, or by retracting its prior consent, Senator
Sumner of Massachusetts introduced a joint resolution
which recited that [**108] 22 states had ratified the
fourteenth amendment and declared that it was for all
intents and purposes a part of the Constitution.
Cong.Globe, 40th Cong., 2d Sess. 453 (1868).
Twenty-two would have been three-fourths of those loyal
states left in the Union at the end of the Civil War and
those who proposed the amendment. A similar resolution
was offered in the House of Representatives by
Representative Bingham on January 13, 1868. Id. at 475.
Two days later, the Ohio legislature voted to revoke its
ratification which previously had been certified to the
Secretary of State. On January 31, Sumner expressed the
opinion that the attempted withdrawal of Ohio's
ratification was ineffective because the amendment was
already a part of the Constitution. He declared:
This amendment was originally
proposed by a vote of two thirds of
Congress, composed of the representatives
of the loyal States. It has now been ratified
by the legislatures of three fourths of the
loyal States, being the same States which
originally proposed it, through their
representatives in Congress. The States
that are competent to propose a
constitutional amendment are competent
to adopt it. Both things have been done.
[**109] The required majority in
50
See Mr. Justice Butler and Mr. Justice
McReynolds' dissent. Coleman v. Miller, 307
U.S. 433, 470, 59 S. Ct. 972, 989, 83 L. Ed. 1385
(1939).
[**107]
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Congress have proposed it; the required
majority of States have adopted it.
Therefore I say this resolution of the
legislature
of
Ohio
is
brutum
fulmen-impotent as words without force.
Id. at 877 (emphasis added).
The resolutions of ratification and rescission sent by
Ohio were referred to the Senate [*1143] committee on
the judiciary along with Senator Sumner's motion. Id. at
453, 878. No further action was taken on the matters until
July 9, 1868. During the interim, however, the Congress,
on June 25, 1868, passed an act which conditioned
representation in Congress of the recalcitrant southern
states on the reorganization of their state governments
and the ratification of the fourteenth amendment. Id. at
3857. Most of the southern states then took action to
ratify the amendment including Louisiana, North
Carolina, and South Carolina who had specifically
rejected the amendment earlier. On July 9, 1868, the
House called upon the Secretary of State to compile "a
list of the States of the Union whose legislatures have
ratified the fourteenth article of the amendment." Id. at
3857. By this time New Jersey had acted in voting to
revoke its prior ratification. [**110] In a certificate of
the Secretary of State issued on July 20, 1868, listing
those states that had ratified, Louisiana, North Carolina,
South Carolina, Ohio and New Jersey were all included.
The Secretary of State apparently had no doubts as to the
ability of the legislatures of Louisiana, North Carolina,
and South Carolina to reverse their earlier rejection, but
as to the Ohio and New Jersey resolutions withdrawing
consent, the proclamation stated:
(i)t is deemed a matter of doubt and
uncertainty whether such resolutions are
not irregular, invalid, and therefore
ineffectual ....
(I)f the resolutions of the legislatures of
Ohio and New Jersey ratifying the
aforesaid Amendment are to be deemed as
remaining in full force and effect,
notwithstanding
the
subsequent
resolutions of the legislatures of those
States, which purport to withdraw the
consent of said states from such
ratification, then the aforesaid Amendment
has been ratified in the manner
hereinbefore mentioned,
become valid ....
and
so
has
15 Stat. 706-07 (1868).
On July 21, 1868, Georgia, under its
newly-constituted government, ratified the fourteenth
amendment. 51 That same day without debate, both
houses [**111] passed a concurrent resolution declaring
the Fourteenth Amendment to be part of the Constitution
and that should be promulgated as such. Cong.Globe,
40th Cong., 2d Sess. 4296 (1868). In its resolution of
promulgation compiled on July 28, 1868, 30 states were
listed including those that had rescinded and those that
had ratified over their prior rejection. Also, Georgia was
included in the proclamation. 15 Stat. 708-711 (1868).
The proclamation indicated that the amendment had been
ratified by these states "being three fourths and more of
the several States of the Union." Cong.Globe, supra at
4266 (emphasis added).
51 The Congress was well aware of Georgia's
ratification before action was taken on Secretary
Sewards' certification. The contents of Georgia's
ratification were received by the House by
telegram and read on the floor.
Inasmuch as Congress did not act to declare the
fourteenth amendment part of the Constitution until
additional ratification over and above the ratifications of
three-fourths of the [**112] loyal states had been
certified, it is plausible to infer that the view expressed by
Senator Sumner and Congressman Bingham that the
amendment had become effective before the further
ratifications or attempted withdrawals were made had
been rejected. The resolution adopted by Congress
declaring the amendment part of the Constitution,
however, is not inconsistent with their thesis, particularly
because no debate or legislative record can be found to
indicate whether the "three fourths and more of the
several states" accepts the view that only 22 states
constitutes the three fourths, or whether 28 states were
needed to fulfill the three-fourths requirement. Therefore,
because the question of whether the seceding states
should be counted in ascertaining the number of states
necessary for ratification by three-fourths was
inconclusively dealt with, it is impossible to find in this
legislative history a clear endorsement of the proposition
that Congress based its decision to declare the fourteenth
amendment part of the Constitution on the fact that it
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found both [*1144] rejections and rescissions
ineffective. Furthermore, if the Sumner-Bingham view is
rejected and a full 28 out of [**113] 37 states were
needed to constitute three-fourths, the fact that 30 states
were included in the declaration of ratification makes it
similarly impossible to determine whether or not
Congress really decided that the two rescinding states,
Ohio and New Jersey, were needed in order for the
amendment to become part of the Constitution. In fact, it
might be safe to say that the inclusion of the additional
two states obviated the need to make that decision, and
thus one was not made.
In appraising the argument that Congress
conclusively dealt with the questions of rejection and
rescission in its promulgation of the fourteenth
amendment, it is important to note that Congress has
never considered that decision to be determinative of the
issues. This is demonstrated by the actions of essentially
the same Congress that dealt with the fourteenth
amendment when it was presented with the problems of
the fifteenth amendment. With the fifteenth amendment,
again Ohio reversed itself, this time by approving the
amendment after first rejecting it. Cong.Globe, 41st
Cong., 2d Sess. 110-111 (1869). New York, on the other
hand, repudiated its earlier assent. Cong.Globe, 41st
Cong., 2d Sess. 377 (1870). [**114] In discussing these
developments on the floor of the Senate, Roscoe
Conkling of New York took the position that a
ratification was irrevocable but that a rejection had no
legal effect whatsoever. Id. at 1477. Senator Davis of
Kentucky argued that a vote by a state legislature either
to reject or to ratify was final and conclusive. Id. at 1479.
52 Significantly, neither mentioned the adoption of the
fourteenth amendment nor the resolution of Congress
declaring it to be in effect. A resolution including Ohio
and New York was introduced in Congress to proclaim
the adoption of the amendment, but it died without vote.
53 The Secretary of State later proclaimed the adoption of
the amendment by a certification that included Ohio and
New York, the latter's attempted withdrawal, however,
was noted. This certification was not made, however,
until two additional states had ratified, thus obviating the
necessity of reliance on either Ohio or New York's
action. Id. at 2290. If the fourteenth amendment did
resolve the question of rejection and rescission, it is
surprising it was not referred to as a precedent in this
situation.
52
"Both Conkling and Davis argued from the
premise that ratification by a state legislature had
the same effect as would ratification by a
convention in case that method were chosen by
Congress. Both assumed that ratification by a
convention would be final. Davis made the further
assumption that rejection by a convention would
exhaust the power of a state to act on an
amendment.
Note,
The
Constitutional
Law
of
Constitutional Amendments, 26 Notre Dame
Lawyer 185, 205 n.70 (1951).
[**115]
53
The resolution of promulgation read much
the same as the resolution adopted by the 40th
Congress to promulgate the fourteenth
amendment, but Congress refused to act on it.
Cong.Globe, 41st Cong., 2d Sess. 1444, 2738,
3142 (1870).
The lack of a definitive determination of the
questions of rescission or rejection by Congress during
the period following the fourteenth amendment was
highlighted by the introduction of a bill that would make
the attempted revocation of a state's consent to an
amendment null and void. Cong.Globe, 41st Cong., 2nd
Sess. 28 (1869). Although the measure passed the House,
Cong.Globe, 41st Cong., 2d Sess. 5356 (1870), the
Senate Judiciary Committee reported it out adversely;
and the bill died without further action. Cong.Globe, 41st
Cong., 3rd Sess. 1381 (1871). Congressional action since
the Civil War era has been equally indecisive. 54
54
For example, the following acts have been
initiated in Congress: S.2307, 90th Cong., 1st
Sess. (1967); S.623, 91st Cong. 1st Sess. (1969);
S.215, 92nd Cong., 1st Sess. (1971); S.1271, 93rd
Cong., 1st Sess. (1973), most would confirm the
state's right to rescind but none have received
enough support to be enacted as law.
[**116]
From the foregoing it is plain that Congress has not
come to any conclusion regarding the question of
rescission. The fact that congressional action could be
viewed at best as equivocal would indicate that even
[*1145] if the Court felt compelled to defer to a decision
made by Congress, it would be impossible to do so.
Therefore, the application of the political question
limitation in this situation is not mandated by prudential
considerations; furthermore, its application would be
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highly inappropriate in that it would work to further
confusion in an area where stability should be considered
a premium.
The alternative ground advanced for following the
Coleman holding on the nature of the question of the
validity of a rejection is that analytically a rejection and a
rescission should be treated the same, i.e., both "political
questions," since they are both but negative expressions
of a state's power to ratify. The Court is disinclined to
accept this argument because the nature of the question of
the effectiveness of a rescission of a prior ratification is
essentially different from the question presented in
Coleman as to the effect of a ratification after a prior
rejection. [**117] Thus, it is appropriate to treat one as
presenting a "political question" and the other as one
proper for judicial declaration.
To understand the Court's view that different
questions are presented by rescission and rejection which
should not be treated the same, it is necessary to
understand that this perception stems from the basic
relationship between the states and Congress in the
amending process and particularly in the procedure of
determining whether or not there is sufficient consent to
warrant the constitutional change. First, it is important to
recognize that it is the state's role to act as the voice of
the people in expressing their consent to the proposed
amendment. Second, it is also necessary to recognize that
Congress under its power to determine whether there is a
reasonably contemporaneous consensus acts in
coordinating the local expressions of consent by
considering them in light of the lapse of time and change
of circumstances since the amendment was proposed.
Because of this relationship, it is clear that Congress'
power to determine whether or not a state is part of the
growing crescendo of consent does not come into play
until the state has acted indicating [**118] that the
people wish to be included as part of the consensus. And
then Congress' authority is limited to only the question of
contemporaneousness of the expression of consent and
does not extend to a continuous monitoring of the
continued existence of actual local consensus. Instead,
Congress is bound by the official certifications of the
state on that matter. Thus, the question in Coleman as to
the effectiveness of a ratification following a rejection is
reasonably "political" if it is understood that what the
Congress is deciding is not whether the ratification in
truth overturned the state's prior negative stance, clearly a
matter beyond its authority to determine, but rather
whether or not the ratification is within that reasonably
contemporaneous time period so as to correspond with
the other expressions of consent. If the state's rejection
rather
than
ratification
correlates
with
the
contemporaneous time period established by Congress,
then the later ratification which is beyond the reasonably
contemporaneous time period would be ineffective. This
would be the Congress' only grounds for finding a
ratification after a rejection ineffective.
A rescission, on the other hand, brings [**119] into
play a different combination of responses which can best
be understood by the following. In order to have a valid
ratification of a proposed amendment, two elements must
be found: (1) the state's determination of consent, and (2)
the congressional assessment of contemporaneousness.
The various acts of a state in considering a proposed
amendment bring into play various combinations of these
two factors. A rejection indicates the state's lack of
consent and indefinitely bars the operation of Congress'
authority in the adoption process, because clearly there is
nothing for Congress to coordinate with the other
expressions of consent. A state's certification of
ratification expresses the existence of local consent and
engages Congress' power to determine the timing
requirements of a contemporaneous expression of
consent. A rescission of a prior ratification indicates a
reassessment of the state's expression of [*1146]
consent, and by terminating its consent, it suspends the
need for a congressional decision as to the
contemporaneousness of the prior consent. 55 Thus, a
state's action in ratifying after a previous rejection would
bring into play Congress' role of determining [**120]
whether or not the ratification is effective, which by its
very nature takes into consideration factors that are
uniquely political. A rescission, on the other hand,
revokes the state's assent to being included in the
consensus suspending congressional or "political"
inquiry.
55
An obvious reason that the congressional
power to determine contemporaneousness is
suspended is that there is no longer a statement of
consent by the state to be associated with the
other local expressions of consent. Also, it is
eminently clear that Congress cannot nullify a
state's rescission under the powers it is given by
article V. Looking at the essential question
Congress must consider in exercising its article V
authority of determining a contemporaneous
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consensus, it is evident that to nullify a state's
action on an amendment, Congress must
determine that the basic socia/economic, political
milieu has so changed that the state's action
cannot be said to relate with the other expressions
of consent. Such a determination, however, would
mean that the amendment is no longer viable, thus
terminating all states' actions with regard to the
amendment.
[**121]
If the question of the effectiveness of a ratification
after a rejection and the effect of a rescission on a prior
ratification are treated similarly as "political questions," it
would, in effect, mean that Congress would have control
over ultimately assessing whether or not there is
continued local consent. For example, if Congress could
refuse to recognize a state's rescission, it would mean that
Congress would supplant the expression of the people's
representative with its own assessment of consent by
holding that the prior expression of consent is still valid.
Such a broad interpretation of congressional powers
would destroy the balance created in article V and
remove the state's power to create a barrier to
encroachment by the national government. Therefore,
while it might be conceded that the effectiveness of a
ratification in light of a prior rejection is proper for
resolution by a political arm of government, the question
of the effect of a rescission in light of a prior ratification
does not bring into play the same type of considerations,
and thus, because the questions posed by a rescission are
not proper for consideration by the political branch, they
should be treated [**122] differently.
The application of the prudential consideration
formulation of the "political question" doctrine to the
procedural issues surrounding the problem of the
constitutionality of the congressional extension of the
ratification deadline is also not warranted. Nothing in the
nature of the questions nor in the legislative history of the
extension resolution is present which would convince the
Court that the congressional enactment of the extension
resolution is the type of determination by a political
branch which the courts ought to unquestioningly adhere
to.
From the Court's review of all the ramifications of
the "political question" doctrine, there does not appear to
be any compelling reasons for it to withhold its
jurisdiction with regard to the questions presented.
Furthermore, the Court is persuaded that both the
questions of the efficacy of a rescission and the proper
procedure for establishing a time period for ratification
are the type of questions that must be interpreted with the
kind of consistency that is characteristic of judicial rather
than political decision making. Whatever the outcome of
these questions as they relate to the powers vested by
article V, they [**123] must be interpreted consistently
for each amendment that may be proposed. The Court
will now turn to a consideration of how these questions
should be resolved.
D. Rescission
In addressing the question of whether or not a
rescission of a prior ratification is a proper exercise of the
state's authority under article V to act on proposed
amendments, it must be noted that whatever authority the
states have is derived solely [*1147] from the
Constitution itself. 56 The critical portion of article V that
the Court must examine provides that an amendment
becomes part of the Constitution "when ratified by the
Legislatures of three-fourths of the several States, or by
Conventions ...." With reference to the phrase "when
ratified", commentators 57 and courts have explored a
variety of interpretations to what can best be termed
"subsequent acts," i.e., the subsequent act of ratifying
after a rejection or rescinding after a ratification. Three
separate approaches have been postulated which are
important to review in this Court's consideration of the
question of the state's power to rescind.
56 See footnote 21, supra.
[**124]
57
See generally Orfield, supra, note 30 at
70-73 and the accompanying authority.
The first approach to be considered contends that
whatever action is initially taken by the state, whether
rejection or ratification, exhausts the state's power under
article V making any subsequent act to reverse the prior
action a nullity. This approach was argued in Wise v.
Chandler, 270 Ky. 1, 108 S.W.2d 1024 (1937) before the
highest state court of Kentucky and was defended on the
grounds that the power of a state legislature to ratify
cannot be any greater than its alternative, the state
convention. Since a convention exhausts its authority by
its initial action, whatever that action may be, it would be
consistent to view a legislature as having only the same
amount of authority. Advocates of this position also
argue that treating both acceptance and rejection as
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conclusive would lend a consistency and concreteness to
the system which would benefit an already difficult
process. Furthermore, this approach would arguably be
consistent with the notion that when a state acts under its
power to ratify, it is [**125] not legislating but
exercising a ministerial or constituent function. The
Chandler case was appealed to the Supreme Court and
the Court granted certiorari but dismissed the case
because it determined that the issues presented were
moot. Therefore, the Court did not approve or disapprove
this approach. 58
58 It can be persuasively argued that the court's
ruling in Coleman v. Miller, 307 U.S. 433, 59 S.
Ct. 972, 83 L. Ed. 1385 (1939) effectively does
away with the one-shot approach by at least
tacitly indicating that a state might be able to
ratify after a prior rejection.
The second approach postulated would condone only
the act of ratification, and the negative expressions of
rejection or rescission would be treated as a nullity. This
approach was relied upon by the State Supreme Court of
Kansas in adjudicating the issues in Coleman v. Miller,
146 Kan. 390, 71 P.2d 518 (1937). This approach is
premised on a literal reading of article V which speaks
only of ratification. The argument follows that because
[**126] the article does not confer upon the states the
specific power to reject or rescind, but only to ratify, any
of these negative acts cannot be recognized. Advocates of
this position argue that greater efficiency would be given
to the amendment process and lead to less confusion in
that only positive acts would be counted towards final
ratification. The United States Supreme Court had an
opportunity to consider this approach when it reviewed
the decision of the Kansas court. From the Supreme
Court's opinion in the Coleman matter it appears that this
approach found little approval. In the "Opinion of the
Court" Justice Hughes wrote that they found "no reason
for disturbing the decision of the Supreme Court of
Kansas ... its judgment is affirmed but upon the grounds
stated in this opinion." Coleman, 307 U.S. at 456, 59 S.
Ct. at 983 (emphasis added). Thus they rejected the
approach of the Kansas court and chose to base their
decision on other criteria.
A third approach which has received support is that
both the subsequent acts of ratification after a rejection
and rescission after ratification should be recognized. Of
course, one clear limitation is evident which is that any
subsequent [**127] rescission after a prior ratification
could not come after three-fourths of the states had
ratified, for at that point the amendment automatically
becomes part of the Constitution and a [*1148] state
cannot withdraw its consent thereafter. This approach is
grounded on the argument that it is illogical to impute
more finality to ratification than to rejection, especially
since the act of ratification itself has no binding effect
until concurred in by the requisite three-fourths majority.
Furthermore, this view is justified on the grounds that not
allowing a withdrawal of approval might make an
overly-cautious legislature hesitant to act, or bind an
overly-zealous legislature to a position which upon
mature reflection it does not support.
From the approaches outlined above, in order to
decide which should be controlling in the Court's
determination of the validity of a state's rescission in light
of its powers under article V, it is necessary to understand
what a state is doing when it acts on a proposed
amendment. First, it must be observed that the drafters of
the Constitution considered it important that the power to
change the Constitution must in some respect draw on
that [**128] same power which is the source of the
original authority of the Constitution-"the consent of the
people." The structure of article V indicates that it is the
state that must ascertain the existence of local consent
and reflect that sentiment when acting on an amendment.
"(W)hen ... (the requisite three fourths of the States are)
united in the desire of a particular amendment, that
amendment must infallibly take place." Federalist Paper #
85 (Hamilton). All of the cases which have considered
article V have reaffirmed the vision of the founding
fathers that the essential democratic value of the will of
the people be inextricably linked with the state's action in
considering ratification. For example, the Court in Hawke
v. Smith, No. 1, 253 U.S. 221, 40 S. Ct. 495, 64 L. Ed.
871 (1920), indicated that the role of ratification given to
the states called for "action by deliberative assemblages
representative of the people, which it was assumed would
voice the will of the people." Id. at 227, 40 S. Ct. at 497.
The court went on to say that "ratification by a State of a
constitutional amendment is not an act of legislation
within the proper sense of the word. It is but the
expression of the [**129] assent of the State to a
proposed amendment." Id. at 229, 40 S. Ct. at 498. The
court in Dillon v. Gloss, supra, gave the state's role in the
ratification process a far more careful examination. They
wrote:
Thus the people of the United States, by
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whom the Constitution was ordained and
established, have made it a condition to
amending that instrument that the
amendment be submitted to representative
assemblies in the several States and be
ratified in three-fourths of them. The plain
meaning of this is (a) that all amendments
must have the sanction of the people of the
United States, the original fountain of
power, acting through representative
assemblies, and (b) that ratification by
these assemblies in three-fourths of the
States shall be taken as a decisive
expression of the people's will and be
binding on all.
irrevocable or where a rejection can be changed by a
ratification, but not permit rescission, would permit an
amendment to be ratified by a technicality-where clearly
one is not intended-and not because there is really a
considered consensus supporting the amendment which is
the avowed purpose of the amendment procedure.
Furthermore, an irrevocable ratification prior to the time
that three-fourths have acted would completely
disassociate the democratic notion of a considered
consensus from the ratification procedure and create the
very real possibility that an amendment could become
part of the Constitution when the people have not been
unified in their consent.
Id. 256 U.S. at 374, 41 S. Ct. at 512 (emphasis
added).
The only apparent criticism of the approach which
would recognize a rescission after a ratification is that to
allow a change after a ratification would create confusion
and uncertainty and essentially paralyze the process. This
objection has little merit when it is realized that all
Congress or its designate must do is count the state's most
recent official certification to determine whether or not
three-fourths have ratified. In addition a brief review of
amendatory history reveals that as a standard practice,
questions regarding ratifications have usually been
viewed in favor of disqualification and have caused little,
if any, confusion. For example, in the process of ratifying
the twelfth amendment, a question arose as to the validity
of New Hampshire's ratification. 61 If New Hampshire's
ratification would have been considered valid, they would
have been the last state necessary for a three-fourths
majority. Rather than proclaim the amendment part of the
Constitution, the national government waited until
another state ratified thus obviating the need for a
resolution of the question. In the promulgation of the
fifteenth amendment, two states changed their votes. 62
Resolutions [**132] were offered in Congress to resolve
the questions of validity but the measures were buried in
committee. The Secretary of State, who had the
responsibility of counting the states' ratifications,
withheld proclaiming the amendment part of the
Constitution until sufficient votes were received so that a
declaration could be made without the need of counting
the disputed ratifications. A similar approach was taken
in the nineteenth amendment. Again, two states changed
their votes and again additional votes were accumulated
in order to promulgate the amendment. 63 Thus,
uniformly where ratifications have been rescinded, the
Thus, the essence of a state's role in considering an
amendment is to act as the mechanism whereby the will
of the people is expressed. 59
59
It could be argued that if true democratic
consensus is the goal of the amendment process
then the people should act directly on an
amendment by way of referendum. But the courts
have directly addressed this question and
indicated that while a consensus of the people is
the goal of the amendment process, article V
speaks only of state legislatures or state
conventions. Thus it is only through the media of
one of these state entities that the will of the
people can be expressed. Kimble v. Swackhamer,
439 U.S. 1385, 99 S. Ct. 51, 58 L. Ed. 2d 225
(1978); Hawke v. Smith, No. 1, 253 U.S. 221, 40
S. Ct. 495, 64 L. Ed. 871 (1920): cf. Trombetta v.
State of Florida, 353 F. Supp. 575
(M.D.Fla.1973).
[**130]
Considering that an amendment cannot become part
of the Constitution until a proper consensus of the people
has been reached and it is the exclusive role of the states
to determine what the local sentiment is, it logically
follows that the subsequent act of rescission would
promote the democratic ideal by giving a truer picture of
the people's will as of the time three-fourths [*1149] of
the states have acted in affirming the amendment. 60 To
allow a situation where either the first act of a state is
60
[**131]
Orfield, supra, note 30 at 72.
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rescissions have been dignified by the national
government by waiting and collecting additional
ratifications to offset them. Parenthetically, no great
confusion has been manifest.
61
The question that arose was regarding the
actions of the Governor of New Hampshire in
vetoing the resolution of that state's legislature to
ratify the proposed amendment. Myers, The
Process
of
Constitutional
Amendment,
Sen.Doc.No.314, 76th Cong., 3d. Sess. 34 (1940).
62 See discussion p. 1144, supra.
[**133]
63
Leser v. Garnett, 258 U.S. 130, 42 S. Ct.
217, 66 L. Ed. 505 (1922), dealt with a challenge
to the nineteenth amendment. The court wrote:
The remaining contention is that the ratifying
resolutions of Tennessee and of West Virginia are
inoperative, because adopted in violation of the
rules of legislative procedure prevailing in the
respective States. The question raised may have
been rendered immaterial by the fact that since the
proclamation the legislatures of two other
States-Connecticut and Vermont-have adopted
resolutions of ratification.
Id. at 137, 42 S. Ct. at 218.
It seems clear from the statements of the founding
fathers and from most courts in considering the
amendment process that a ratification is linked to that
great wellspring of legitimate constitutional power-the
will of the people. The founding fathers were careful to
make sure the Constitution was ratified by the consent of
the people, and it follows that any amendment must again
draw from that wellspring by securing a
contemporaneous consensus before it can become a part
of that original document. [*1150] The states [**134]
are the entity embodied with the power to speak for the
people during the period in which the amendment is
pending. To make a state's ratification binding with no
right to rescind would give ratification a technical
significance which would be clearly inappropriate
considering that the Constitution through article V gives
technical significance to a state's ratification at only one
time-when three-fourths of the states have acted to ratify.
Until the technical three-fourths has been reached, a
rescission of a prior ratification is clearly a proper
exercise of a state's power granted by the article V phrase
"when ratified" especially when that act would give a
truer picture of local sentiment regarding the proposed
amendment.
Recognizing the validity of a state's power to rescind
its prior ratification, the defendant challenges Idaho's
rescission resolution arguing that it is procedurally faulty.
Defendant maintains that in passing the House
Concurrent Resolution 10, Idaho violated its own rules by
adopting the resolution by less than the two-thirds
majority used to ratify. Without elucidating on the
defendant's contentions, the Court would indicate that
under the holding of Dyer v. [**135] Blair, supra, the
"State legislatures ... have the power and the discretion to
determine for themselves how they should discharge the
responsibilities committed to them by the federal
government.... Moreover ... there is no federal objection
to the state legislatures' independent determination of
their own voting requirements." Id. at 1307. Thus, the
states have complete discretion over the procedural
requirements regarding the requisite majorities to act
under its article V powers. This would be true whether
the state is exercising its affirmative power of ratification
or the negative function of rescission. Furthermore, once
the state legislature has forwarded an official certificate
of their action to Congress the notice is conclusive upon
it and the courts as to both the truthfulness of the
statements it contains and the propriety of the procedure
by which it was promulgated. United States ex rel.
Widenmann v. Colby, 49 App. D.C. 358, 265 F. 998
(D.C.Ct. of App.1920); 64 Leser v. Garnett, 258 U.S. 130,
137, 42 S. Ct. 217, 218, 66 L. Ed. 505 (1922); 65
Chandler v. Wise, 307 U.S. 474, 59 S. Ct. 992, 83 L. Ed.
1407 (1939). Therefore, at this juncture it is not proper
for the Court [**136] to review the procedure of the
rescission resolution since proper certification has been
made by the state to the national government.
64
As was indicated in United States ex rel.
Widenmann v. Colby, 49 App. D.C. 358, 265 F.
998 (D.C.Ct. of App.1920) official notification
received under 1 U.S.C. § 106(b) (then Section
205 of the Revised Statutes of the United States)
is conclusive.
It will be observed that by this section is (sic)
was the duty of the Acting Secretary of State
(now the Administrator of GSA), upon receiving
official notice from three-fourths of the several
states (Constitution, art. 5 (sic)) that the proposed
amendment had been adopted, to issue his
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proclamation. He was not required, or authorized,
to investigate and determine whether or not the
notices stated the truth. To accept them as doing
so, if in due form, was his duty.
Id. at 999.
65 In Leser v. Garnett, 258 U.S. 130, 42 S. Ct.
217, 66 L. Ed. 505 (1922), the Supreme Court
stated:
As the legislatures of Tennessee and of West
Virginia had power to adopt the resolutions of
ratification, official notice to the Secretary, duly
authenticated, that they had done so was
conclusive upon him.
Id. at 137, 42 S. Ct. at 218.
[**137]
E. Extension
The question of whether it is a proper exercise of
congressional authority under article V to alter a
previously proposed time limitation for ratification, and if
so by what majority, presents for the Court a question of
constitutional interpretation of congressional authority,
and an inquiry into the procedural aspects of exercising
that power. Thus, the Court's inquiry is two-fold: First,
does Congress under its power to "propose" the "Mode of
Ratification" have the power to change its proposal once
it has been made and sent to the states; second, if the
initial proposal can be subsequently changed, may
Congress act by less than a two-thirds majority. One
related question [*1151] that has been raised that should
be dealt with at this time is whether or not a state's
ratification resolution specifically acknowledging the
ratification period set by Congress is impaired if the
original time period is extended or whether it is a
"conditional" ratification arguably prohibited by the
amendment process.
To begin with, the actions of Congress in relation to
a proposed amendment must be properly characterized in
order to approach the questions presented. First, it must
[**138] be recognized that Congress' power to
participate in the amendment process stems solely from
article V. As Justice Stevens noted, "the function of a
state Legislature in ratifying a proposed amendment to
the federal Constitution, like the function of Congress in
proposing the amendment, is a federal function derived
from the federal Constitution ...." Dyer v. Blair, 390 F.
Supp. 1291, 1303 (N.D.Ill.1975) (emphasis added). Thus
Congress, outside of the authority granted by article V,
has no power to act with regard to an amendment, i.e., it
does not retain any of its traditional authority vested in it
by article I. The power of Congress to set a time period in
which ratification must be completed is derived from
their function of setting the mode of ratification. See
Dillon v. Gloss, 256 U.S. 368, 376, 41 S. Ct. 510, 513, 65
L. Ed. 994 (1921). The defendant in this action attempts
to create a substance/procedure dichotomy by contending
that since the time restriction in this instance is part of the
proposing resolution it is proper for reconsideration
where if the time period were part of the amendment
itself it would not be. The argument follows that a change
of a substantive aspect [**139] of an amendment is
clearly improper once it has been submitted to the states,
but a change in the proposing resolution, on the other
hand, does not change the essential nature of the
amendment and thus is a matter of detail which Congress
can change at will. The Supreme Court in Dillon v.
Gloss, supra, had an opportunity to address this
substance/procedure dichotomy when the eighteenth
amendment was challenged on the grounds that the
seven-year ratification period called for in Section 3 of
that amendment was unconstitutional. While the Dillon
court indicated that "(a)n examination of article V
discloses that it is intended to invest Congress with a
wide range of power in proposing amendments", Id. at
373, 41 S. Ct. at 512, the court did not recognize the
setting of the time limitation as being a function of
Congress' power to propose amendments but instead
indicated that
(w)hether a definite period for
ratification should be fixed so that all may
know what it is and speculation on what is
a reasonable time may be avoided, is, in
our opinion, a matter of detail which
Congress may determine as an incident of
its power to designate the mode of
ratification.
Id. at 376, 41 [**140] S. Ct. at 513 (emphasis
added).
The court did not recognize a substance/procedure
dichotomy and thus any authority to limit the time period
for consideration must flow from the Congress' power to
set the mode of ratification. Accordingly, the Court's
attention is drawn to a consideration of Congress' power
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to set and change the time period for ratification under its
power to set the mode of ratification.
The United States Supreme Court in United States v.
Sprague, 282 U.S. 716, 51 S. Ct. 220, 75 L. Ed. 640
(1931) recognized that Congress has absolute discretion
within its power to propose the mode of ratification to
establish which of the two local entities will act as the
spokesman for the people. The Supreme Court in the
Dillon and Coleman cases found that as a "subsidiary
matter of detail" to this congressional prerogative,
Congress must also determine whether or not the local
expressions of consent are "sufficiently contemporaneous
in that number of States to reflect the will of the people in
all sections at relatively the same period ...." Dillon 256
U.S. at 375, 41 S. Ct. at 512. In making its determination
that the requisite consensus has been reached in a
sufficiently contemporaneous [**141] period, the
Supreme Court in Coleman, supra, indicated that if no
time restriction is set initially, Congress retains its
authority [*1152] to decide that issue when the requisite
number of states have acted.
Our decision that the Congress has the
power under Article V to fix a reasonable
limit of time for ratification in proposing
an amendment proceeds upon the
assumption that the question, what is a
reasonable time, lies within the
congressional province. If it be deemed
that such a question is an open one when
the limit has not been fixed in advance, we
think that it should also be regarded as an
open one for the consideration of the
Congress when, in the presence of
certified ratifications by three-fourths of
the States, the time arrives for the
promulgation of the adoption of the
amendment. The decision by the
Congress, in its control of the action of the
Secretary of State, of the question whether
the amendment had been adopted within a
reasonable time would not be subject to
review by the courts.
Id. 307 U.S. at 454, 59 S. Ct. at 982. The court in
Dillon further clarified the scope of Congress' power by
indicating that while Congress is not compelled to make
[**142] a determination of a reasonable time period in
advance of the actions of the requisite number of states, it
is not precluded from doing so. The Dillon court held that
Congress may fix a reasonable time in advance "so that
all may know what it is and speculation ... be avoided."
Id. 256 U.S. at 376, 41 S. Ct. at 513. It should be noted
that the Dillon court did not intimate that the setting of a
definite time period was a projection or preliminary
assessment of a reasonable time period which would be
re-evaluated as time passed. Rather, the Court indicated
that the exercise of Congress' power to set a time period
for ratification is one which is intended to infuse certainty
into an area which is inherently vague. Thus the inference
that can be drawn from Dillon and Coleman is that within
Congress' role of determining a reasonably
contemporaneous consensus, or in other words,
determining whether the socio/political, economic forces
giving rise to the amendment remain alive and unchanged
during the period in which the states act in giving their
assent to the proposal, Congress may exercise its function
in one of two ways: first, it can leave the question of a
reasonable time open until [**143] the requisite number
of states have acted and thus continually monitor the
viability of the amendment; second, where it appears to
Congress that the socio/political, economic factors giving
rise to the amendment are such that they are unlikely to
change for an indefinite period of time, and rather than
have the proposed amendment pending perpetually,
Congress can set an arbitrary yet reasonable time period
in order to establish a termination point for consideration
and thus promote prompt action on the amendment by the
states. 66
66 It appears from the legislative history of the
proposed twenty-seventh amendment that the
seven-year time period was well considered and
found necessary to prevent the amendment from
pending for an inordinate period of time. See
S.Rep.No.92-689, 92d Cong., 2d Sess., 1972; 118
Cong.Rec. 9552 (1972).
It, therefore, appears compelling that in order to
fulfill the purposes for fixing a time limitation for
ratification as outlined in Dillon-"so all may know and
speculation ... be [**144] avoided"-the congressional
determination of a reasonable period once made and
proposed to the states cannot be altered. If Congress
determines that a particular amendment requires ongoing
assessment as to its viability or monitoring of the time
period, it can do so, not by defeating the certainty implied
by the Dillon case, but by not setting a time period at the
outset and reserving the question until three-fourths of the
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27 Empl. Prac. Dec. (CCH) P32,352
states have acted.
The Court's conclusion that Congress cannot change
the ratification period once it is set also finds support
from the form in which it is presented to the states. While
the setting of a time period for ratification has been
described as a "subsidiary matter of detail," pursuant to
Congress' power to propose the mode of ratification, if
the Congress chooses to fix a time period by making it
part of its proposal to the states, that determination of a
time period becomes an [*1153] integral part of the
proposed mode of ratification. Once the proposal has
been formulated and sent to the states, the time period
could not be changed any more than the entity designated
to ratify could be changed from the state legislature to a
state convention or [**145] vice versa. Once the
proposal is made, Congress is not at liberty to change it.
In any event, while the general power of Congress to
change its prior proposal may be argued, it is more than
clear that in this instance Congress' promulgation of the
extension resolution was in violation of the constitutional
requirement that Congress act by two-thirds of both
Houses when exercising its article V powers. Since
Congress can act only within the authority given it by
article V, and in none other, when proposing amendments
or the mode of ratification, arguments relating to
acceptable parliamentary order or procedure have little
bearing in determining what voting requirement is
necessary for Congress to alter a proposed time limitation
on ratification. This is because such an argument
presumes Congress is functioning in a legislative capacity
when exercising its powers under article V. To determine
in what manner Congress must act in utilizing its
authority under article V, reference must first be made to
the Constitution itself. If it is silent, then the courts can
leave Congress to decide its own procedural
requirements. See Dyer v. Blair, 390 F. Supp. 1291
(N.D.Ill.1975). Article V grants [**146] Congress only
one power which can be exercised with regard to two
separate considerations. Congress has the power to
"propose." It can "propose" the text of the amendment
and it can "propose" the mode of ratification. When
acting in its function of proposing the amendment itself,
article V has given the term "Congress" a particular
definition. Article V states, "The Congress, whenever two
thirds of both Houses shall deem it necessary, shall
propose Amendments ...." U.S.Const., Art. V (emphasis
added). Within its powers to propose the mode of
ratification, however, no specific reference is made by
what concurrence of both Houses, or even if both Houses
must act, in order for the mode of ratification to be
proposed and sent to the states. Article V only provides
that ratification be "by the legislatures of three fourths of
the several States, or by Conventions in three fourths
thereof, as the one or the other Mode of Ratification may
be proposed by Congress ...." U.S.Const., art. V
(emphasis added). The defendant argues that this failure
of the drafters to designate by what majority the power to
propose the mode of ratification indicates that it should
be left to Congress to set its [**147] own procedure. But
this argument overlooks the fact that the word "Congress"
has been specifically defined earlier in the same sentence.
Rather than give the word "Congress" two different
meanings within the same provision, it seems more
logical to give it a consistent interpretation throughout.
This conclusion seems even more reasonable when it is
considered that what is being dealt with is the same
power-the congressional power to "propose."
One final observation. Reviewing several of the most
recent resolutions proposing amendments to the
Constitution and referring particularly to the resolution
proposing the Equal Rights Amendment, the mode of
ratification has been proposed by the approval of
two-thirds of both Houses of Congress, thus indicating by
general practice that this is the appropriate measure of
approval.
Therefore, the Court is persuaded that the
congressional act of extending the time period for
ratification was an improper exercise of Congress'
authority under article V. While Congress is not required
to set a time period in advance of the requisite number of
states acting to ratify, if it chooses to do so to remove
uncertainty regarding the question, it cannot thereafter
[**148] remove that certainty by changing the time
period. In addition, since it is clear that Congress must act
by a two-thirds concurrence of both Houses when acting
pursuant to its authority under article V, and because the
extension resolution was enacted by only a simple
majority, the extension resolution is an unconstitutional
exercise of congressional authority under article V.
[*1154] Since the Court has determined that the
enactment of the extension resolution was an ultra vires
act, and thus unconstitutional, the question of the effect
of the extension on a state's alleged "conditional"
ratification is one that the Court does not need to address.
However, the Court would point out the irony of the
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529 F. Supp. 1107, *1154; 1981 U.S. Dist. LEXIS 16518, **148;
27 Empl. Prac. Dec. (CCH) P32,352
defendant's position in arguing that a state cannot
condition its ratification and then contend that the
condition can be purged from the ratification leaving the
state's adoption of the amendment intact. If the defendant
truly maintains that a ratification cannot be conditioned,
then it would seem consistent that conditional ratification
must be considered a nullity. If a state has acted
improperly in exercising its ratification powers, only the
states can cure the impropriety and [**149] neither
Congress nor the courts can exorcise the statements of
condition from the ratification. It must either succeed or
fail as it is enacted.
F. Mandatory Injunction
To begin with, several observations are appropriate.
First, the relief the plaintiffs seek is a mandatory
injunction. 67 Relief in the form of mandamus, it is
conceded, is not appropriate in this action. Second, it is
well settled that the injunction remedy is a power given
the courts under their equitable jurisdiction. Thus the
courts' granting or denying of an injunction in a particular
case is governed by those fundamental and established
principles by which courts of equity are guided and
influenced in their judicial action and in administration of
relief. Singleton v. Anson County Board of Education,
283 F. Supp. 895 (W.D.N.C.1968). It is also clear that a
mandatory injunction is viewed as an exceptional remedy
and thus not regarded with judicial favor. Black v.
Jackson, 177 U.S. 349, 20 S. Ct. 648, 44 L. Ed. 801
(1900); Singleton v. Anson County Board of Education,
supra. If the Court finds that its application is called for,
it should be used with caution and only in cases of great
necessity. Id.
67
[**150]
See plaintiffs' complaint pp. 42-47.
From the rulings that this Court has made on the
questions of the validity of Idaho's rescission and the
constitutionality of the extension, it appears that these
declarations alone are enough to settle all disputes
between the parties. Since the Court has found the
rescission of Idaho's prior ratification to be valid and the
congressional act of extension unconstitutional, little
would be served in granting the plaintiffs' request for an
order directing the Administrator of the General Services
to return Idaho's ratification papers, and barring him from
accepting further ratifications. Therefore, the Court will
deny the plaintiffs' request for this extraordinary relief.
In summary, the Idaho plaintiffs have standing to
bring this action. The matter is ripe for determination and
the Court has jurisdiction and properly should determine
the issues presented.
The clear purpose of article V of the United States
Constitution is to provide that an amendment properly
proposed by Congress should become effective when
three-fourths of the states, at the same time and within a
contemporaneous period, approve the amendment by
ratification through their state legislatures.
To allow an amendment [**151] to become
effective at any time without the contemporaneous
approval of three-fourths of the states would be a clear
violation of article V of the Constitution. It follows,
therefore, that a rescission of a prior ratification must be
recognized if it occurs prior to unrescinded ratification by
three-fourths of the states. Congress has no power to
determine the validity or invalidity of a properly certified
ratification or rescission.
Congress, when acting as an amending body under
article V, may, by two-thirds vote of both Houses,
propose an amendment and the mode of ratification.
Congress has no power to propose either an amendment
or a mode of ratification except by a two-thirds vote of
both Houses.
[*1155] As part of the mode of ratification,
Congress may by a two-thirds vote of both Houses set a
reasonable time limit for the states to act in order for the
ratification to be effective. When this time is set, it is
binding on Congress and the states and it cannot be
changed by Congress thereafter.
Accordingly, the Court declares that Idaho's
rescission of its ratification of the twenty-seventh
amendment effectively nullified its prior ratification and
Idaho may not be counted [**152] as a ratifying state.
The same is true for any other state which has properly
certified its action of rescission to the Administrator of
the General Services.
The Court further declares that the majority action of
Congress in attempting to extend the period for
ratification of the twenty-seventh amendment is void and
of no effect.
In view of the Court's declarations, it appears that the
injunctive relief sought by plaintiffs is unnecessary and
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529 F. Supp. 1107, *1155; 1981 U.S. Dist. LEXIS 16518, **152;
27 Empl. Prac. Dec. (CCH) P32,352
the same is denied.
ORDER
This matter having come on before the Court and the
Court having heard the arguments of counsel and the
matter having been submitted on the briefs, and the Court
being fully advised in the premises and having filed its
memorandum decision herein;
NOW, THEREFORE, IT IS ORDERED that the
defendant's and defendant-intervenors' motion to dismiss
or in the alternative for summary judgment be, and the
same is hereby, DENIED.
IT IS FURTHER ORDERED, and the Court finds,
that the plaintiffs' request for declaratory judgment
should be GRANTED, and the Court declares that a state
has the power and right to rescind a prior ratification of a
proposed constitutional amendment at any time prior to
the unrescinded ratification [**153] by three-fourths of
the states of the United States properly certified to the
General Services Administration; and declares that the
ratification by Idaho of the twenty-seventh amendment
was properly rescinded and such prior ratification is void,
as is the ratification of any other state that has properly
rescinded its ratification. The Court further declares that
Congress' attempted extension of the time for the
ratification of the twenty-seventh amendment was null
and void.
IT IS FURTHER ORDERED that in light of the
Court's declarations, it finds it unnecessary to grant the
plaintiffs' requested injunctive relief and therefore will
deny the same.
Copyright 2016 SHEPARD'S(R) - 37 Citing references
Idaho v. Freeman, 529 F. Supp. 1107, 1981 U.S. Dist. LEXIS 16518, 27 Empl. Prac. Dec. (CCH) P32352 (D.
Idaho 1981)
Restrictions: Unrestricted
FOCUS(TM) Terms: No FOCUS terms
Print Format: FULL
Citing Ref. Signal Legend:
{Warning} -- Negative treatment is indicated
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{Cited} -- Citation information available
SHEPARD'S SUMMARY
Unrestricted Shepard's Summary
CBA115
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SHEPARD'S® - 529 F. Supp. 1107 - 37 Citing References
27 Empl. Prac. Dec. (CCH) P32,352
Subsequent appellate
history contains negative
analysis.
Citing References:
Citing Decisions:
Citing decisions with no analysis assigned (3)
Other Sources:
Law Reviews (29), Statutes (1), Treatises (1), Court Documents (2)
LexisNexis Headnotes:
HN5 (1), HN45 (1)
PRIOR HISTORY ( 0 citing references )
(CITATION YOU ENTERED):
Idaho v. Freeman, 529 F. Supp. 1107, 1981 U.S. Dist. LEXIS 16518, 27 Empl. Prac. Dec. (CCH) P32352
(D. Idaho 1981)
SUBSEQUENT APPELLATE HISTORY ( 1 citing reference )
1.
Vacated by:
NOW, Inc. v. Idaho, 459 U.S. 809, 103 S. Ct. 22, 74 L. Ed. 2d 39, 1982 U.S. LEXIS 3006, 51 U.S.L.W.
3251, 30 Empl. Prac. Dec. (CCH) P33063 (1982)
CITING DECISIONS ( 3 citing decisions )
9TH CIRCUIT - COURT OF APPEALS
2.
Cited by:
United States v. Stahl, 792 F.2d 1438, 1986 U.S. App. LEXIS 26605, 58 A.F.T.R.2d (RIA) 5315, 86-2 U.S.
Tax Cas. (CCH) P9518 (9th Cir. Mont. 1986)
LexisNexis Headnotes HN45
CALIFORNIA SUPREME COURT
3.
Cited by:
American Federation of Labor v. Eu, 36 Cal. 3d 687, 206 Cal. Rptr. 89, 686 P.2d 609, 1984 Cal. LEXIS 210
(1984)
36 Cal. 3d 687 p.698
206 Cal. Rptr. 89 p.96
686 P.2d 609 p.616
IDAHO SUPREME COURT
4.
Cited by:
Mead v. Arnell, 117 Idaho 660, 791 P.2d 410, 1990 Ida. LEXIS 34 (Idaho 1990)
LexisNexis
Headnotes HN5
117 Idaho 660 p.672
CBA116
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SHEPARD'S® - 529 F. Supp. 1107 - 37 Citing References
27 Empl. Prac. Dec. (CCH) P32,352
791 P.2d 410 p.422
ANNOTATED STATUTES ( 1 Citing Statute )
5.
1 U.S.C. sec. 106b
LAW REVIEWS AND PERIODICALS ( 29 Citing References )
6.
ESSAY AND ARTICLE CELEBRATING THE 50TH ANNIVERSARY OF THE ARIZONA LAW REVIEW:
Beyond the Supermajority: Post-Adoption Ratification of the Equality Amendments, 50 Ariz. L. Rev. 25
(2008)
50 Ariz. L. Rev. 25 p.25
7.
NOTE: KEEP 'EM SEPARATED: ARTICLE I, ARTICLE V, AND CONGRESS'S LIMITED AND DEFINED
ROLE IN THE PROCESS OF AMENDING THE CONSTITUTION, 113 Colum. L. Rev. 1051 (2013)
113 Colum. L. Rev. 1051 p.1051
8.
ARTICLE: NECROMANCING THE EQUAL RIGHTS AMENDMENT, 17 Const. Commentary 593 (2000)
9.
ARTICLE: THE SLEEPER WAKES: THE HISTORY AND LEGACY OF THE TWENTY-SEVENTH AMENDMENT., 61 Fordham L. Rev. 497 (1992)
10.
Is the Twenty-Seventh Amendment 200 Years Too Late?, 62 Geo. Wash. L. Rev. 502 (1994)
11.
ARTICLE: Partisan Rhetoric, Constitutional Reality, and Political Responsibility: The Troubling Constitutional Consequences of Achieving D.C. Statehood by Simple Legislation., 60 Geo. Wash. L. Rev. 475 (1992)
12.
BOOK REVIEW: STATESMANSHIP: A REVIEW OF CONSTITUTIONAL BRINKSMANSHIP: AMENDING
THE CONSTITUTION BY NATIONAL CONVENTION by Russell Caplan. *, 58 Geo. Wash. L. Rev. 802
(1990)
13.
COMMENT: A CONSTITUTION WE ARE AMENDING: IN DEFENSE OF A RESTRAINED JUDICIAL
ROLE, 97 Harv. L. Rev. 433 (1983)
97 Harv. L. Rev. 433 p.433
14.
ARTICLE: THE LEGITIMACY OF CONSTITUTIONAL CHANGE: RETHINKING THE AMENDMENT
PROCESS, 97 Harv. L. Rev. 386 (1983)
97 Harv. L. Rev. 386 p.393
15.
ARTICLE: POLITICAL QUESTION DOCTRINE AND ALLOCATION OF THE FOREIGN AFFAIRS
POWER., 13 Hofstra L. Rev. 215 (1985)
16.
ARTICLE: POLITICAL QUESTION DOCTRINE AND ALLOCATION OF THE FOREIGN AFFAIRS
POWER., 13 Hofstra L. Rev. 215 (1985)
17.
ARTICLE: Unamendments, 90 Iowa L. Rev. 1747 (2005)
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27 Empl. Prac. Dec. (CCH) P32,352
90 Iowa L. Rev. 1747 p.1747
18.
NOTE: Note: The Need for a General Time Limit on Ratification of Proposed Constitutional Amendments,
16 J. L. & Politics 663 (2000)
19.
45 Law & Contemp. Probs. 4 283
45 Law & Contemp. Probs. 4 283 p.299
20.
ARTICLE: CONGRESSIONAL STANDING TO SUE: WHOSE VOTE IS THIS, ANYWAY?, 62 Notre Dame
L. Rev. 1 (1986)
21.
ARTICLE: John B. Anderson: The Exemplary Dark Horse ++ The information about John B. Anderson is
the result of the Shepard Broad Law Center supporting a project on oral history and law. A team comprised
of Law Professors, Olympia Duhart and Charlene L. Smith; Deborah McGovern, who was head of Emerging
Technologies, Reference and Instructional Services Librarian; Chad Moulder and Ray Andrade, who a, 34
Nova L. Rev. 347 (2010)
34 Nova L. Rev. 347 p.347
22.
INTERPRETATION SYMPOSIUM: PHILOSOPHY OF LANGUAGE AND LEGAL INTERPRETATION:
ARTICLE: EASY CASES., 58 S. Cal. L. Rev. 399 (1985)
23.
ARTICLE: PROPOSING CONSTITUTIONAL AMENDMENTS BY CONVENTION: RULES GOVERNING
THE PROCESS, 78 Tenn. L. Rev. 693 (2011)
78 Tenn. L. Rev. 693 p.693
24.
ARTICLE: WHY CONSTITUTIONAL LAWYERS AND HISTORIANS SHOULD TAKE A FRESH LOOK AT
THE EMERGENCE OF THE CONSTITUTION FROM THE CONFEDERATION PERIOD: THE CASE OF
THE DRAFTING OF THE ARTICLES OF CONFEDERATION, 60 Tenn. L. Rev. 783 (1993)
25.
ARTICLE: The Stealth Amendment: The Impending Ratification and Repeal of a Federal Budget
Amendment, 35 Tulsa L.J. 353 (2000)
26.
ARTICLE: The Stealth Amendment: The Impending Ratification and Repeal of a Federal Budget
Amendment, 35 Tulsa L.J. 353 (2000)
27.
35 Tulsa L.J. 353, 35 Tulsa L.J. 353
35 Tulsa L.J. 353 p.353
28.
COMMENT: Why Time Limits on the Ratification of Constitutional Amendments Violate Article V, 66 U.
Chi. L. Rev. 437 (1999)
29.
IRA C. ROTHGERBER, JR. CONFERENCE ON CONSTITUTIONAL LAW: GUARANTEEING A REPUBLICAN FORM OF GOVERNMENT: CASES UNDER THE GUARANTEE CLAUSE SHOULD BE JUSTICIABLE., 65 U. Colo. L. Rev. 849 (1994)
30.
ARTICLE: IMBALANCE OF POWERS: CAN CONGRESSIONAL LAWSUITS SERVE AS COUNTER-
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27 Empl. Prac. Dec. (CCH) P32,352
WEIGHT?, 54 U. Pitt. L. Rev. 63 (1992)
31.
ARTICLE: RATIFYING THE FOURTEENTH AMENDMENT IN OHIO, 28 W. New Eng. L. Rev. 179 (2006)
32.
ARTICLE: THE EQUAL RIGHTS AMENDMENT: WHY THE ERA REMAINS LEGALLY VIABLE AND
PROPERLY BEFORE THE STATES *, 3 Wm. & Mary J. of Women & L. 113 (1997)
33.
ARTICLE: A General Theory of Article V: The Constitutional Lessons of the Twenty-seventh Amendment.,
103 Yale L.J. 677 (1993)
103 Yale L.J. 677 p.726
34.
NOTE: Executive Discretion and the Congressional Defense of Statutes, 92 Yale L.J. 970 (1983)
TREATISE CITATIONS ( 1 Citing Source )
35.
15-101 Moore's Federal Practice - Civil @ 101.117
BRIEFS ( 2 Citing Briefs )
36.
LaVergne v. Bryson, 2012 U.S. Briefs 778, 2012 U.S. S. Ct. Briefs LEXIS 5427 (U.S. Dec. 19, 2012)
37.
UNITED STATES OF AMERICA, Petitioner, v. COMMONWEALTH OF VIRGINIA, Respondent., 1994 U.S.
Briefs 1941, 1995 U.S. S. Ct. Briefs LEXIS 646 (U.S. Dec. 15, 1995)
CBA119
The Proposed Equal Rights Amendment:
Contemporary Ratification Issues
Thomas H. Neale
Specialist in American National Government
May 9, 2013
Congressional Research Service
7-5700
www.crs.gov
R42979
CRS Report for Congress
Prepared for Members and Committees of Congress
CBA120
The Proposed Equal Rights Amendment: Contemporary Ratification Issues
Summary
The year 2012 marked the 30th anniversary of the expiration of the proposed Equal Rights
Amendment’s extended ratification deadline. Since that time, new analyses have emerged that
bear on the question of whether the amendment proposed in 1972 remains constitutionally viable.
This report examines the legislative history of an Equal Rights Amendment (ERA) and both
identifies and provides an analysis of contemporary factors that may bear on its present and future
viability.
An Equal Rights Amendment was first introduced in Congress in 1923. After 49 years of effort by
supporters, an amendment declaring that “equality of rights under the law shall not be denied or
abridged by the United States or any State on account of sex” was proposed by Congress for
ratification by the states in 1972. This amendment will be referred to hereinafter as “the proposed
Equal Rights Amendment,” or “the proposed ERA.” Article V of the Constitution requires that
three-fourths of the states, 38 at present, must ratify an amendment before it becomes part of the
Constitution. In addition to this requirement, Congress has added a seven-year ratification
deadline to the 18th, 20th, and all subsequent amendments. In the proposed ERA, the deadline was
included in the preamble to the authorizing resolution, rather than in the body of the amendment.
As originally proposed, the amendment would have expired in 1979 if not ratified by 38 states.
Although the proposed ERA was eventually approved by 35 states, controversy and opposition
combined with other issues to bring the ratification process to a halt as the deadline approached.
In 1978, Congress voted to extend the deadline until June 30, 1982. Opponents claimed the
extension violated the spirit, if not the letter of the amendment process, but supporters insisted the
amendment needed more time for state consideration, and that the deadline, as noted previously,
was placed not in the amendment, but in the preamble to the authorizing resolution.
Notwithstanding the action of Congress, no further states ratified the proposed Equal Rights
Amendment during the extension period, and it was presumed to have expired in 1982. During
the same period, the legislatures of five states passed resolutions rescinding their earlier
ratifications, a process referred to as rescission. The Supreme Court had agreed to hear cases on
the rescission question, but the proposed ERA expired before they could be heard, and the High
Court dismissed the cases as moot.
In recent years, proponents of the proposed Equal Rights Amendment have asserted that Congress
possesses both the authority to repeal the original ratification time limit and its 1978 extension of
that limit, and to restart the clock on ratification at the current level of 35 states, without a time
limit. Thus, they contend that only three additional state ratifications would be necessary at any
time in the future for the proposed ERA to be adopted as an amendment to the Constitution. This
has been referred to as the “three state” approach. Joint resolutions to repeal the deadline and
reopen the ratification process were introduced in the Senate and House of Representatives during
the 112th Congress. Although no action was taken beyond routine committee referral, new
versions of these measures may be introduced in the 113th Congress.
In support of their arguments, ERA proponents claim that Article V of the Constitution gives
Congress uniquely broad authority over the amendment process. They also point to Supreme
Court decisions, Dillon v. Gloss and Coleman V. Miller, that they claim provide support for this
assertion. In addition, they cite the example of the 27th Amendment, also known as the “Madison
Amendment,” which was ratified in 1992, after having been pending for 203 years. This, they
maintain, further supports their assertion that proposed amendments that do not include time
Congressional Research Service
CBA121
The Proposed Equal Rights Amendment: Contemporary Ratification Issues
limits within the body of the amendment text itself, remain viable and eligible for ratification
indefinitely.
Opponents of further extension may argue that attempting to revive the amendment would be
politically divisive, and that providing the proposed ERA with a “third bite of the apple” would
be contrary to the spirit and perhaps the letter of Article V and the intentions of Congress in
setting the earlier limits. They would arguably reject the example of the 27th Amendment, which,
unlike the proposed ERA, never had a ratification time limit. Further, they might claim that
efforts to revive the proposed Equal Rights Amendment ignore the possibility that state
ratifications may have expired with the proposed ERA in 1982, and that proponents of the
amendment do not address the issue of state rescission, which has never been specifically
addressed by any U.S. court, but only dismissed by the Supreme Court because the cases accepted
on appeal had become moot.
The “fresh start approach” provides an alternative means to revive the Equal Rights Amendment.
It consists of starting over by introducing a new equal rights amendment, identical to, but distinct
from the 1972 proposal. S.J. Res, 10, introduced by Senator Robert Menendez in the 113th
Congress, falls into this category.
These are some of the issues that could come before Congress should legislation repealing the
earlier deadlines assigned to the proposed Equal Rights Amendment be given active consideration
in the future, or should Congress seek to accede to additional ratifications without consideration
of the expired deadlines in the congressional resolutions.
Congressional Research Service
CBA122
The Proposed Equal Rights Amendment: Contemporary Ratification Issues
Contents
Introduction...................................................................................................................................... 1
An Equal Rights Amendment: Legislative and Ratification History ............................................... 1
Five Decades of Effort: Building Support for an Equal Rights Amendment in
Congress, 1923-1970 .............................................................................................................. 2
Congress Approves and Proposes the Equal Rights Amendment, 1970-1972 .......................... 4
First Vote in the House, 91st Congress—1970 ..................................................................... 5
Passage and Proposal by Congress, 92nd Congress—1971-1972 ........................................ 6
Congress Sets a Seven-Year Ratification Deadline ............................................................. 8
Ratification Efforts in the States ................................................................................................ 9
Ratification Is Extended in 1978, but Expires in 1982 .............................................................. 9
Rescission: A Legal Challenge to the Ratification Process ..................................................... 10
Renewed Legislative and Constitutional Proposals, 1982 to the Present ...................................... 11
“Fresh Start” Proposals............................................................................................................ 11
112th and 113th Congresses: Proposed “Fresh Start” Amendments ................................... 12
“Three-State” Proposals .......................................................................................................... 12
112th and 113th Congresses: “Three-State” and Related Legislative Proposals ................. 12
Contemporary Viability of the Equal Rights Amendment ............................................................. 14
Article V: Congressional Authority over the Amendment Process.......................................... 14
The Madison Amendment (the 27th Amendment): A Dormant Proposal Revived and
Ratified ................................................................................................................................. 16
Ratification of the Madison Amendment: A Model for the Proposed Equal Rights
Amendment? ........................................................................................................................ 18
The Role of the Supreme Court Decisions in Dillon v. Gloss and Coleman v. Miller ............. 20
Ancillary Issues ....................................................................................................................... 22
Origins of the Seven-Year Ratification Deadline .............................................................. 22
Rescission .......................................................................................................................... 23
Congressional Promulgation of Amendments ................................................................... 23
The Proposed District of Columbia Voting Rights (Congressional Representation)
Amendment—Congress Places a Ratification Deadline in the Body of the
Amendment .................................................................................................................... 24
Concluding Observations............................................................................................................... 26
Contacts
Author Contact Information........................................................................................................... 27
Congressional Research Service
CBA123
The Proposed Equal Rights Amendment: Contemporary Ratification Issues
Introduction
In July 1923, at a conference held to commemorate the 75th anniversary of the historic Seneca
Falls Convention, women’s suffrage leader and feminist Alice Paul announced her intention to
develop and promote a new constitutional amendment. Originally named the Mott Amendment
for Lucretia Mott, the prominent 19th century abolitionist, women’s rights activist, and social
reformer, it was intended to guarantee equality under the law for men and women. It was
proposed in the context of the 1920 ratification of the 19th Amendment, which established the
right of women to vote: Paul, a prominent suffragist and member of the National Women’s Party,
characterized the amendment as the next logical step for the women’s movement.1 The proposed
“Mott Amendment” originally stated that “men and women shall have equal rights throughout the
United States and every place subject to its jurisdiction.” The proposed amendment was first
introduced six months later, in December 1923, in the 68th Congress.
Nearly half a century passed before the Mott Amendment, later named the Paul Amendment, and
ultimately modified to become the proposed Equal Rights Amendment (ERA), was approved by
Congress and proposed to the states for ratification in 1972. In common with the 18th and 20th
through 26th Amendments, the proposed ERA included a seven-year deadline for ratification; in
this case the deadline was included in the proposing clause that preceded the text of the
amendment. After considerable early progress in the states, ratifications slowed, and the process
ultimately stalled at 35 states, three short of the 38 approvals (three-fourths of the states) required
by the Constitution. As the 1979 deadline approached, however, ERA supporters capitalized on
the fact that the seven-year time limit was incorporated in the amendment’s proposing clause
(also known as the preamble to the joint resolution authorizing the amendment) rather than in the
body of the amendment. Concluding that the amendment was not time-limited, Congress
extended the ratification period by 38 months, through 1982. No further states added their
approval during the extension, however, and the proposed ERA appeared to expire in 1982.
Since the proposed ERA’s extended ratification period expired in 1982, new analyses have
emerged that have led ERA supporters to assert that the amendment remains viable, and that the
period for its ratification could be extended indefinitely by congressional action.
This report examines the legislative history of the various proposals that ultimately emerged as
the proposed Equal Rights Amendment and both identifies and provides an analysis of
contemporary factors that may bear on its present and future viability.
An Equal Rights Amendment: Legislative and
Ratification History
Despite the efforts of women’s rights advocates in every Congress, nearly 50 years passed
between the time when the Mott Amendment was first introduced in 1923 and approval of the
proposed Equal Rights Amendment by Congress as submitted to the states in 1972.
1
“Alice Paul, Feminist, Suffragist, and Political Strategist,” The Alice Paul Institute, at http://www.alicepaul.org/
alicepaul.htm.
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Five Decades of Effort: Building Support for an Equal Rights
Amendment in Congress, 1923-1970
The first proposal for an equal rights amendment, drafted by Alice Paul, was introduced in the
68th Congress in 1923.2 In its original form, the text of the amendment read as follows:
Men and women shall have equal rights throughout the United States and every place subject
to its jurisdiction.
Congress shall have power to enforce this article by appropriate legislation.3
Although Alice Paul characterized the then-Lucretia Mott Amendment as a logical and necessary
next step in the campaign for women’s rights following the 19th Amendment, the proposal made
little progress in Congress over the course of more than two decades. During the years following
its first introduction, an equal rights amendment was the subject of hearings in either the House or
Senate in almost every Congress. According to one study, the proposal was the subject of
committee action, primarily hearings, on 32 occasions between 1923 and 1946, but it came to the
floor for the first time, in the Senate, only in the latter year.4 During this period, however, the
proposal continued to evolve. In 1943, for instance, the Senate Judiciary Committee reported a
version of an equal rights amendment incorporating revised language that remained unchanged
until 1971:
Equality of rights under the law shall not be denied or abridged by the United States or by
any State on account of sex.
Congress and the several states shall have power, within their respective jurisdictions, to
enforce this article by appropriate legislation.5
Throughout this period, amendment proponents faced opposition from traditionalists, organized
labor, and some leaders of the women’s movement. According to one study of the amendment’s
long pendency in Congress, “[t]he most persistent and most compelling trouble that crippled
prospects for an ERA from its introduction in 1923 until a year after Congress initially passed it
on to the states was opposition from most of organized labor during a period of ascending labor
strength.”6 A principal objection raised by organized labor and women’s organizations that
opposed the amendment was concern that the ERA might lead to the loss of protective legislation
for women, particularly with respect to wages, hours, and working conditions.7 One historian
notes that:
2
S.J.Res. 21, 68th Congress, 1st session, introduced on December 10, 1923, by Senator Charles Curtis of Kansas, and
H.J. Res. 75, introduced on December 13 by Representative Daniel Read Anthony, also of Kansas. Representative
Anthony was a nephew of women’s rights pioneer Susan B. Anthony.
3
Ibid.
4
Amelia Fry, “Alice Paul and the ERA,” in Joan Hoff Wilson, ed., Rights of Passage, The Past and Future of the ERA
(Bloomington, IN: Indiana U. Press, 1986), pp. 13-16.
5
S.J. Res. 25, 78th Congress, introduced by Senator Guy Gillette of Iowa.
6
Gilbert Y. Steiner, Constitutional Inequality: The Political Fortunes of the Equal Rights Amendment (Washington,
DC: Brookings Institution, 1985), p. 7.
7
Kathryn Kish Sklar, “Why Were Most Politically Active Women Opposed to the ERA in the 1920s?” in Rights of
Passage, pp. 25-28. Opponents included the League of Women Voters and the General Federation of Women’s Clubs.
Steiner, Constitutional Inequality, pp. 7-10.
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Through the years of the New Deal and the Truman administration, however, protective
legislation for women held a firm place in organized labor’s list of policy favorites. Since an
ERA threatened protective laws, it and its supporters qualified as the enemy.8
The nature of opposition from women’s groups was illustrated by a 1946 statement issued by 10
prominent figures, including former Secretary of Labor Frances Perkins and former First Lady
Eleanor Roosevelt, which asserted that an equal rights amendment would “make it possible to
wipe out the legislation which has been enacted in many states for the special needs of women in
industry.”9
These attitudes toward the proposal persisted, even though great numbers of women entered the
civilian workforce and the uniformed services during the four years of U.S. involvement in World
War II (1941-1945), taking jobs in government, industry, and the service sector that had
previously been filled largely by men. Congressional support for an equal rights amendment grew
slowly in the late 1940s, but a proposal eventually came to the Senate floor, where it was the
subject of debate and a vote in July 1946. Although the 39-35 vote to approve fell short of the
two-thirds of Senators present and voting required by the Constitution, it was a symbolic first
step.10
The so-called Hayden rider, named for its author, Senator Carl Hayden of Arizona, was perhaps
emblematic of the arguments ERA advocates faced during the early post-war era. First introduced
during the Senate’s 1950 debate, this proposal stated that:
The provisions of this article shall not be construed to impair any rights, benefits, or
exemptions conferred by law upon persons of the female sex.11
Although the rider’s ostensible purpose was to safeguard protective legislation, one source
suggested an ulterior motive: “Hayden deliberately added the riders in order to divide the
amendment’s supporters, and these tactics delayed serious consideration of the unamended
version of the Equal Rights Amendment.”12 Whatever the rider’s intent, it was not welcomed by
ERA supporters,13 and was opposed on the floor by Senator Margaret Chase Smith of Maine, at
that time the only woman Senator.14
The Senate ultimately passed an equal rights amendment resolution that included the Hayden
rider twice in the 1950s. In the 81st Congress, S.J. Res. 25, introduced by Senator Guy Gillette of
8
Steiner, Constitutional Inequality, p 10
Ibid., p. 52.
10
“Equal Rights Amendment,” Congressional Quarterly Almanac, 81st Congress, Second Session, 1950, vol. V
(Washington, DC: Congressional Quarterly News Features, 1951), p. 419.
11
See S.J. Res. 25, as amended, 81st Congress.
12
Mary Frances Berry, Why ERA Failed, Politics, Women’s Rights, and the Amending Process of the Constitution
(Bloomington, IN: Indiana U. Press, 1986), p. 60
13
In oral history interviews conducted between November 1972 and March 1973, Alice Paul recalled that Senator
Hayden’s intentions in introducing the rider were sincere, and that he was dismayed when she told him it made the
amendment unacceptable to many ERA activists. See “Conversations with Alice Paul: Women’s Suffrage and the
Equal Rights Amendment,” Suffragists Oral History Project, U. of California, Calisphere, c. 1976, at
http://content.cdlib.org/view?docId=kt6f59n89c&brand=calisphere&doc.view=entire_text.
14
While she voted against the rider, Senator Smith voted yes on final passage of the resolution as amended, which
included the rider. Senate debate, Congressional Record, vol. 96, pt. 1 (January 25, 1950), p. 870. See also,
Congressional Quarterly Almanac, 1950, p. 420.
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Iowa and numerous co-sponsors, was approved by a vote of 63-19 on January 25, 1950, a margin
that comfortably surpassed the two-thirds of Members present and voting required by the
Constitution.15 An amendment came before the Senate again in the 83rd Congress, when Senator
John M. Butler of Maryland and co-sponsors introduced S.J. Res. 49. The resolution, as amended
by the Hayden rider, passed by a vote of 73-11 on July 16, 1953.16 Over the next 16 years, the
Senate considered various equal rights amendment resolutions in committee in almost every
session, but no proposal was considered on the floor during this period. By 1964, however, the
Hayden rider had lost support in the Senate as perceptions of the equal rights amendment concept
continued to evolve; in the 88th Congress, the Senate Judiciary Committee effectively removed it
from future consideration when it stated in its report:
Your committee has considered carefully the amendment which was added to this proposal
on the floor of the Senate.... Its effect was to preserve “rights, benefits, or exemptions”
conferred by law upon persons of the female sex. This qualification is not acceptable to
women who want equal rights under the law. It is under the guise of so-called “rights” or
“benefits” that women have been treated unequally and denied opportunities which are
available to men.17
At the same time, there was no action in the House of Representatives for over two decades,
between 1948 and 1970. Throughout this period, Representative Emanuel Celler of New York had
blocked consideration of the amendment in the Judiciary Committee, which he chaired from 1949
to 1953 and again from 1955 to 1973. A Member of the House since 1923, Chairman Celler had
been a champion of New Deal social legislation, immigration reform, civil rights legislation, and
related measures throughout his career, but his strong connections with organized labor, which, as
noted earlier, opposed an equal rights amendment during this period, may have influenced his
attitudes toward the proposal.18
Congress Approves and Proposes the Equal Rights Amendment,
1970-1972
Although proposals for an equal rights constitutional amendment continued to be introduced in
every Congress, there had been no floor consideration of any proposal by either chamber since
the Senate’s 1953 action. By the early 1970s, however, the concept had gained increasing
visibility as one of the signature issues of the emerging women’s movement in the United States.
As one eyewitness participant later recounted:
The 1960s brought a revival of the women’s rights movement and more insistence on
changed social and legal rights and responsibilities. The fact of women’s involvement in the
civil rights movement and the anti-war movement and their changed role in the economy
15
Senate debate, Congressional Record, vol. 96, pt. 1 (January 25, 1950), pp. 870-873. For an analysis of the vote, see
Congressional Quarterly Almanac, 1950, pp. 419-422.
16
As with her vote in 1950, Senator Smith opposed the rider, but voted yes on final passage of the resolution in 1953.
Senate debate, Congressional Record, vol. 99, pt. 7 (July 16, 1953), p. 8974.
17
U.S. Congress, Senate, Committee on the Judiciary, Equal Rights for Men and Women, report to accompany S.J. Res.
45, S. Rept. 1558, 88th Congress, 2nd session (Washington, DC: GPO, 1964), p. 2.
18
Steiner, Constitutional Inequality, pp. 14-15.
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created a social context in which many women became active supporters of enhanced
legislation for themselves.19
By the time the concept of an equal rights amendment emerged as a national issue, it had also
won popular support, as measured by public opinion polling. The first recorded survey on support
for the proposal was a CBS News telephone poll conducted in September 1970, in which 56% of
respondents favored an equal rights amendment.20 Favorable attitudes remained consistent during
the 1970s and throughout the subsequent ratification period.21 Labor opposition also began to
fade, and in April 1970, one of the nation’s largest and most influential unions, the United Auto
Workers, voted to endorse the concept of an equal rights amendment.22
In actions that perhaps reflected changing public attitudes, Congress had also moved during the
1960s on several related fronts to address women’s equality issues. The Equal Pay Act of 1963
“prohibited discrimination on account of sex in payment of wages,”23 while the Civil Rights Act
of 1964 banned discrimination in employment on the basis of race, color, religion, sex, or national
origin.24 Although it remained pending, but unacted upon, in Congress, proposals for an equal
rights amendment had gained support in other areas. The Republican Party endorsed an earlier
version of the amendment in its presidential platform as early as 1940, followed by the
Democratic Party in 1944.25 Both parties continued to include endorsements in their subsequent
quadrennial platforms, and, by 1970, Presidents Eisenhower, Kennedy, Johnson, and Nixon were
all on record as having endorsed an equal rights amendment.26
First Vote in the House, 91st Congress—1970
Representative Martha Griffiths of Michigan is widely credited with breaking the legislative
stalemate that had blocked congressional action on a series of equal rights amendment proposals
for more than two decades.27 Against the background of incremental change outside Congress,
Representative Griffiths moved to end the impasse in House consideration of the amendment. On
19
Berry, Why ERA Failed, Politics, Women’s Rights, and the Amending Process of the Constitution, p. 60.
CBS News Survey, September 8-10, 1970. Source: Jane J. Mansbridge, Why We Lost the ERA (Chicago, IL: U. of
Chicago Press, 1986), pp. 206-209.
21
Major survey research firms regularly conducted surveys of public attitudes toward the Equal Rights Amendment
between the 1970s and the 1990s. Their findings reflected consistent support for the proposed amendment throughout
the ratification period. For instance, an early Gallup Poll, conducted in March 1975, showed 58% of respondents
favored the proposed ERA, while 24% opposed it, and 18% expressed no opinion. These levels of support changed
little during the period of ratification for the proposed ERA, never dropping below a 57% approval rate. Source: The
Gallup Poll, Public Opinion, 1982 (Wilmington, DE: Scholarly Resources Inc., 1982), p. 140. In ensuing years, public
support rose. The most recent available survey, conducted by the CBS News Poll in 1999, reported that 89% of
respondents supported the proposed ERA, while 8% opposed and 4% didn’t know or had no opinion. Source: CBS
News Poll, conducted December 13-16, 1999.
22
Mansbridge, Why We Lost the ERA, p. 12.
23
Equal Pay Act of 1963, 77 Stat. 56.
24
Title VII, Civil Rights Act of 1964, 78 Stat. 241.
25
Donald Bruce Johnson, comp., National Party Platforms, vol. I, 1840-1956 (Urbana, IL: U. of Illinois Press, 1978),
pp. 393, 403.
26
U.S. President’s Task Force on Women’s Rights and Responsibilities, A Matter of Simple Justice (Washington, DC:
GPO, 1970), p. 5.
27
“Martha Griffiths and the Equal Rights Amendment,” National Archives, Center for Legislative Archives, at
http://www.archives.gov/legislative/features/griffiths.
20
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January 16, 1969, she introduced H.J. Res. 264, proposing an equal rights amendment, in the
House of Representatives. The resolution was referred to the Judiciary Committee where, as had
been expected, no further action was taken.28 On June 11, 1970, however, Representative Griffiths
took the unusual step of filing a discharge petition to bring the proposed amendment to the floor.
A discharge petition “allows a measure to come to the floor for consideration, even if the
committee of referral does not report it and the leadership does not schedule it.”29 In order for a
House committee to be discharged from further consideration of a measure, a majority of
Representatives (218, if there are no vacancies) must sign the petition. As reported at the time, the
use of the discharge petition had seldom been invoked successfully, having gained the necessary
support only 24 times since the procedure had been established by the House of Representatives
in 1910, and Representative Griffiths’s filing in 1970.30 By June 20, Representative Griffiths
announced that she had obtained the necessary 218 Member signatures for the petition.31
Although the Judiciary Committee had neither scheduled hearings nor issued a report, the
resolution was brought to the House floor on August 10. The House approved the motion to
discharge by a vote of 332 to 22, and approved the amendment itself by a vote of 334 to 26.32
The Senate had begun to act on a resolution proposing an equal rights amendment in the 91st
Congress in 1970, before the amendment came to the House floor. In May, the Judiciary
Committee’s Subcommittee on Constitutional Amendments held hearings on S.J.Res. 61, the
Senate version of an amendment. These hearings were followed by hearings in the full committee
in September, and consideration on the Senate floor in early October. Floor debate was dominated
by consideration and adoption of two amendments that would have (1) exempted women from
compulsory military service and (2) permitted non-denominational prayer in public schools, and a
final amendment that provided alternative language for the resolution. Thus encumbered, the
Senate resolution was unacceptable to ERA supporters, but, in any event, the Senate adjourned on
October 14 without a vote on the resolution as amended, and failed to bring it to the floor for final
action in the subsequent lame-duck session.33
Passage and Proposal by Congress, 92nd Congress—1971-1972
In the 92nd Congress, Representative Griffiths began the process anew in the House of
Representatives when she introduced H.J.Res. 208, proposing an equal rights amendment.
Chairman Celler continued to oppose it, but no longer blocked committee action. After
subcommittee and full committee hearings, the House Judiciary Committee reported an
amendment on July 14, but the resolution as reported included amendments concerning
citizenship, labor standards, and the exemption of women from selective service that were
unacceptable to ERA supporters. When H.J.Res. 208 came to the floor in early October, however,
28
Congressional Record, vol. 115, pt. 1 (January 16, 1969), p. 1144.
CRS Report 97-552, The Discharge Rule in the House: Principal Features and Uses, by Richard S. Beth, p. 3.
30
“Equal Rights for Women Dropped in Senate,” Congressional Quarterly Almanac, 91st Congress, 2nd Session—1970,
vol. XXVI (26) (Washington, DC: Congressional Quarterly, Inc., 1970), p. 707.
31
Ibid.
32
For debate and vote on the amendment, see Congressional Record, vol. 116, pt. 21 (August 10, 1970), pp. 2800428037.
33
“Equal Rights for Women Dropped in Senate,” Congressional Quarterly Almanac, 1970, pp. 708-709.
29
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the House stripped out the committee amendments, and, on October 12, it approved the resolution
by a bipartisan vote of 354 to 24.34
The Senate took up the House-passed amendment during the second session of the 92nd Congress,
in March 1972. On March 14, the Judiciary Committee reported a clean version of H.J. Res. 208
after rejecting several amendments, including one adopted by the Subcommittee on the
Constitution, and several others offered in the full committee. The resolution was called up on
March 15, and immediately set aside. The Senate began debate on the amendment on March 17,
with Senator Birch Bayh of Indiana, a longtime ERA supporter, as floor manager. On the same
day, President Richard Nixon released a letter to Senate Republican Leader Hugh Scott of
Pennsylvania reaffirming his endorsement of the Equal Rights Amendment.35 After two days in
which the Members debated the proposal, Senator Sam Ervin of North Carolina offered a series
of amendments that, among other things, would have exempted women from compulsory military
service and service in combat units in the U.S. Armed Forces, and preserved existing genderspecific state and federal legislation that extended special exemptions or protections to women.
Over the course of two days, Senator Ervin’s amendments were serially considered and rejected,
generally by wide margins. On March 22, the Senate approved the House version of the
amendment, H.J. Res. 208, by a vote of 84 to 8, with strong bipartisan support.36
The text H.J. Res. 208—the Equal Rights Amendment as proposed by the 92nd Congress—
follows:
House Joint Resolution 208
Proposing an amendment to the Constitution of the United States relative to equal rights for
men and women.
Resolved by the Senate and House of Representatives of the United States of America in
Congress assembled (two-thirds of each house concurring therein), That
The following article is proposed as an amendment to the Constitution of the United States,
which shall be valid to all intents and purposes as part of the Constitution when ratified by
the legislatures of three-fourths of the several States within seven years of its submission by
the Congress:
“Section 1. Equality of rights under the law shall not be denied or abridged by the United
States or any State on account of sex.
34
The vote in the House was 217 Democrats and 137 Republicans in favor, 12 Democrats and 12 Republicans opposed.
Congressional Record, vol. 117, pt. 27 (October 12, 1971), p. 35815. See also “House Passes Equal Rights
Constitutional Amendment,” Congressional Quarterly Almanac, 92nd Congress, 1st Session, 1971, vol. XXVII (27)
(Washington, DC: Congressional Quarterly Inc. 1972), pp. 656-658.
35
In his letter, President Nixon noted that he had co-sponsored the ERA as a freshman Senator in 1951, and that he
remained committed to the amendment. “Letter to the Senate Minority Leader About the Proposed Constitutional
Amendment on Equal Rights for Men and Women,” U.S. President, Public Papers of the Presidents of the United
States, Richard Nixon, 1972 (Washington, DC: GPO, 1972), p. 444.
36
The Senate vote was 47 Democrats and 37 Republicans in favor; two Democrats and six Republicans opposed.
Congressional Record, vol. 118, pt. 8 (March 22, 1972), p. 9598. See also “Equal Rights: Amendment Passed Over
Ervin Opposition,” Congressional Quarterly Almanac, 92nd Congress, 2nd session, 1972, vol. XVIII (18) (Washington,
DC: Congressional Quarterly Inc. 1973), pp. 199-204.
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“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.”
The action of the two chambers in approving H.J. Res. 208 by two-thirds majorities of Members
present and voting (91.3% in the Senate and 93.4% in the House) had the effect of formally
proposing the amendment to the states for ratification.
Congress Sets a Seven-Year Ratification Deadline
When it proposed the Equal Rights Amendment, Congress stipulated in the preamble of the joint
resolution that the ERA was to be ratified by the constitutionally requisite number of state
legislatures (38 then as now) within seven years of the time it was proposed, in order to become a
valid part of the Constitution. A time limit for ratification was first instituted with the 18th
Amendment,37 proposed in 1917, and, with the exception of the 19th Amendment and the Child
Labor Amendment, all subsequent proposed amendments have included a ratification deadline of
seven years.
With respect to the Child Labor Amendment, Congress did not incorporate a ratification deadline
when it proposed the amendment in 1924. It was ultimately ratified by 28 states through 1937, 8
short of the 36 required by the Constitution at that time, the Union then comprising 48 states.
Although the amendment arguably remains technically viable because it lacked a deadline when
proposed, the Supreme Court in 1941 upheld federal authority to regulate child labor as
incorporated in the Fair Labor Standards Act of 1938 (52 Stat. 1060) in the case of United States
v. Darby Lumber Company (312 U.S. 100 (1941)). In this case, the Court reversed its earlier
decision in Hammer v. Dagenhart (24 U.S. 251 (1918)), which ruled that the Keating-Owen Child
Labor Act of 1916 (39 Stat.675) was unconstitutional.38 The amendment is thus widely regarded
as having been rendered moot by the Court’s 1941 decision.39
In the case of the 18th, 20th, 21st, and 22nd Amendments, the “sunset” ratification provision was
incorporated in the body of the amendment itself. For subsequent amendments, however,
Congress determined that inclusion of the time limit within its body “cluttered up” the proposal.
Consequently, all but one of the subsequently proposed amendments40 proposed later: the 23rd,
24th, 25th and 26th, and the ERA, placed the limit in the preamble, rather than in the body of the
amendment itself.41 This decision, seemingly uncontroversial at the time, was later to have
profound implications for the question of extending the ratification window for the ERA.
37
The origins of and rationale for the seven-year ratification deadline are examined in greater detail later in this report.
(312 U.S. 100 (1941)). In this case, the Court reversed its earlier decision in Hammer v. Dagenhart (24 U.S. 251
(1918)), which ruled that the Keating Owen Child Labor Act of 1916, 39 Stat.675, was unconstitutional.
39
John R. Vile, “Child Labor Amendment,” in Encyclopedia of Constitutional Amendments, Proposed Amendments,
and Amending Issues, 1789-2010, 3rd edition (Santa Barbara, CA: ABC-CLIO, 2010), vol. 2, p. 65.
40
Only the proposed District of Columbia Voting Rights (Congressional Representation) Amendment included a
ratification deadline within the body of the amendment. This exception is examined later in this report.
41
U.S. Congress, The Constitution of the United States of America, Analysis and Interpretation, “Article V, Mode of
Amendment,” online edition available to Members of Congress and their staff at http://www.crs.gov/conan/
default.aspx?doc=Article05.xml&mode=topic&t=1|2|3; hereafter, The Constitution Annotated.
38
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Ratification Efforts in the States
States initially responded quickly once Congress proposed the Equal Rights Amendment for their
consideration. Hawaii was the first state to ratify, on March 22, 1972, the same day the Senate
completed action on H.J. Res. 208. By the end of 1972, 22 states had ratified the amendment, and
it seemed well on its way to adoption. Opposition to the amendment, however, began to coalesce
around organizations like “STOP ERA,” which revived many of the arguments addressed during
congressional debate. Opponents also broadly asserted that ratification of the amendment would
set aside existing state and local laws providing workplace and other protections for women and
would lead to other, unanticipated negative social and economic effects.42 In 1976, ERA
supporters established a counter-organization, “ERA America,” as an umbrella association to
coordinate the efforts of pro-amendment groups and serve as a high-profile national advocate for
the amendment.43
Opposition to the proposed Equal Rights Amendment continued to gain strength, although one
scholar noted that public approval of the amendment never dropped below 54% during the
ratification period.44 Following the first 22 state approvals, eight additional states ratified in 1973,
three more in 1974, and one each in 1975 and 1977, for an ultimate total of 35, three short of the
constitutional requirement of 38 state ratifications. 45 At the same time, however, ERA opponents
in the states promoted measures in a number of legislatures to repeal or rescind their previous
ratifications. Although the constitutionality of such actions has long been questioned, by 1979,
five states had passed rescission measures.46 The question of rescission will be addressed in detail
later in this report.
Ratification Is Extended in 1978, but Expires in 1982
By the late 1970s, the ratification process had clearly stalled, and the deadline for ratification as
specified in the preamble to H.J. Res. 208 was approaching. Reacting to the impending “sunset”
date of March 22, 1979, ERA supporters developed a novel strategy to extend the deadline by
congressional resolution. The vehicle chosen by congressional supporters was a House joint
resolution, H.J.Res. 638, introduced in the 95th Congress on October 26, 1977, by Representative
Elizabeth Holtzman of New York and others. In its original form, the resolution proposed to
extend the deadline an additional seven years, thus doubling the original ratification period.
During hearings in the House Judiciary Committee’s Subcommittee on Civil and Constitutional
Rights, legal scholars debated questions on the authority of Congress to extend the deadline;
42
David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776-1995 (Lawrence, KS: University
of Kansas Press, 1996), pp. 409-412.
43
Ibid., pp. 412-413. Berry, Why ERA Failed, p. 69.
44
Mansbridge, Why We Lost the ERA, pp. 206-209.
45
Ratifications by year and order of approval: 1972: Hawaii, New Hampshire, Delaware, Iowa, Kansas, Idaho,
Nebraska, Texas, Tennessee, Alaska, Rhode Island, New Jersey, Colorado, West Virginia, Wisconsin, New York,
Michigan, Maryland, Massachusetts, Kentucky, Pennsylvania, and California; 1973: Wyoming, South Dakota, Oregon,
Minnesota, New Mexico, Vermont, Connecticut, and Washington; 1974: Maine, Montana, and Ohio; 1975: North
Dakota; 1977: Indiana. (CRS Report 82-218, The Proposed Equal Rights Amendment, by Leslie W. Gladstone, p. 33.)
46
State rescissions by year: 1973: Nebraska; 1974: Tennessee; 1977: Idaho; 1978: Kentucky; 1979: South Dakota.
Source, Congressional Research Service Memorandum, Questions Pertaining to the Equal Rights Amendment, by
David C. Huckabee, August 19, 2004, p. 2. Available to Members of Congress and staff from CRS.
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whether an extension vote should be by a simple majority or a supermajority of two-thirds of the
Members present and voting; and if state rescissions of their ratifications were lawful. The full
Judiciary Committee also addressed these issues during its deliberations in 1978. 47 Continuing
controversy in the committee and opposition to extending the ratification period a full seven years
led to a compromise amendment to the resolution that reduced the proposed extension to three
years, three months, and eight days. ERA supporters accepted the shorter period as necessary to
assure committee approval of the extension. Two other changes, one that would have recognized
the right of states to rescind their ratifications, and a second requiring passage of the extension in
the full House by a two-thirds super majority, were both rejected by the committee when it
reported the resolution to the House on July 30.48
The full House debated the resolution during the summer of 1978, rejecting an amendment that
proposed to recognize states’ efforts to rescind their instruments of ratification. Another
amendment rejected on the floor would have required votes on the ERA deadline extension to
pass by the same two-thirds vote necessary for original actions proposing constitutional
amendments. The House adopted the resolution by a vote of 233 to 189 on August 15, 1978.49
The Senate took up H.J.Res. 638 in October; during its deliberations it rejected amendments
similar to those offered in the House and joined the House in adopting the resolution, in this case
by a vote of 60 to 36 on October 6.50 In an unusual expression of support, President Jimmy Carter
signed the joint resolution on October 20, even though the procedure of proposing an amendment
to the states is solely a congressional prerogative under the Constitution.51
During the extended ratification period, ERA supporters sought unsuccessfully to secure the three
necessary ratifications for the amendment, while opponents pursued rescission in the states with
similarly unsuccessful results. A Gallup Poll reported in August 1981 that 63% of respondents
supported the amendment, a higher percentage than in any previous survey, but, as one observer
noted, “The positive poll results were really negative, because additional ratifications needed to
come from the states in which support was identified as weakest.”52 On June 30, 1982, the Equal
Rights Amendment deadline expired with the number of state ratifications at 35, not counting
rescissions.
Rescission: A Legal Challenge to the Ratification Process
As noted earlier, while ratification of the proposed Equal Rights Amendment was pending, a
number of states passed resolutions that sought to rescind their earlier ratifications. By the time
the amendment’s extended ratification deadline passed in 1982, the legislatures of more than 17
47
“ERA Deadline Extended,” Congressional Quarterly Almanac, 95th Congress, 2nd Session, 1978, vol. XXIV (34)
(Washington, DC: Congressional Quarterly Inc., 1979), pp. 773-775.
48
Ibid.
49
Ibid., pp. 775-776.
50
Ibid., p. 773.
51
“ERA Deadline Extension,” Congress and the Nation, vol. V, 1977-1980 (Washington, DC: Congressional Quarterly
Inc., 1981), pp. 798-800. For President Carter’s explanation of his signing of the extension joint resolution, see “Equal
Rights Amendment, Remarks on Signing H.J.Res. 638,” in U.S. President, Public Papers of the Presidents of the
United States, Jimmy Carter, 1978 (Washington, DC: GPO, 1979), pp. 1800-1801.
52
Berry, Why ERA Failed, p. 79.
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states had considered rescission, and five passed these resolutions.53 Throughout the period,
however, legal opinion as to the constitutionality of rescission remained divided.
On May 9, 1979, the State of Idaho, joined by the State of Arizona and individual members of the
Washington legislature, brought legal action in the U.S. District Court for the District of Idaho,
asserting that states did have the right to rescind their instruments of ratification.54 The plaintiffs
further asked that the extension enacted by Congress be declared null and void.55
On December 28, 1981, District Court Judge Marion Callister ruled (1) that Congress had
exceeded its power by extending the deadline from March 22, 1979, to June 30, 1982; and (2) that
states had the authority to rescind their instruments of ratification, provided they took this action
before an amendment was declared to be an operative part of the Constitution.56 The National
Organization for Women (NOW), the largest ERA advocacy organization, and the General
Services Administration (GSA)57 appealed this decision directly to the Supreme Court, which, on
January 25, 1982, consolidated four appeals and agreed to hear the cases. In its order, the High
Court also stayed the judgment of the Idaho District Court. On June 30, as noted earlier, the
extended ratification deadline expired, so that when the Supreme Court convened for its term on
October 4, it dismissed the appeals as moot, and vacated the district court decision.58
Renewed Legislative and Constitutional Proposals,
1982 to the Present
Interest in the proposed Equal Rights Amendment did not end when its extended ratification
deadline expired on June 30, 1982. Since that time, there have been regular efforts to introduce
the concept as a “fresh start” in Congress, while additional approaches have emerged that would
revive H.J. Res. 208, the amendment as originally proposed by the 92nd Congress.
“Fresh Start” Proposals
Perhaps the most basic means of restarting an equal rights amendment would be by introduction
of a new joint resolution, a “fresh start.” Even as the June 30, 1982, extended ratification deadline
approached, resolutions proposing an equal rights amendment were introduced in the 97th
Congress. New versions of the ERA have continued to be introduced in the House and Senate in
each succeeding Congress. For many years, Senator Edward Kennedy of Massachusetts
customarily introduced an equal rights amendment early in the first session of a newly convened
Congress.
53
Kyvig, Explicit and Authentic Acts, p. 415. For state rescissions, see above at footnote 45.
It may be noted, however, that neither the Idaho nor the Arizona legislature had passed a resolution of rescission.
55
State of Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho, 1981).
56
John F. Carroll, “Constitutional Law: Constitutional Amendment, Rescission of Ratification, Extension of
Ratification Period, State of Idaho v. Freeman,” Akron Law Review, vol. 16, no. 1 (summer 1982), pp. 151-161.
57
GSA became involved in 1982 because it was at that time the parent agency of the National Archives and Records
Service, now the National Archives and Records Administration, which, then, as now, received and recorded state
ratifications for proposed constitutional amendments.
58
Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho, 1981), prob. juris. noted, 455 U.S. 918 (1982), vacated and
remanded to dismiss, 459 U.S. 809 (1982).
54
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112th and 113th Congresses: Proposed “Fresh Start” Amendments
In the 112th Congress, Representative Carolyn Maloney of New York and Senator Robert
Menendez of New Jersey continued the tradition when they introduced Equal Rights Amendment
proposals in the House, H.J.Res. 69, and the Senate, S.J.Res. 21, respectively. These resolutions
received no action beyond routine committee referral.
One “fresh start” version of the Equal Rights Amendment has been introduced to date in the 113th
Congress. On March 5, 2013, Senator Robert Menendez introduced S.J.Res. 10, a fresh start
Equal Rights Amendment.59 The resolution’s text uses the familiar formula: “[e]quality of rights
under the law shall not be denied or abridged by the United States or by any State on account of
sex.” Significantly, in light of the controversy surrounding ratification of the original ERA,
S.J.Res. 10 does not include a time limit for ratification, in either the preamble or the body of the
proposed amendment.
“Three-State” Proposals
In addition to “fresh start” proposals, alternative approaches to the ratification question have also
emerged over the years. In 1994, Representative Robert E. Andrews of New Jersey introduced
H.Res. 432 in the 103rd Congress. His proposal sought to require the House of Representatives to
“take any legislative action necessary to verify the ratification of the Equal Rights Amendment as
part of the Constitution when the legislatures of an additional 3 states ratify the Equal Rights
Amendment.” This resolution was a response to the “three-state strategy” proposed by an “ERA
Summit” in the 1990s,60 which was called following adoption of the 27th Amendment, the
Madison Amendment, in 1992. The rationale for H.Res. 432, and a succession of identical
resolutions offered by Representative Andrews in subsequent Congresses,61 was that, following
the precedent of the Madison Amendment, the ERA remained a valid proposal and the ratification
process was still open. Representative Andrews further asserted that the action of Congress in
extending the ERA deadline in 1978 provided a precedent by which “subsequent sessions of
Congress may adjust time limits placed in proposing clauses by their predecessors. These
adjustments may include extensions of time, reductions, or elimination of the deadline
altogether.”62 The influence of the Madison Amendment is examined at greater length later in this
report.
112th and 113th Congresses: “Three-State” and Related Legislative Proposals
The year 2012 marked the 30th anniversary of the expiration of the proposed Equal Rights
Amendment’s extended ratification deadline. During that period, new analyses have emerged that
bear on the question of whether the amendment proposed in 1972 remains constitutionally viable.
59
Co-sponsors include Senators Begich, Blumenthal, Boxer, Cardin, Gillibrand, Harkin, Hirono, Levin, Stabenow,
Warren, and Whitehouse.
60
The Equal Rights Amendment, a project of the Alice Paul Institute, in collaboration with the ERA Task Force of the
National Council of Women’s Organizations, at http://www.equalrightsamendment.org.
61
Most recently, H.Res. 794 in the 112th Congress.
62
Rep. Robert E. Andrews, “Applauding the Recent Actions Taken by the Illinois State Legislature Regarding the
Equal Rights Amendment,” Extension of Remarks in the House, Congressional Record, vol. 149, pt. 10 (June 5, 2003),
pp. 14039-14040.
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As noted earlier, one of the most influential developments opening new lines of analysis occurred
when the 27th “Madison” Amendment, originally proposed in 1789 as part of a package that
included the Bill of Rights, was taken up in the states after more than two centuries and ultimately
ratified in 1992. This action, and Congress’s subsequent acknowledgment of the amendment’s
viability, bear directly on the issue of the current status of the proposed Equal Rights Amendment,
and are examined later in this memorandum.
The year 2012 also marked the emergence of legislative proposals in both houses of Congress
that may have been influenced by these developments. For the first time since the proposed Equal
Rights Amendment’s ratification deadline expired, resolutions were introduced in the House and
Senate that sought to:
•
repeal, or eliminate entirely, the deadlines set in 1972 and 1978;
•
reopen the Equal Rights Amendment for state ratification at the present count of
35 states; and
•
extend the period for state action on ratification indefinitely.
Representative Tammy Baldwin of Wisconsin and several co-sponsors introduced the House
version, H.J.Res. 47, on March 8, 2011.63 Senator Ben Cardin of Maryland and several cosponsors introduced the Senate version, S.J.Res. 39, on March 22.64 These two proposals took the
form of similar joint resolutions, which declared:
Resolved by the Senate and House of Representatives of the United States of America in
Congress assembled, That notwithstanding any time limit contained in House Joint
Resolution 208 of the Ninety–second Congress, second session (Senate version read: “92d
Congress, as agreed to in the Senate on March 22, 1972”), the article of amendment
proposed to the States in that joint resolution shall be valid to all intents and purposes as part
of the Constitution whenever ratified by three additional States (Senate version read:
“whenever ratified by the legislatures of three fourths of the several States.”).
These resolutions proposed to exercise congressional authority claimed by ERA proponents to
make the original amendment, as proposed in H.J. Res. 208, 92nd Congress, eligible for
ratification for an indefinite period. Both resolutions would have removed previous deadlines for
ratification of the proposed Equal Rights Amendment, and, if enacted, they sought to provide that
the existing ERA would be, as stated in Article V, “valid for all intents and purposes as part of the
Constitution when ratified by the legislatures of three additional states.”
As noted earlier, on September 20, 2012, Representative Robert E. Andrews also introduced
H.Res. 794 in the 112th Congress. This proposal would have authorized the House of
Representatives to “take any legislative action necessary to verify the ratification of the Equal
63
By the end of the 112th Congress, co-sponsors of H.J.Res. 47 included Representatives Andrews, Capps, Capuano,
Castor, Chu, Clarke, Connolly, Conyers, Cummings, Deutch, Dingell, Edwards, Ellison, Farr, Franks, Grijalva,
Gutierrez, Hastings of Florida, Heinrich, Himes, Hoyer, Israel, Jackson of Illinois, Kaptur, Kucinich, Lee of California,
Levin, Maloney, McCollum, McGovern, Michaud, Moore, Moran, Murphy of Connecticut, Holmes Norton, Perlmutter,
Peters, Pingree, Richardson, Ruppersberger, Ryan of Ohio, Loretta Sanchez, Sarbanes, Schakowsky, Sewell, Smith of
Washington, Speier, Tsongas, Van Hollen, Wasserman Schultz, Welch, Wilson of Florida, and Woolsey.
64
By the end of the 112th Congress, co-sponsors of S.J.Res. 39 included Senators Akaka, Bingham, Boxer, Brown of
Ohio, Durbin, Gillibrand, Harkin, Kerry, Kirk, Landrieu, Lautenberg, Menendez, Mikulski, Murkowski, Sanders, and
Stabenow.
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Rights Amendment as part of the Constitution when the legislatures of an additional 3 states ratify
the Equal Rights Amendment.”
By the end of the 112th Congress, no action had been taken on any of these measures, aside from
referral to the respective Judiciary Committees of the House and Senate.
Contemporary Viability of the Equal Rights
Amendment
Supporters of the ERA identify a number of sources that they claim support their contention that
the proposed Equal Rights Amendment remains constitutionally viable, to which various scholars
and other observers have raised concerns or objections.
Article V: Congressional Authority over the Amendment Process
Proponents of the proposed Equal Rights Amendment cite the exceptionally broad authority over
the constitutional amendment process granted to Congress by Article V of the Constitution as a
principal argument for their case. The article’s language states that “[t]he Congress, whenever two
thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution ...
which ... shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by
the Legislatures of three fourths of the several States or by Conventions in three fourths thereof....
” While the Constitution is economical with words when spelling out the authority extended to
the three branches of the federal government, it does speak quite specifically when it places limits
on these powers. In this instance, the founders placed no time limits or other conditions on
congressional authority to propose amendments, so long as they are approved by the requisite
two-thirds majority of Senators and Representatives present and voting.
In his 1992 opinion for the Counsel to the President concerning ratification of the 27th
Amendment, Acting Assistant Attorney General Timothy Flanigan took note of the absence of
time limits in Article V, and drew a comparison with their presence in other parts of the
Constitution:
... [t]he rest of the Constitution strengthens the presumption that when time periods are part
of a constitutional rule, they are specified. For example, Representatives are elected every
second year ... and a census must be taken within every ten year period following the first
census, which was required to be taken within three years of the first meeting of Congress.....
Neither House of Congress may adjourn for more than three days without the consent of the
other, ... and the President has ten days (Sundays excepted) within which to sign or veto a
bill that has been presented to him.... The Twentieth Amendment refers to certain specific
dates, January 3rd and 20th. Again, if the Framers had intended there to be a time limit for the
ratification process, we would expect that they would have so provided in Article V.65
65
U.S. Department of Justice, Office of Legal Counsel, Congressional Pay Amendment, Memorandum Opinion for the
Counsel to the President, by Timothy E. Flanigan, Acting Assistant Attorney General, Washington, November 2, 1992,
at http://www.justice.gov/olc/congress.17.htm.
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Further, Article V empowers Congress to specify either of two modes of ratification: by the state
legislatures, or by ad hoc state conventions. Neither the President nor the federal judiciary is
allocated any obvious constitutional role in the amendment process. To those who might suggest
the Constitutional Convention did not intend to grant such wide authority to Congress, ERA
supporters can counter by noting that the founders provided a second mode of amendment,
through a convention summoned by Congress at the request of the legislatures of two-thirds of
the states.66 The suggestion here is that the founders deliberately provided Congress with plenary
authority over the amendment process, while simultaneously checking it through the supermajority requirement, and balancing it with the Article V Convention alternative.67 In the case of
the proposed Equal Rights Amendment, it has been inferred by ERA supporters that since neither
ratification deadlines nor contemporaneity requirements for amendments appear anywhere in
Article V, Congress is free to propose, alter, or terminate such ratification provisions at its
discretion.68
Advocates of congressional authority over the amendment process might also note the fact that
Congress has acted on several occasions in the course of, or after, the ratification process by the
states to assert its preeminent authority under Article V in determining ratification procedures.69
For instance, on July 21, 1868, Congress passed a resolution declaring the 14th Amendment to
have been duly ratified and directing Secretary of State William Seward to promulgate it as such.
Congress had previously received a message from the Secretary reporting that 28 of 37 states then
in the Union had ratified the amendment, but that of the 28, two state legislatures had passed
resolutions purporting to rescind their ratifications, and the legislatures of three others had
approved the amendment only after previously rejecting earlier ratification resolutions. Congress
considered these issues but proceeded to declare the ratification process complete.70 Congress
similarly exercised its authority over the process less than two years later when it confirmed the
66
The founders were concerned that Congress might resist the proposal of necessary amendments. As a result, they
included the Article V Convention process as an alternative to congressional proposal of amendments. Alexander
Hamilton explained the origins of the Article V Convention process in The Federalist: “The intrinsic difficulty of
governing thirteen states ... will, in my opinion, constantly impose on the national rulers the necessity of a spirit of
accommodation to the reasonable expectations of their constituents. But there is yet a further consideration.... It is this,
that the national rulers, whenever nine States concur, will have no option on the subject. By the first article of the plan,
the Congress will be obliged to call a convention for proposing amendments.... The words of this article are
peremptory. The Congress ‘shall call a convention.’ Nothing in this particular is left to the discretion of that body.” See
Alexander Hamilton, “Conclusion,” in The Federalist, Number 85 (Cambridge, MA: The Belknap Press of the Harvard
University Press, 1961), p. 546.
67
For further information on the “Article V Convention” alternative method for the proposal of constitutional
amendments, see CRS Report R42589, The Article V Convention to Propose Constitutional Amendments:
Contemporary Issues for Congress, by Thomas H. Neale; and CRS Report R42592, The Article V Convention for
Proposing Constitutional Amendments: Historical Perspectives for Congress , by Thomas H. Neale.
68
Mason Kalfus, “Why Time Limits on the Ratification of Constitutional Amendments Violate Article V,” University
of Chicago Law Review, vol. 66, no. 2 (spring, 1999), pp. 451-453.
69
While these are precedents that Congress could follow, or at least look to for guidance, it should be recalled that one
Congress may not bind succeeding Congresses in expression of their decision making. See, for example, William
Holmes Brown, Charles W. Johnson, and John V. Sullivan, House Practice: A Guide to the Rules, Precedents, and
Procedures of the House (Washington, DC: GPO, 2011), p. 158: “The Constitution gives each House the power to
determine the rules of its proceedings.... This power cannot be restricted by the rules or statutory enactments of a
preceding House.”
70
15 Stat. 709. The reconstructed legislatures of North Carolina, South Carolina, and Georgia reversed rejections by
earlier unreconstructed state legislatures. Ohio and New Jersey had passed resolutions purporting to rescind their earlier
ratifications of the amendment. For further information, see The Constitution Annotated, “Article V, Ratification.”
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ratification of the 15th Amendment by resolution passed on March 30, 1870.71 Congress exercised
its authority over the amendment process again in 1992 when it declared the 27th Amendment, the
so-called “Madison Amendment,” to have been ratified, an event examined in the next section of
this report.
Opponents of extension, while not questioning the plenary authority of Congress over the
amending process, raise questions on general grounds of constitutional restraint and fair play.
Some reject it on fundamental principle; Grover Rees III, writing in The Texas Law Review,
asserted that
... extension is unconstitutional insofar as it rests on the unsubstantiated assumption that
states which ratified the ERA with a seven-year time limit also would have ratified with a
longer time limit, and insofar as it attempts to force those states into an artificial consensus
regardless of their actual intentions.72
Mary Frances Berry noted a similar argument raised by ERA opponents:
... some scholars pointed out that legally an offer and agreed-upon terms is required before
any contract is valid. ERA ratification, according to this view, was a contract. Therefore,
states could not be regarded as contracting not in the agreed upon terms. The agreed upon
terms included a seven-year time limit. When seven years passed, all pre-existing
ratifications expired.73
Writing in Constitutional Commentary, authors Brannon P. Denning and John R. Vile offered
additional criticisms of efforts to revive the proposed Equal Rights Amendment, noting that
ample time had been provided for ratification between 1972 and 1982. They further suggested
that elimination of ratification deadlines would reopen the question of purported state rescissions
of acts of ratification; that progress in women’s equality in law and society may have “seemed to
render ERA superfluous”;74 and that allowing the proposed amendment “a third bite at the apple
would suggest that no amendment to the U.S. Constitution ever proposed ... could ever be
regarded as rejected.”75
The Madison Amendment (the 27th Amendment): A Dormant
Proposal Revived and Ratified
Supporters of the proposed Equal Rights Amendment cite another source in support of their
argument for the proposed amendment’s viability: the 27th Amendment to the Constitution, also
known as the Madison Amendment, which originated during the first year of government under
71
16 Stat. 1131. Here again, Congress refused to acknowledge the act of the New York legislature purporting to rescind
its previous instrument of ratification.
72
Grover Rees III, “Throwing Away the Key: The Unconstitutionality of the Equal Rights Amendment Extension,”
Texas Law Review, vol. 58, no. 5, (May 1980), p. 930.
73
Berry, Why ERA Failed, p. 71.
74
For additional information, see CRS Report RL30253, Sex Discrimination and the United States Supreme Court:
Developments in the Law, by Jody Feder.
75
Brannon P. Denning and John R. Vile, “Necromancing the Equal Rights Amendment,” Constitutional Commentary
(University of Minnesota), vol. 17, winter, 2000, issue 3, p. 598. See also the discussion of the unique circumstances of
the 27th Amendment in The Constitution Annotated, “Article V, Ratification.”
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the Constitution, but fell into obscurity, and became the object of renewed public interest only in
the late 20th century. In 1789, Congress proposed a group of 12 amendments to the states for
ratification. Articles III through XII of the proposals became the Bill of Rights, the first 10
amendments to the Constitution. They were ratified quickly, and were declared adopted on
December 15, 1791. Articles I and II, however, were not ratified along with the Bill of Rights;
Article II, which required that no change in Members’ pay could take effect until after an election
for the House of Representatives had taken place, was ratified by six states between 1789 and
1791 (the ratification threshold was 10 states in 1789), after which it was largely forgotten.76
After nearly two centuries, the Madison Amendment was rediscovered in 1978, when the
Wyoming legislature was informed that as no deadline for ratification had been established, the
measure was arguably still viable. Seizing on the opportunity to signal its disapproval of a March
3, 1978, vote by Congress to increase compensation for Representatives and Senators, the
legislature passed a resolution approving the proposed amendment. In its resolution of
ratification, the legislature cited the congressional vote to increase Member compensation, noting
that:
...the percentage increase in direct compensation and benefits [to Members of Congress] was
at such a high level, as to set a bad example to the general population at a time when there is
a prospect of a renewal of double-digit inflation; and ... increases in compensation and
benefits to most citizens of the United States are far behind these increases to their elected
Representatives.... ”77
The Wyoming legislature’s action went almost unreported, however, until 1983, when Gregory D.
Watson, a University of Texas undergraduate student, studied the amendment and concluded that
it was still viable and eligible for ratification. Watson began a one-person campaign, circulating
letters that drew attention to the proposal to state legislatures across the country.78 This grassroots
effort developed into a nationwide movement, leading ultimately to 31 additional state
ratifications of the amendment between 1983 and 1992.
In 1991, as the number of state ratifications of the Madison Amendment neared the requisite
threshold of 38, Representative John Boehner of Ohio introduced H.Con.Res. 194 in the 102nd
Congress. The resolution noted that, “this amendment to the Constitution was proposed without a
deadline for ratification and is therefore still pending before the States.” The resolution went on to
state “the sense of the Congress that at least 3 of the remaining 15 States should ratify the
proposed 2nd amendment to the Constitution, which would delay the effect of any law which
varies the compensation of Members of Congress until after the next election of
Representatives.”79 Although no further action was taken on the resolution, its findings
anticipated Congress’s response to the amendment.
76
In 1873, Ohio provided the only additional ratification to the pay amendment. For the record, Article I proposed
regulating the size of the House of Representatives so that it eventually would include “not less than two hundred
Representatives, nor more than one Representative for every fifty thousand persons.”
77
Wyoming legislature, H.J. Res. 6 (March 3, 1978), quoted in Richard B. Bernstein, “The Sleeper Wakes: The History
and Legacy of the Twenty-Seventh Amendment,” Fordham Law Review, vol. 61, issue 3, (December 1992), p. 537.
78
Ibid.; Kyvig, Explicit and Authentic Acts, p. 465.
79
H.Con.Res. 194, 102nd Congress, introduced August 1, 1991.
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On May 7, 1992, the Michigan and New Jersey legislatures both voted to ratify the “Madison
Amendment,” becoming the 38th and 39th states to approve it. As required by law,80 the Archivist
of the United States certified the ratification on May 18, and the following day an announcement
that the amendment had become part of the Constitution was published in the Federal Register.81
Although the Archivist was specifically authorized by the U.S. Code to publish the act of
adoption and issue a certificate declaring the amendment to be adopted, many in Congress
believed that, in light of the unusual circumstances surrounding the ratification, positive action by
both houses was necessary to confirm the Madison Amendment’s legitimacy.82 In response, the
House adopted H.Con.Res. 32083 on May 20, and the Senate adopted S.Con.Res. 12084 and S.Res.
29885 on the same day. All three resolutions declared the amendment to be duly ratified and part
of the Constitution.86
By providing a recent example of a proposed amendment that had been inactive for more than a
century, the 27th Amendment suggests to ERA supporters an attainable model for renewed
consideration of the proposed Equal Rights Amendment. In particular, it may be noted that
H.Con.Res. 194 (Representative Boehner) in the 102nd Congress offered wording very similar to,
but actually more emphatic than, the language of H.J.Res. 47 (Representative Baldwin) and
S.J.Res. 39 (Senator Cardin) in the 112th Congress.
Ratification of the Madison Amendment: A Model for the
Proposed Equal Rights Amendment?
The example of the Madison Amendment contributed to the emergence of a body of advocacy
scholarship that asserts the proposed Equal Rights Amendment has never lost its constitutional
viability. One of the earliest expressions of this viewpoint was offered in an article that appeared
in the William and Mary Journal of Women and the Law in 1997. The authors reasoned that
adoption of the 27th Amendment challenged many of the assumptions about ratification generated
during the 20th century. Acceptance of the Madison Amendment by the Archivist and the
Administrator of General Services, as advised by the Justice Department87 and ultimately
validated by Congress, was said to confirm that there is no requirement that ratifications of
80
1 U.S.C. §106.
Archivist of the U.S., “U.S. Constitution, Amendment 27,” Federal Register, vol. 567, no. 97, (May 19, 1992), pp.
21187-21188.
82
“Madison Amendment,” Congress and the Nation, vol. VII, 1989-1992 (Washington, DC: Congressional Quarterly
Inc., 1993), p. 972. For additional examination of the role and authority of the Archivist, see Bernstein, “The Sleeper
Awakes: The History and Legacy of the Twenty-Seventh Amendment,” pp. 540-542.
83
H.Con.Res. 320, 102nd Congress, sponsored by Representative Jack Brooks.
84
S.Con.Res. 120, 102nd Congress, sponsored by Senator Robert Byrd and others.
85
S.Res. 298, 102nd Congress, sponsored by Senator Robert Byrd and others.
86
S.Con.Res. 120 and S.Res. 298, Congressional Record, vol. 138, pt. 9 (May 20, 1992), p. 11869; H.Con.Res. 320,
Congressional Record, vol. 138, pt. 9 (May 20, 1992), p. 12051. Senator Robert Byrd of West Virginia also introduced
S.Con.Res. 121 on May 19, 1992, to declare that the ratification periods for four other pending amendments had lapsed,
and that they were no longer viable. He did not, however, include the Equal Rights Amendment among them. The
resolution was referred to the Senate Judiciary Committee, but no further action was taken.
87
Office of Legal Counsel, U.S. Department of Justice, “Congressional Pay Amendment,” Memorandum Opinion for
the Counsel to the President, May 13, 1992, and November 2, 1992, at http://justice.gov/olc/congress/17.htm. See also
Michael Stokes Paulsen, “A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh
Amendment,” Yale Law Journal, vol. 103, no. 3 (December 1992), p. 680, at footnote 7.
81
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proposed amendments must be roughly contemporaneous.88 The authors went on to examine the
history of the seven-year time limit, concluding after a review of legal scholarship on the subject
that this device was a matter of procedure, rather than of substance, i.e., part of the body of the
amendment itself. As such it was “separate from the amendment itself, and therefore, it can be
treated as flexible.” By extending the original ERA deadline, Congress relied on its broad
authority over the amendment process, as provided in Article V.89
Finally, the authors asserted, relying on the precedent of the 27th Amendment, that “even if the
seven-year limit was a reasonable legislative procedure, a ratification after the time limit expired
can still be reviewed and accepted by the current Congress.... ”90 In their view, even if one
Congress failed to extend or remove the ratification deadline, states could still ratify, and a later
Congress could ultimately validate their ratifications.
Other observers question the value of the Madison Amendment as precedent. Writing in
Constitutional Commentary, Denning and Vile asserted that the 27th Amendment presented a poor
model for ERA supporters. Examining the amendment’s origins, they suggested that “the courts
and most members of Congress have tended to treat the 27th as a ‘demi-amendment,’ lacking the
full authority of the 26 that preceded it.”91 Reviewing what they characterized as unfavorable
interpretations of the Madison Amendment in various legal cases, the authors asked whether what
they referred to as the “jury rigged ratification of the ERA might result in its similar evisceration
by the judiciary that will be called upon to interpret it.”92 Similarly, a recent commentary in
National Law Journal asserted that, by blocking its own cost of living salary increases, Congress
itself has also persistently failed to observe the Madison Amendment’s requirements that “[n]o
law, varying the compensation for the services of the Senators and Representatives, shall take
effect, until an election of Representatives shall have intervened.”93
Constitutional scholar Michael Stokes Paulsen further questioned use of the 27th Amendment as
an example in the case of the proposed Equal Rights Amendment. He returned to the
contemporaneity issue, suggesting that the amending process
... should be occasions, not long, drawn-out processes. To permit ratification over a period of
two centuries is to erode, if not erase the ideal of overwhelming popular agreement.... There
is no assurance that the Twenty-seventh Amendment ever commanded, at any one time,
popular assent corresponding to the support of two-thirds of the members of both houses of
Congress and three-fourths of the state legislatures.94 (Emphases in the original.)
It could be further argued by opponents of proposed Equal Rights Amendment extension that,
whatever the precedent set by Congress in declaring the 27th Amendment to have been regularly
88
Allison L. Held, Sheryl L. Herndon, and Danielle M. Stager, “The Equal Rights Amendment: Why the ERA Remains
Legally Viable and Properly Before the States,” William and Mary Journal of Women and the Law, vol. 3, (no issue
number), 1997, p. 121.
89
Ibid., pp. 129-130.
90
Ibid., p. 131.
91
Denning and Vile, “Necromancing the Equal Rights Amendment,” p. 598. See also the discussion of the unique
circumstances of the 27th Amendment in The Constitution Annotated, “Article V, Amendment.”
92
Ibid., p. 599.
93
Eric Fish and Daniel Hemel, “Congress’s Unconstitutional Pay Freeze,” National Law Journal, January 30, 2012, at
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202540170443&slreturn=1.
94
Paulsen, “A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment,” p. 692.
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adopted, there is no precedent for Congress promulgating an amendment based on state
ratifications adopted after two ratification deadlines have expired.
The Role of the Supreme Court Decisions in Dillon v. Gloss and
Coleman v. Miller
By some measures, the action of the Archivist of the United States in announcing ratification of
the 27th Amendment, followed by congressional confirmation of its viability, superseded a body
of constitutional principle that had prevailed since the 1920s and 1930s. This corpus of theory and
political consideration arguably originated with the Supreme Court’s 1921 decision in Dillon v.
Gloss, the case in which the Court first enunciated the principle that conditions of ratification for
proposed constitutional amendments could be determined by Congress, and that the conditions
should be roughly contemporaneous.95 The Court concluded that, relying on the broad grant of
authority contained in Article V, Congress had the power, “keeping within reasonable limits, to
fix a definite period for the ratification.... ”96
At the same time, the Court noted that nothing in the nation’s founding documents touched on the
question of time limits for ratification of a duly proposed constitutional amendment, and asked
whether ratification would be valid at any time
... within a few years, a century or even a longer period, or that it must be had within some
reasonable period which Congress is left free to define? Neither the debates in the federal
convention which framed the Constitution nor those in the state conventions which ratified it
shed any light on the questions.97
Ultimately, however, the Court concluded that proposal of an amendment by Congress and
ratification in the states are both steps in a single process, and that amendments
... are to be considered and disposed of presently.... [A] ratification is but the expression of
the approbation of the people and is to be effective when had in three-fourths of the states,
there is a fair implication that it must be sufficiently contemporaneous in that number of
states to reflect the will of the people in all sections at relatively the same period, which of
course ratification scattered through a long series of years would not do.98
The need for contemporaneity was also discussed by the Court with regard to the congressional
apportionment amendment and the Madison Amendment, which remained pending in 1921. The
Court maintained that the ratification of these amendments so long after they were first proposed
would be “untenable.”99 Some scholars dispute the Court’s position in Dillon, however; Mason
95
Dillon v. Gloss, 256 U.S. 368 (1921). Dillon, arrested on a violation of the Volstead Act, asserted, among other
things, that the 18th Amendment was unconstitutional because Congress had included a ratification deadline in the body
of the amendment, an action for which no authority appeared in the Constitution.
96
Ibid.
97
Ibid.
98
Ibid.
99
Ibid. Justice Van Devanter, delivering the majority opinion, asserted: “That this is the better conclusion
[constitutional amendments lacking contemporaneousness ought to be considered waived] becomes even more manifest
when what is comprehended in the other view is considered; for, according to it, four amendments proposed long ago—
two in 1789, one in 1810 and one in 1861—are still pending and in a situation where their ratification in some of the
States many years since by representatives of generations now largely forgotten may be effectively supplemented in
(continued...)
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Kalfus, writing in The University of Chicago Law Review, claimed that reference to the
contemporaneity doctrine is to be found neither in the text of Article V nor in the deliberations of
the Philadelphia Convention.100
In Coleman v. Miller,101 the Supreme Court explicitly held that Congress had the sole power to
determine whether an amendment is sufficiently contemporaneous, and thus valid, or whether,
“the amendment ha[s] lost its vitality through the lapse of time.”102 In Coleman, the High Court
refined its holdings in Dillon, ruling that when it proposes a constitutional amendment:
•
Congress may fix a reasonable time for ratification;
•
there was no provision in Article V that suggested a proposed amendment would
be open for ratification forever;
•
since constitutional amendments were deemed to be prompted by some type of
necessity, they should be dealt with “presently”;
•
it could be reasonably implied that ratification by the states under Article V
should be sufficiently contemporaneous so as to reflect a nationwide consensus
of public approval in relatively the same period of time; and
•
ratification of a proposed amendment must occur within some reasonable time
after proposal.103
The Court additionally ruled, however, that if Congress were not to specify a reasonable time
period for ratification of a proposed amendment, it would not be the responsibility of the Court to
decide what constitutes such a period. The Court viewed such questions as essentially political
and, hence, nonjusticiable, believing that the questions were committed to and must be decided
by Congress in exercise of its constitutional authority to propose an amendment or to specify the
ratification procedures for an amendment.104
This “political question” interpretation of the contemporaneity issue is arguably an additional
element in the fundamental constitutional doctrine claimed by ERA advocates in support of the
amendment’s continuing viability.
Another observer suggests, however, that the constitutional foundation of the Supreme Court’s
ruling in Coleman v. Miller, and hence the political question doctrine, may have been affected by
the contemporary political situation. According to this theory, the Court in 1939 may have been
influenced by, and overreacted to, the negative opinion generated by its political struggles with
(...continued)
enough more States to make three-fourths by representatives of the present or some future generation. To that view few
would be able to subscribe, and in our opinion it is quite untenable.”
100
Kalfus, “Why Time Limits on the Ratification of Constitutional Amendments Violate Article V,” pp. 451-453.
101
Coleman v. Miller, 307 U.S. 433 (1939). This case concerned the Child Labor Amendment, and arose from a dispute
in the Kansas Senate over ratification procedure. This amendment was examined at greater length earlier in this report,
under “Congress Sets a Seven-Year Ratification Deadline.”
102
Ibid.
103
Ibid.
104
Ibid. Note, however, that in advising the Archivist on certifying ratification of the 27th Amendment, the Office of
Legal Counsel took the view that there was no role for Congress in promulgation of an amendment. See “Congressional
Pay Amendment,” Memorandum Opinion for the Counsel to the President.
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President Franklin Roosevelt over the constitutionality of New Deal legislation: “A later court,
bruised by its politically unpopular New Deal rulings, retreated somewhat from a dogmatic
defense of ratification time limits (as enunciated in Dillon v. Gloss).”105 Michael Stokes Paulsen
also questioned the Supreme Court’s decision in Coleman v. Miller, suggesting that the “political
question” doctrine could be interpreted to assert a degree of unchecked congressional authority
over the ratification process that is arguably anti-constitutional.106
Ancillary Issues
A range of subsidiary issues could also come under Congress’s purview should it consider revival
of the proposed Equal Rights Amendment or a signal to the states that it would consider
additional ratifications beyond the expired ratification deadline in the congressional resolutions.
Origins of the Seven-Year Ratification Deadline
One historical issue related to consideration of the proposed Equal Rights Amendment concerns
the background of the seven-year deadline for ratification that originated with the 18th
Amendment (Prohibition). The amendment was proposed in 1917, proceeded rapidly through the
state ratification process, and was declared to be adopted in 1919. During Senate consideration of
the proposal, Senator and, later, President Warren Harding of Ohio is claimed to have originated
the idea of a ratification deadline for the amendment as a political expedient, one that would
“permit him and others to vote for the amendment, thus avoiding the wrath of the ‘Drys’
(prohibition advocates), yet ensure that it would fail of ratification.”107 As it happened, the law of
unintended consequences intervened, as “[s]tate ratification proceeded at a pace that surprised
even the Anti-Saloon League, not to mention the calculating Warren Harding.”108 Proposed on
December 18, 1917, the amendment was declared to have been adopted just 13 months later, on
January 29, 1919.
Drawing from the apparent origin of the seven-year ratification deadline, ERA supporters might
suggest, as a supporting argument to their central assertions, that, far from being an immutable
historical element in the amendment process, bearing with it the wisdom of the founders, the
ratification time limit is actually the product of a failed political maneuver, and is, moreover, of
comparatively recent origin.
Opponents of extension might argue, however, that, whatever its origins, the seven-year
ratification deadline has become a standard element of nearly all subsequent proposed
amendments.109 They might further note that if ratification deadlines were purely political,
Congress would not have continued to incorporate them in nine subsequent proposals.110 In their
105
Kyvig, Explicit and Authentic Acts, p. 468.
Paulsen, “A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment,” pp.
706-707, 718-721. See also the discussion of congressional authority in The Constitution Annotated, Article V.
107
Kyvig, Explicit and Authentic Acts, p. 225.
108
Ibid., p. 224.
109
The 19th Amendment, providing for women’s suffrage, and the unratified Child Labor Amendment, were the last to
be proposed by Congress without a ratification deadline.
110
The nine proposals are the 20th, 21st, 22nd, 23rd, 24th, 25th, and 26th Amendments, and the proposed Equal Rights and
District of Columbia Voting Rights (Congressional Representation) Amendments.
106
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judgment, these time limits ensure that proposed constitutional amendments enjoy both broad and
contemporaneous support in the states, and that they arguably constitute an important element in
the checks and balances attendant to the amendment process.
Rescission
In addition to this question, the constitutional issue of rescission would almost certainly recur in a
contemporary revival of the proposed Equal Rights Amendment. As noted earlier in this report,
five states enacted resolutions purporting to rescind their previously adopted ratifications of the
proposed amendment. The U.S. District Court for the District of Idaho ruled in 1981 that states
had the option to rescind their instruments of ratification any time in the process prior to the
promulgation or certification of the proposed amendment, a decision that was controversial at the
time.111 The Supreme Court agreed to hear appeals from the decision, but after the extended ERA
ratification deadline expired on June 30, 1982, the High Court in its autumn term vacated the
lower court decision and remanded the decision to the District Court with instructions to dismiss
the case.112
It may be noted by ERA supporters, however, that since the Supreme Court ruled in Coleman v.
Miller that Congress has plenary power in providing for the ratification process, it may be
inferred from this holding that Congress also possesses dispositive authority over the question as
to the validity of rescission.
Speculation on potential future court action on this question is beyond the scope of this report, but
rescission arguably remains a potentially viable constitutional issue that could arise in response to
a revival of the proposed Equal Rights Amendment.
Congressional Promulgation of Amendments
Some observers have noted that, while Congress passed resolutions declaring the 14th, 15th, and
27th Amendments to be valid, congressional promulgation of amendments that have been duly
ratified is not necessary, and has no specific constitutional foundation. In his 1992 Memorandum
for the Counsel to the President concerning the 27th Amendment, Acting Assistant Attorney
General Timothy Flanigan, wrote that
Article V clearly delimits Congress’s role in the amendment process. It authorizes Congress
to propose amendments and specify their mode of ratification, and requires Congress, on the
application of the legislatures of two-thirds of the States, to call a convention for the
proposing of amendments. Nothing in Article V suggests that Congress has any further role.
Indeed, the language of Article V strongly suggests the opposite: it provides that, once
proposed, amendments “shall be valid to all Intents and Purposes, as Part of this
Constitution, when ratified by” three-fourths of the States.113 (Emphasis original in the
memorandum, but not in Article V.)
111
Kyvig, Explicit and Authentic Acts, pp. 451-416.
Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho, 1981), prob. juris. noted, 455 U.S. 918 (1982), vacated and
remanded to dismiss, 459 U.S. 809 (1982). See also “ERA Dies Three States Short of Ratification,” Congressional
Quarterly Almanac, 97th Congress, 2nd Session, 1992, pp. 377-378.
113
“Congressional Pay Amendment,” Memorandum Opinion for the Counsel to the President.
112
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The same viewpoint has been advanced by constitutional scholar Walter Dellinger. Addressing the
question shortly after the 27th Amendment was declared to have been ratified, he noted
An amendment is valid when ratified. There is no further step. The text requires no
additional action by Congress or anyone else after ratification by the final state. The creation
of a “third step”—promulgation by Congress—has no foundation in the text of the
Constitution.114
Supporters of the proposed Equal Rights Amendment, however, might refer again to the Supreme
Court’s ruling in Coleman v. Miller. If plenary authority over the amendment process rests with
Congress, advocates might argue, it also presumably extends to other issues that arise, including
provision for such routine procedures as promulgation of an amendment.
The Proposed District of Columbia Voting Rights (Congressional
Representation) Amendment—Congress Places a Ratification Deadline in the
Body of the Amendment
Congress has proposed only one constitutional amendment to the states since the proposed Equal
Rights Amendment began the ratification process in 1972, the District of Columbia Voting Rights
(Congressional Representation) Amendment. For this amendment, Congress returned to the
earlier practice of placing a deadline for ratification directly in the body of the proposal itself.
According to contemporary accounts, this decision was influenced by the nearly concomitant
congressional debate over the ERA deadline extension.
The District of Columbia is a unique jurisdiction, part of the Union, but not a state, and subject to
“exclusive Legislation in all Cases whatsoever ... by Congress.”115 Congress has exercised its
authority over the nation’s capital with varying degrees of attention and control, and through a
succession of different governing bodies, beginning in 1800. By the 1950s, the longdisenfranchised citizens of Washington, D.C., began to acquire certain rights. The 23rd
Amendment, ratified in 1961, established their right to vote in presidential elections. In 1967,
President Lyndon Johnson used his reorganization authority to establish an appointed mayor and
a city council, also presidentially appointed.116 In 1970, Congress provided by law for a nonvoting District of Columbia Delegate to Congress, who was seated in the House of
Representatives.117 Finally, in 1973, President Richard Nixon signed legislation that established
an elected mayor and council, while reserving ultimate authority over legislation to Congress.118
After more than a decade of change, proponents asserted that voting representation in Congress
proportionate to that of a state would be an important step in the progress toward full selfgovernment by the District of Columbia. In 1977, Representative Don Edwards of California,
Chairman of the House Judiciary Committee’s Subcommittee on Civil and Constitutional Rights,
114
Walter Dellinger, “Legitimacy of Constitutional Change: Rethinking the Amendment Process,” Harvard Law
Review, vol. 97, issue 2 (December 1983), p. 398.
115
U.S. Constitution, Article I, Section 8, clause 17. For additional information on the history of the governance of the
District of Columbia, see archived CRS Report 75-121, The Political Evolution of the District of Columbia: Current
Status and Proposed Alternatives, by Nelson Rimensnyder. Available to Members of Congress and staff from CRS.
116
U.S. President, Lyndon B. Johnson, Reorganization Plan Number 3 of 1967, 81 Stat. 948.
117
The District of Columbia Delegate Act, 84 Stat. 845.
118
The District of Columbia Self Government and Government Reorganization Act, 87 Stat. 774.
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introduced H.J.Res. 554 (95th Congress). The resolution, as introduced, comprised the following
text:
Resolved by the Senate and the House of Representatives of the United States of America in
Congress assembled (two thirds of each House concurring therein), That the following article
is proposed as an amendment to the Constitution of the United States, which shall be valid to
all intents and purposes as part of the Constitution when ratified by the legislatures of three
fourths of the several states within seven years of the date of its submission by the Congress:
Article—
Section 1. For purpose of representation in the Congress, election of the President, and
Article V of this Constitution, the District constituting the seat of government of the United
States shall be treated as though it were a state.
Section 2. The exercise of the rights and powers conferred under this article shall be by the
people of the District constituting the seat of government, and as shall be provided by the
Congress.
Section 3. The twenty-third article of amendment to the Constitution of the United States is
hereby repealed.
Extensive hearings were held in the subcommittee in 1977, and on February 15, 1978, the full
Judiciary Committee reported the measure to the House. The committee, however, adopted an
amendment offered by Representative M. Caldwell Butler of Virginia that incorporated the sevenyear ratification deadline directly in the body of the resolution, rather than in the preamble.
Congressional Quarterly reported that this provision
... was intended to ensure that the deadline could not be extended by a simple majority vote
of Congress. The Justice Department has said in the case of the Equal Rights Amendment
that Congress could extend the deadline for ratification by a simple majority vote because the
time limit was contained in the resolving clause rather than in the body of that amendment.119
Similarly, writing in Fordham Urban Law Journal during the same period, Senator Orrin Hatch
of Utah noted that:
Section 4 of the D.C. Amendment requires that ratification of the necessary three-fourths of
the states must occur within seven years of the date of its submission to the states. The
inclusion of this provision within the body of the resolution will avoid a similar controversy
to that which has arisen with respect to the time limit for ratification of the proposed “Equal
Rights Amendment.”120
During consideration of H.J.Res. 554 in the full House, language setting the ratification deadline
was deleted from the authorizing resolution, and the Butler amendment was incorporated in the
body of the proposal by voice vote as a new section:
119
“D.C. Representation,” Congressional Quarterly Almanac, 95th Congress, 2nd Session, 1978, vol. XXXIV (34)
(Washington: Congressional Quarterly Inc., 1979), p. 793.
120
Orrin G. Hatch, “Should the Capital Vote in Congress? A Critical Analysis of the Proposed D.C. Congressional
Representation Amendment,” Fordham Urban Law Journal, vol. 7 (issue 3), 1978, p. 483.
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Section 4. This article shall be inoperative, unless it shall have been ratified as an amendment
to the Constitution by the legislatures of three-fourths of the States within seven years from
the date of its submission.121
The amendment passed the House on March 2, 1978, by a margin of 289 to 127, 11 votes more
than the two-thirds constitutional requirement.122 The Senate took up the House-passed resolution
on August 16, 1978. During four days of debate, it rejected a wide range of amendments, voting
to adopt H.J.Res. 554 on August 22 by a margin of 67 to 32, one vote more than the constitutional
requirement.123
Sixteen states,124 22 short of the constitutionally-mandated three fourths requirement, ultimately
voted to ratify the amendment before it expired on August 2, 1985, seven years following
passage.
Concluding Observations
The arguments and constitutional principles relied on by ERA supporters to justify the revival of
the proposed Equal Rights Amendment include, but may not be limited to, the following:
•
Article V, they assert, grants exceptionally broad discretion and authority over the
constitutional amendment process to Congress.
•
In their interpretation, the example of the 27th Amendment suggests that there is
no requirement of contemporaneity in the ratification process for proposed
constitutional changes.
•
ERA proponents claim that the Supreme Court’s decision in Coleman v. Miller
gives Congress wide discretion in setting conditions for the ratification process.
•
Far from being sacrosanct and an element in the founders’ “original intent,” the
seven-year deadline for amendments has its origins in a political maneuver by
opponents of the 18th Amendment authorizing Prohibition.
•
The decision of one Congress in setting a deadline for ratification of an
amendment does not constrain a later Congress from rescinding the deadline and
reviving or acceding to the ratification of a proposed amendment.
Against these statements of support may be weighed the cautions of other observers who argue as
follows:
•
The 27th Amendment is a questionable model for efforts to revive the proposed
Equal Rights Amendment; unlike the proposed amendment, it was not
121
“District of Columbia Representation in Congress,” Congressional Record, vol. 124, part 4 (March 2, 1978), p.
5263.
122
Ibid., pp. 5272-5273.
123
“District of Columbia Representation in Congress,” Congressional Record, vol. 124, part 20 (August 22, 1978), p.
27260.
124
Ratifications by year: 1978: Michigan, New Jersey, Ohio; 1979: Connecticut, Massachusetts, Minnesota, Wisconsin;
1980: Hawaii, Maryland; 1989: Maine, Oregon, Rhode Island, West Virginia; 1984: Delaware, Louisiana, Iowa.
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encumbered by two expired ratification deadlines. Moreover, Congress has
generally ignored its provisions since ratification.
•
Even though the proposed Equal Rights Amendment received an extension,
supporters were unable to gain approval by three-fourths of the states. Opponents
suggest that a “third bite of the apple” is arguably unfair and, if not
unconstitutional, at least contrary to the founders’ intentions.
•
Revivification opponents caution ERA supporters against an overly broad
interpretation of Coleman v. Miller, which, they argue, may have been be a
politically influenced decision.
•
Congress implicitly recognized its misjudgment on the ratification deadline for
the proposed Equal Rights Amendment when it incorporated such a requirement
in the text of the proposed District of Columbia Voting Rights (Congressional
Representation) Amendment.
•
The rescission issue was not decided in the 1980s and remains potentially open to
congressional or judicial action if the proposed Equal Rights Amendment is
reopened for further ratifications.
Congress could revisit the contending points raised by different analysts if it considers legislation
that would seek specifically to revive the proposed Equal Rights Amendment, or to accede the
additional state ratifications.
Alternatively, Congress could propose a “fresh start” equal rights amendment; such proposals
have been introduced regularly since the original ERA time limit expired in 1982. This approach
might avoid the controversies that have been associated with repeal of the deadlines for the 1972
ERA, but starting over would present a fresh constitutional amendment with the stringent
requirements provided in Article V: approval by two-thirds majorities in both houses of Congress,
and ratification by three-fourths of the states. It would, however, be possible to draft the proposal
without a time limit, as is the case with S.J.Res. 10 in the 113th Congress. If approved by
Congress in this form, the proposed amendment would, as was the case with the Madison
Amendment, remain current, viable, and thus eligible for ratification, for an indefinite period.
Author Contact Information
Thomas H. Neale
Specialist in American National Government
[email protected], 7-7883
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NB:
THREE STATES MORE STRATEGY
START-OVER STRATEGY
Typified by S.J.Res.15. Already, 35 states
have ratified the ERA. Three more states
need to ratify, and Congress must repeal its
original timeline to reach the 3/4s required
by the U.S. Constitution.
Typified by S.J.Res.16. This plan will reintroduce a version of the Equal Rights
Amendment in Congress, and start the
process from scratch. This strategy also allows
changes to the original text.
LITIGATION STRATEGY
STATE-BY-STATE STRATEGY
The Supreme Court interprets the equal
protection clause to include gender as a
protected class warranting the strict scrutiny
given to race and nationality. Also known as
a “De facto ERA.” Typified by US v. Virginia
and Craig v. Boren.
Currently, 24 state constitutions have some
guaranty of gender equality, most recently
Oregon state in 2014. This piecemeal strategy
was used in obtaining women's suffrage.
These strategies are not mutually exclusive, and may, in fact, be complementary
Sources: Sarah M. Stephens, "At the End of Our Article III Rope: Why we still need the Equal Rights Amendment" 80 Brooklyn L.R. 397
[2015]; Linda Wharton, "State Equal Rights Amendments Revisited: Evaluating Their Effectiveness in Advancing Protection Against Sex
Discrimination". 36 Rutgers L.J. 201 (2005); and www.congress.gov.
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More ERA Info
A Short History of E.R.A.
The Debates About ERA
The Houston Debacle
ERA Referenda
ERA Time Extension
ERA Tries in Congress Again
The Effort for State ERAs
A Short History of E.R.A.
The Equal Rights Amendment, a proposed amendment to the United States Constitution, was born in the era of the women's
suffrage amendment and first introduced into Congress in 1923. For nearly 50 years, all those Congresses had the good
judgment to leave ERA buried in Committee. Almost no one of importance or prominence in either political party supported it.
During most of those years, ERA had attached to it the Hayden Clause which read: "Nothing in this Amendment will be
construed to deprive persons of the female sex of any of the rights, benefits, and exemptions now conferred by law on
persons of the female sex." Then, as now, the advocates were unwilling to compromise for anything less than a doctrinaire
equality, and so ERA went nowhere.
In 1971, when feminism first rushed onto the scene in the United States, a little band of women stormed the corridors of
Congress and demanded the discharge from committee of the long­dormant Equal Rights Amendment. The House passed
ERA on October 12, 1971, after rejecting the Wiggins Amendment which would have exempted women from "compulsory
military service" and which also would have preserved other laws "which reasonably promote the health and safety of the
people." Only 23 Congressmen voted no, of whom one was the senior female member, Representative Leonor Sullivan (D­
MO), who made a strong speech opposing ERA because it would harm the family.
In the Senate, Senator Sam J. Ervin, Jr., (D­NC) proposed nine separate amendments to ERA to protect the traditional rights
of women. Every one was defeated on a roll­call vote on March 21 and 22, 1972. These nine amendments established the
legislative history that ERA was intended to do exactly what the Ervin Amendments would have prevented ERA from doing.
The Ervin amendments would have exempted women from compulsory military service and from combat duty; they would
have protected the traditional rights of wives, mothers and widows, and preserved the responsibility of fathers to support their
children; they would have preserved laws that secure privacy to males and females; they would have continued the laws that
make sexual offenses punishable as crimes. All these modifying clauses were defeated. When ERA was passed in strict,
absolute language, only nine Senators voted "no."
Congress sent ERA out to the states on March 22, 1972. Within twelve months, 30 states had ratified ERA. Then the
disillusionment set in. In the next six years, only five more states ratified ERA, but five of the 30 states rescinded their
previous ratifications of ERA, leaving a net score of zero for six years of lobbying for ERA. The five states that rescinded
their previous ratifications were:
Nebraska
Tennessee
Idaho
Kentucky
South Dakota
3/15/73
4/23/74
2/08/77
3/16/78
3/01/79
The following 15 states never ratified ERA:
Alabama
Arizona
Arkansas
Florida
Georgia
Illinois
Louisiana
Mississippi
Missouri
Nevada
North Carolina
Oklahoma
South Carolina
Utah
Virginia
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Most of the 15 states which never ratified ERA were forced by the ERA advocates to vote on ERA again and again. The
Illinois Legislature voted on ERA every year from 1972 through 1982, the Florida Legislature nearly every year, the North
Carolina and Oklahoma Legislatures every two years. Most of these votes were highly controversial, intensely debated, with
much media coverage and many spectators present.
During the ratification period, ERA was enthusiastically supported by 99 percent of the media, the Gerald Ford and Jimmy
Carter Administrations, most public officials at every level of government, and many wealthy national organizations. ERA
enjoyed the political momentum of what appeared to be inevitable victory.
A small group of women in 1972, under the name "Stop ERA," took on what seemed to be an impossible task. In 1975, they
founded "Eagle Forum" ­ the genesis of the pro­family movement, a coming together of believers of all faiths who, for the first
time, worked together toward a shared political goal. Eagle Forum volunteers persevered through the years and led the
movement to final victory over ERA.
The last state to ratify ERA was Indiana in January 1977. There have been perhaps 25 different votes on ERA since that time
(in legislatures, committees, referenda, and Congress), but Indiana was ERA's last success.
The Debates About ERA
The Equal Rights Amendment was presented to the American public as something that would benefit women, "put women in
the U.S. Constitution," and lift women out of their so­called "second­class citizenship." However, in thousands of debates,
the ERA advocates were unable to show any way that ERA would benefit women or end any discrimination against them.
The fact is that women already enjoy every constitutional right that men enjoy and have enjoyed equal employment
opportunity since 1964.
In the short term, clever advertising and packaging can sell a worthless product; but, in the long term, the American people
cannot be fooled. ERA's biggest defect was that it had nothing to offer American women.
The opponents of ERA, on the other hand, were able to show many harms that ERA would cause.
1. ERA would take away legal rights that women possessed ­ not confer any new rights on women.
A. ERA would take away women's traditional exemption from military conscription and also from military combat
duty. The classic "sex discriminatory" laws are those which say that "male citizens of age 18" must register for
the draft and those which exempt women from military combat assignment. The ERAers tried to get around this
argument by asking the Supreme Court to hold that the 14th Amendment already requires women to be drafted,
but they lost in 1981 in Rostker v. Goldberg when the Supreme Court upheld the traditional exemption of women
from the draft under our present Constitution.
B. ERA would take away the traditional benefits in the law for wives, widows and mothers. ERA would make
unconstitutional the laws, which then existed in every state, that impose on a husband the obligation to support
his wife.
2. ERA would take away important rights and powers of the states and confer these on other branches of government
which are farther removed from the people.
A. ERA would give enormous power to the Federal courts to decide the definitions of the words in ERA, "sex" and
"equality of rights." It is irresponsible to leave it to the courts to decide such sensitive, emotional and important
issues as whether or not the language applies to abortion or homosexual rights.
3. Section II of ERA would give enormous new powers to the Federal Government that now belong to the states. ERA
would give Congress the power to legislate on all those areas of law which include traditional differences of treatment
on account of sex: marriage, property laws, divorce and alimony, child custody, adoptions, abortion, homosexual laws,
sex crimes, private and public schools, prison regulations, and insurance. ERA would thus result in the massive
redistribution of powers in our Federal system.
4. ERA's impact on education would take away rights from women students, upset many customs and practices, and
bring government intrusion into private schools.
A. ERA would force all schools and colleges, and all the programs and athletics they conduct, to be fully
coeducational and sex­integrated. ERA would make unconstitutional all the current exceptions in Title IX which
allow for single­ sex schools and colleges and for separate treatment of the sexes for certain activities. ERA
would mean the end of single­sex colleges. ERA would force the sex integration of fraternities, sororities, Boy
Scouts, Girl Scouts, YMCA, YWCA, Boys State and Girls State conducted by the American Legion, and
mother­daughter and father­son school events.
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B. ERA would risk the income tax exemption of all private schools and colleges that make any difference of
treatment between males and females, even though no public monies are involved. ERA is a statement of
public policy that would apply the same rules to sex that we now observe on race, and it is clear that no school
that makes any racial distinctions may enjoy tax exemption.
5. ERA would put abortion rights into the U.S. Constitution, and make abortion funding a new constitutional right. Roe v.
Wade in 1973 legalized abortion, but the fight to make abortion funding a constitutional right was lost in Harris v.
McRae in 1980. The abortionists then looked to ERA to force taxpayer funding. The American Civil Liberties Union
filed briefs in abortion cases in Hawaii, Massachusetts, Pennsylvania and Connecticut arguing that, since abortion is a
medical procedure performed only on women, it is "sex discrimination" within the meaning of the state's ERA to deny
tax funding for abortions. In the most recent decision, the Connecticut Superior Court ruled on April 19, 1986 that the
state ERA requires abortion funding. Those who oppose tax funding of abortions demand that ERA be amended to
prevent this effect, but ERA advocates want ERA only so long as it includes abortion funding.
6. ERA would put "gay rights" into the U.S. Constitution, because the word in the Amendment is "sex" not women.
Eminent authorities have stated that ERA would legalize the granting of marriage licenses to homosexuals and
generally implement the "gay rights" and lesbian agenda. These authorities include the Yale Law Journal, the leading
textbook on sex discrimination used in U.S. law schools, Harvard Law Professor Paul Freund, and Senator Sam J.
Ervin, Jr. Other lawyers have disputed this effect, but no one can guarantee that the courts would not define the word
"sex" to include "orientation" just as they have defined "sex" 'to include pregnancy.
7. In the final years of the ERA battle, two new arguments appeared. Both were advanced by the ERA advocates, but
they quickly became arguments in the hands of the ERA opponents.
A. ERA would require "unisex insurance," that is, would prohibit insurance companies from charging lower rates for
women, even though actuarial data clearly show that women, as a group, are entitled to lower rates both for
automobile accident insurance and life insurance. This is because women drivers have fewer accidents and
women live longer than men. Most people found it a peculiar argument that "women's rights" should include the
"right" to pay higher insurance rates.
B. ERA would eliminate veterans' preference. This rests on the same type of legal argument as the abortion
funding argument: since most veterans are men, it is claimed that it is "sex discriminatory" to give them
benefits. Naturally, this argument was not acceptable to the veterans, and their national organizations lobbied
hard against ERA.
The Houston Debacle
Realizing that the seven­year time period allowed for ratification was running out, the ERA advocates in 1977 persuaded
Congress to give them $5 million, supposedly to celebrate International Women's Year. An IWY conference was held in each
of the 50 states, culminating with a national convention in Houston in November 1977. Every feminist of any fame was a
participant in this Conference, including Gloria Steinem, Betty Friedan, Eleanor Smeal, and Bella Abzug, who was the
chairman.
The conferences were all run as forums promoting ERA and the feminist agenda. Only pro­ERA speakers were permitted on
the platforms of the 50 state conferences and the Houston national conference. The media coverage was immense, and the
Houston platform was graced by three First Ladies: Rosalynn Carter, Betty Ford, and Ladybird Johnson.
At the IWY event in Houston, the ERAers, the abortionists, and the lesbians made the decision to march in unison for their
common goals. The conference enthusiastically passed what the media called the "hot button" issues: ERA, abortion and
abortion funding, and lesbian and gay rights. The IWY Conference doomed ERA because it showed the television audience
that ERA and the feminist movement were outside the mainstream of America. ERA never passed anywhere in the post­IWY
period.
ERA Referenda
The ERA advocates tried to blame the defeat of,ERA on a few men in several state legislatures. But when ERA was
submitted to a vote of the people it nearly always lost. The voters in the following seven states rejected ERA in statewide
referenda. (Nevada was an advisory referendum on the Federal ERA; the others were State ERA referenda.)
Wisconsin
11/73
New York
11/75
New Jersey 11/75
(60,000 majority against)
(420,000 majority against)
(52% against)
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Nevada
Florida
Iowa
Maine
Vermont
Iowa
11/78
11/78
11/80
11/84
11/86
11/92
(66% against)
(60% against)
(55% against)
(64% against)
(51% against)
(51% against)
ERA Time Extension
The original ERA resolution which passed Congress on March 22, 1972 included the following preamble preceding the three
sections of the text of ERA:
"Resolved by the Senate and House of representatives of the United States of America in Congress assembled
(two­thirds of each House concurring therein), that the following article is proposed as an amendment to the
Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution
when ratified by the legislatures of three­fourths of the several States within seven years from the date of its
submission by the Congress.­
"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 "
When the end of the seven years approached and it became clear that three­fourths of the states (38 states) would not ratify
ERA, Congress passed an ERA Time Extension resolution to change "within seven years" to 10 years, 3 months, 8 days, 7
hours and 35 minutes, so that the time limit was extended to June 30, 1982 (instead of expiring on March 22, 1979).
In an additional piece of chicanery, Congress passed the ERA Time Extension by only a simple majority vote instead of by
the two­thirds majority vote required by Article V of the U.S. Constitution for all constitutional amendments.
The ERA advocates' strategy of a Time Extension was to lock in all those states which had ratified in 1972 and 1973, while
money and media were concentrated on ratification efforts in the non­ratified states where they thought ERA had the best
chance (in this order): Illinois, Florida, North Carolina, Oklahoma, Georgia, and Virginia. This ratification effort was assisted by
a boycott of all states that had not ratified ERA, designed particularly to cause economic harm to the convention cities in the
unratified states.
The American people were so turned off by the unfairness of the Time Extension ­ and the refusal of the ERA proponents to
recognize the legality of the rescissions ­ that not a single state ratified ERA after the Time Extension was passed by
Congress in 1978.
After a two­and­a­half­year lawsuit, the U.S. District Court ruled on December 23, 1981 in Idaho v. Freeman that the ERA
Time Extension voted by Congress was unconstitutional and that the rescissions of ERA were constitutional. The U.S.
Supreme Court did not decide the appeal of this case until after the expiration of ERA on June 30, 1982, at which time the
Supreme Court ruled that the case was moot and no longer needed to be decided.
Despite the Time Extension, the ERA opponents held a big dinner in Washington, D.C., called "The End of an ERA," on
March 22, 1979, to celebrate the constitutional termination of ERA. This was the end of the seven­year time limit set by
Congress when ERA was sent to the states in 1972.
As a practical matter, March 22, 1979 was not the end of ERA ­ since the unfair Time Extension forced three more years of
emotional battles in many state legislatures. But March 22, 1979 was truly "the end of an era" ­ the end of the era of
conservative defeats.
Up until that time, conservatives had lost so many battles that they had a defeatist attitude. The proclaimed victory over ERA
showed the conservatives and pro­family activists that they could win an important political battle ­ despite overwhelming
odds and the opposition of nearly all the media and most elected officials at every level of government. Since 1979, the
conservatives and pro­family movement have had a tremendous series of victories, highlighted by the election and landslide
reelection of Ronald Reagan.
On June 30, 1982, the ERA opponents held a second "burial" of the ERA at a large dinner in Washington called "The Rainbow
Dinner." On that day, no one could deny the fact that the proposed federal ERA was truly dead.
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ERA Tries in Congress Again
In January 1983, the ERA advocates re­introduced ERA into the U.S. Congress with the full support of Speaker Tip O'Neill.
After a year of intensive lobbying, ERA came to a vote in the House on November 15, 1983, and 147 Congressmen voted no.
That put ERAers six votes short of the two­thirds majority required to send ERA out to the states again.
What killed ERA in 1983 was the House Judiciary "markup" on November 9, an all­day session with 5­1/2 hours of calm and
rational debate. No television lights were on, so no one was posturing for the media. Nine amendments to ERA were offered
in that Committee. Although all nine were defeated, each of the nine amendments received 12 or 13 "yes" votes. It is well
known in Washington that the Judiciary Committee is so liberal that any motion which gets a dozen "yes" votes there is sure
to win on the House floor.
Rep. James Sensenbrenner's (R­WI) amendment would have made ERA abortion­neutral. On October 20, 1983, the
Congressional Research Service had issued "a legal analysis of the potential impact of ERA on abortion" and concluded on
page 61 that "ERA would reach abortion and abortion­funding situations." That would mean that ERA would invalidate the
Hyde Amendment and mandate taxpayer­funding of abortions. The ERA advocates could not deny this effect, but they were
unwilling to separate the ERA and abortion questions by voting for the Sensenbrenner amendment.
Rep. Sam Hall's (D­TX) amendment would have prevented ERA from drafting women. The opponents of the Hall amendment
admitted that ERA would draft women just like men, but argued that women want this kind of equality.
Rep. Clay Shaw (R­FL) offered an amendment to prevent ERA from requiring women to serve in military combat just like
men. Rep. Patricia Schroeder (D­CO) argued that women deserve their career opportunities to serve in combat just like men.
Rep. George Gekas (R­PA) offered an amendment to prevent ERA from wiping out veterans' preference. At the House
Judiciary Committee hearing on September 14, 1983, League of Women Voters president Dorothy S. Ridings had testified
that ERA would outlaw veterans' preference by overturning the 1979 Supreme Court case of Massachusetts v. Feeney. Both
the Veterans of Foreign Wars and the American Legion objected to this effect.
Rep. Harold Sawyer (R­MI) offered an amendment to prevent ERA from wiping out the ability of insurance companies to
charge lower insurance rates to women for automobile accident and life insurance policies. The ERA advocates admit that
one of their goals is to force all insurance to be "unisex" regardless of accident and actuarial tables.
Rep. Tom Kindness (R­OH) offered an amendment to put the seven­year time limit on ERA in the text of the Amendment
instead of in the preamble (in order to prevent another constitutional dispute about a time extension). Then he offered another
amendment to give the states concurrent enforcement power, as well as the Federal Government. The ERA advocates
opposed both purposes.
The biggest surprise of the day was the amendment offered by Rep. Dan Lungren (R­CA) to exempt religious schools from
the effect of ERA. This amendment was made necessary by the 1983 Supreme Court decision in Bob Jones University v.
United States, which ruled that the Internal Revenue Service can withdraw tax exemption from any school operated by a
church which has any regulation contrary to public policy.
If ERA means anything at all, it means a "public policy" against sex discrimination. So, if the ruling of the Bob Jones case
were applied under ERA, the result almost certainly would be that all religious schools run by churches and synagogues that
do not ordain women, or which treat men and women differently, would lose their tax exemption. Thus, ERA would put at risk
the tax exemption of thousands of Catholic, Protestant, and Jewish schools all over the country. Most Congressmen are not
willing to tell their constituents that religious schools will lose their tax exemption.
At the end of the day, the diehard ERAers went crying to Speaker O'Neill, imploring him to devise a way to prevent these nine
amendments from being offered on the House floor.
So, Speaker O'Neill brought ERA to a vote of the House on November 15,1983 under a procedure called "suspension of the
rules." This meant that no amendments of any kind could be offered. In a dramatic roll call, ERA lost by a six­vote margin.
This vote made it clear that Congress will never pass ERA. Politically, it is as dead as the Prohibition Amendment.
The Effort for State ERAs
At the same time that the ERA advocates were trying again in Congress in 1983, they sought to rebuild their momentum
through a series of state ERAS.
In Wisconsin, the state legislators tried to assist this project by adding to the text of the proposed state ERA some additional
language that would prevent it from being used to mandate abortion funding or gay rights. To the amazement of those
legislators, the leading ERA advocates (including the National Organization for Women, the League of Women Voters, and the
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American Civil Liberties Union) publicly opposed ERA in this form, and so the Wisconsin ERA died. This experience makes it
clear that the ERA advocates want ERA primarily, and perhaps solely, to achieve abortion funding and gay rights.
A similar scenario took place in Minnesota. After a state ERA was proposed in the spring of 1983, a committee added a
section to make it abortion­neutral. The next day the ERA sponsor withdrew ERA. The ERA advocates obviously do not want
ERA unless it includes their hidden agenda.
ERA advocates then chose Maine as the most advantageous state to "start the ball rolling" for ERA again. They had the full
support of the media, all public officials of both parties, and a cooperative legislature which passed ERA without the
encumbrance of any additional language. The referendum to add a state ERA to Maine's constitution took place on November
6, 1984. When the votes were counted, 64 percent of the people had voted no. ERA advocates tried again with a referendum
for a state ERA in Vermont in 1986 and a second referendum in Iowa in 1992, but they lost both times.
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FOR IMMEDIATE RELEASE Contact: Bettina Hager -­‐ (973) 876-­‐3826 / [email protected] Carol Jenkins -­‐ (646) 596-­‐2550 / [email protected] BREAKING: Americans—by 94%-­‐-­‐ Overwhelmingly Support the Equal Rights Amendment (ERA) Actress Patricia Arquette to testify on the ERA at the DNC Platform Committee hearing in Phoenix, Arizona on June 18 New York, NY -­‐ June 17 2016 – Today the ERA Coalition/ Fund for Women’s Equality released a poll finding near-­‐universal support for amending the United States Constitution to include protections for women. The ERA is a proposed amendment to the Constitution that would expressly prohibit discrimination on the basis of sex. 80% of those polled mistakenly believe that men and women are already guaranteed equal rights in the U.S. Constitution. As 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.” 94% of those polled said they would support an amendment to the U.S. Constitution that guarantees equal rights for both men and women. This extraordinary level of support was expressed by both men and women -­‐ 90% of men and 96% of women polled. And when identified by political party, Democrats, Republicans and Independents all overwhelming support the amendment as well: 97% of Democrats, 90% of Republicans, and 92% of Independents. “In research terms this is as close to unanimous as support could possibly be,” says Dan Goldstein, CSO of db5 -­‐ the market research firm that conducted the poll, “there’s nothing 94% of Americans agree on -­‐ except this issue it would seem.” Jessica Neuwirth, President of the ERA Coalition/Fund for Women’s Equality, which is building a national network of organizations and activists working for the passage and ratification of the ERA, notes, “Our work on the ground confirms the findings of this poll: women and men around the country and across all party lines are ready—and eager—for the ERA.” CBA158
Patricia Arquette, an activist for women’s equality and committed ERA supporter, will testify in Phoenix, Arizona on Saturday, June 18, 2016 at a DNC Platform Committee hearing, where she will urge the party to make the ERA a priority. “All of the things we want for women, including equal pay and effective legal recourse for gender-­‐based violence, are in the ERA,” Arquette says. “This polling shows the country is with us—we need Congress to catch up.” First introduced almost 100 years ago, in 1923, the ERA was passed by Congress in 1972: Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. This amendment was sent to the states for ratification with a seven year deadline that was extended to ten years. By the expiration of the deadline in 1982, 35 states had ratified the amendment, just three states short of the 38 states needed to put the ERA in the Constitution. Since then, the ERA has been reintroduced in Congress every session. Congress has not once voted on it over the past thirty years. Current efforts to put the ERA in the Constitution are being led in Congress by Rep Carolyn Maloney, D-­‐NY, Rep. Cynthia Lummis, R-­‐WY, and Jackie Speier, D-­‐CA. “The ERA is the only way to eliminate the wage gap and ensure women are paid the same as men. It’s that simple. Without the ERA, women’s rights and equality are not guaranteed,” says Rep. Maloney. “The ERA Coalition’s poll shows that all Americans – regardless of gender, party or age – are united in their support for equality for women and men under the Constitution.” Rep. Speier adds, “The poll shows what many of us have known all along -­‐ the American public supports the ERA and gender equality. Hopefully this will wake up Congress to this reality so we can finally pass the ERA.” Rep Bonnie Watson-­‐Coleman, D-­‐NJ, one of the conveners of the Congressional Caucus on Black Women and Girls, has begun monthly Special Order sessions on the floor of Congress to gather support for the Equal Rights Amendment. Noting the broad base of support for the ERA indicated by the poll, she says, “It’s time for a coalition of men and women, Democrats and Republicans, people of color and more to join together and support this amendment. I’m committed to seeing that happen -­‐ it’s clear American opinion is on our side.” The dba5 poll was commissioned by enso, an agency creating social impact though mission-­‐
driven creativity, on behalf of the ERA Coalition/Fund for Women’s Equality. The poll was conducted in October 2015 using an online survey. Respondents were recruited through Critical Mix and accredited by True Sample to guarantee the quality of the survey’s participants. A nationally representative sample of 1,017 people took part in the survey. The data was then weighted, to ensure that it was proportional to and representative of the population’s political affiliation. The ERA Coalition and the Fund for Women’s Equality are sister organizations, founded in 2014 to work respectively for passage and ratification of the Equal Rights Amendment and for greater public understanding of the need for equal treatment of women under the law. ***** CBA159
From a poll conducted by DB5, commissioned by enso on behalf of the ERA Coalition/ Fund for Women’s
Equality. Contact: [email protected], 202-459-9939, www.eracoalition.org
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From a poll conducted by DB5, commissioned by enso on behalf of the ERA Coalition/ Fund for Women’s
Equality. Contact: [email protected], 202-459-9939, www.eracoalition.org
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Illinois state bar association
NovemBER 2015
vol 21 no. 3
The Catalyst
The newsletter of the Illinois State Bar Association’s Standing Committee on Women and the Law
Myths about the ERA debunked
By Cindy g. buys
This October, a post on ISBA listserv
sparked spirited debate. There were
over 70 comments made in the span
of a week—all about the Equal Rights
Amendment (ERA), which states in
relevant part: “Equality of rights shall
not be denied or abridged by the United
States or any state on account of sex.”
That conversation inspired the following
collection of common misperceptions
about the ERA and recent efforts to restart
the ratification process.
1. Aren’t the sexes equal?
Constitutionally speaking, no.
To quote Justice Antonin Scalia,
“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’s
what it meant.”1 More troubling, 72% of
Americans mistakenly believe there is
a constitutional guarantee that women
and men must be treated equally.2 While
some federal legislation has tackled
discrimination, the U.S. Constitution
lacks an affirmative declaration of equality
between the sexes. And the legislation that
does exist is not comprehensive and leaves
significant gaps in coverage.3 These gaps
help explain why women still make only
77 cents for every dollar earned by a man
for the same work.
If read plainly, the 14th
amendment would seem to encompass
gender discrimination as it mandates
no “state shall deprive . . . any person
within its jurisdiction equal protection of
the laws,” but that is not how it has been
applied historically. Despite decades of
challenges, the U.S. Supreme Court did
not treat sex-based classifications as even
quasi-suspect until the 1971 case Reed v.
Reed, striking down estate administration
laws that preferred men. Justice Ruth
Bader Ginsberg spent most of her career
trying to get the Supreme Court to see
gender in the 14th Amendment, but this
goal remains unfinished business.4
2. Didn’t the ERA die?
The ERA was initially introduced into
Congress in 1923. In 1972, it passed both
houses of Congress and was sent to the
state legislatures for ratification, but fell
three states short of ratification prior to the
Congressionally-imposed deadline.5
There are many unresolved
constitutional questions regarding
the process for adoption of the ERA. Currently, Congress has before it two
options regarding the ERA. The first
option proposes to re-start the amendment
process anew.6 The second and easier
option is a resolution to remove the time
limit on the original amendment.7 This
second option is commonly called the
“three state strategy” because 35 states
have ratified and 38 states are required. S.J.
Res. 15, which would re-start the process,
has 35 co-sponsors as of November 1,
2015, including Senators Durbin and Kirk.
H.J.Res. 51 or the “three-state strategy”
has 162 co-sponsors including nine from
Illinois.
The 27th Amendment to the U.S.
Constitution (congressional raises) was
ratified in 1992, more than 200 years
after it was first introduced. The so-called
Madison Amendment’s path to ratification
is the inspiration for the three-state
strategy. Proponents maintain that the
time limit Congress added to the process
is either unconstitutional because it is
an additional burden that is not found
in Article V of the U.S. Constitution, or
the time limit can be amended again by
Congress.8
At the state government level, Arizona,
Florida, Missouri, Nevada, North Carolina
and Virginia have pending bills for
ratification. In 2014, the Illinois Senate
passed a resolution of ratification; however,
the Illinois House failed to take up the
measure before the legislative session
expired.9 There are plans to reintroduce
the proposal next legislative session.
3. Isn’t the ERA just symbolic?
Symbols can be powerful as shorthand
for complex ideas. The ERA is not just
symbolic, but would be law, conveying
enforceable rights. As Jessica Neuwirth
concludes in her book, Equal Means Equal,
“law is a formal expression of public policy
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▼
The Catalyst
November 2015 / vol 21 / no. 3
that plays a critical role in advancing social
norms . . . an Equal Rights Amendment will
promote public understanding that all men
and women are created free and equal in
dignity and in rights, and should be treated
as such.”
Enactment of the ERA will make
discrimination based on sex more difficult.
Currently, the Supreme Court reviews
classifications based on sex or gender
under “intermediate scrutiny” rather than
“strict scrutiny” as is used for classifications
based on race, ethnicity or alienage. The
intermediate standard was first introduced
in 1976 with Craig v. Boren.10 That case
struck down a law that allowed women,
but not men, to purchase 3.2% alcohol
beer. The Supreme Court found this gender
distinction to be unfair. In subsequent
application, intermediate scrutiny has
proven to be an elusive test, heavily
influenced by a court’s sense of proper
gender roles.11
It is possible that if the ERA were
passed, the Supreme Court would apply
strict scrutiny to sex or gender-based
classifications. Strict scrutiny is a more
predictable standard than intermediate
scrutiny.12 The government must show
a compelling interest and the law must
be narrowly tailored to achieve that
compelling government interest, a more
difficult burden to meet.
4. Isn’t this just more partisan
politics?
While the ERA seems to be more
popular with Democratic legislators at
present, there was a period when the ERA
was embraced by leaders in both parties. In
fact, the first presidents to support the ERA
were republicans—Eisenhower, Nixon and
Ford. Locally, ERA supporters include State
Senate Minority Leader Christine Radogno,
Senator Mark Kirk, and the late Judy Barr
Topinka. In the 70s, social conservatives
opposed the ERA as a threat to the
traditional role of women. But many of the
concerns they raised, such as integration of
the armed forces and same-sex marriage,
have come to pass without the ERA.
5. Rauner will just veto to it.
A joint resolution does not require
the Governor’s approval. However, a
supermajority of 3/5 of both houses is
required by Article 14, Section 4 of the
Illinois Constitution.
6. The ERA will burden businesses.
Illinois has already enshrined the ERA
in its state constitution. Article 1, Section
18 of the Illinois Constitution reads “equal
protection of the law shall not be denied
or abridged on account of sex by the state
or local government and school districts.”
Therefore, the ERA already is the law in
Illinois. The only issue is whether to make
it the law for our country. According to
the Illinois Legislative Research Unit,
Section 18 resulted in changes to marital
law, criminal law, and juvenile law after the
Illinois Constitution of 1970 was adopted.13
The active clause of the ERA is only 24
words. There is no new program proposed.
There are no implementing regulations
required. There is no appropriation
necessary. There is no new agency created.
Instead, existing laws and future laws must
be gender neutral or be justified under a
higher standard of review when sexes are
differentiated. Again, the ERA is already
state law.
7. How is the ERA different from
the Civil Rights Act and similar
legislation?
The Civil Rights Act of 1964 was
landmark legislation prohibiting
discrimination on the basis of race,
color, religion, sex, and national origin in
programs and activities receiving federal
financial assistance. The drafters sought
to eradicate Jim Crow laws. Originally,
gender was added as an attempt to torpedo
the bill. With that pedigree, it took years
for the Civil Rights Act to be applied to
women. In addition, several of the Titles
had limited enforcement mechanisms. For
example, the EEOC was established about
ten years later to address employment
discrimination under Title VII. Moreover,
the U.S. Supreme Court has interpreted
Title VII of the Civil Rights Act in a way
that has left women without protection
from sex discrimination in many instances,
most prominently in its holding that the
Civil Rights Act often does not require
employers to accommodate pregnancy.
Putting aside the specifics of the Civil
Rights Act, it has the inherent weakness of
any statute—it can be limited, amended,
not renewed, etc. One has only to
consider what is happening to the Voting
Rights Act to see that progress made by
statute can be temporary.
8. Why should women get special
treatment?
The Equal Rights Amendment
would cement gender equality into our
legal foundation. This is not Women’s
Rights, but legal gender equality. Gender
discrimination hurts men too. For example,
under the Immigration and Nationality
Act, it is easier for a mother than a father to
confer U.S. citizenship on a child born out
of wedlock. The Supreme Court upheld this
discrimination against men in Nguyen v.
INS (2001).
Conclusion
The ERA requires that our sons and
daughter be equal under the law. As
for what specifically the ERA might
accomplish, it is not a panacea, but a
tool. The amendment would reshape the
framework for gender equality and serve
as a seawall against the ebb and flow of
politics.
The ERA makes manifest the American
promise that we are all equal under the law.
__________
Cindy G. Buys is a Professor of Law at
Southern Illinois University School of Law.
She is a member of the ISBA Women and the
Law Committee and of the International and
Immigration Law Section Council. Many thanks
to Amy Jo Conroy for her invaluable assistance
with this article.
1. The Originalist, California Lawyer,
January 2011. See also, Jennifer Senior, In
conversation: Antonin Scalia, N.Y. Mag., October
7, 2013, available at http://nymag.com/news/
features/antonin-scalia-2013-10/ (accessed
11/6/15). Supreme Court observers speculate
that Justices Alito, Thomas and Roberts share
Scalia’s analysis. See, Ian Millhiser, Scalia
Says Constitution does not prevent gender
discrimination, Think Progress, September 20,
2010, available at http://thinkprogress.org/
politics/2010/119769/scalia-women/ (accessed
11/6/15).
2. Jessica Neuwirth, Equal Means Equal:
Why the Time for an Equal Rights Amendment
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2
is Now, The New Press (2015).
3. Id.
4. Irin Carmon and Shana Knzhinik,
Notorious RBG, Dey St. (2015), 50.
5. Five states also subsequently voted to
rescind their resolutions of ratification.
6. S.J. Res. 16/H.J. Res. 52.
7. S.J. Res. 15/H.J. Res. 51.
8. Allison L. Held, Sheryl L. Herndon,
and Danielle M. Stager, The Equal Rights
Amendment: Why the Era Remains Legally
Viable and Properly Before the States, 3 Wm. &
Mary J. Women & L. 113 (1997), available at
http://scholarship.law.wm.edu/cgi/viewcontent.
cgi?article=1271&context=wmjowl (accessed
5/10/15); and Thomas H. Neale, The Proposed
Equal Rights Amendment: Contemporary
Ratification Issues, Congressional Research
Service (May 9, 2013), available at https://www.
fas.org/sgp/crs/misc/R42979.pdf (accessed
5/10/15). 9. HJRCA7, 98th Gen. Assem. (Illinois
2015); HJRCA1, 93th Gen. Assem. (Illinois
2003).
10. 429 U.S. 190 (1976).
11. John E. Nowak and Ronald D. Rotunda
Constitutional Law (8th Ed), West (2010), 999.
12. Lisa Baldez, Lee Epstein and Andrew
D. Martin, Does the U.S. Constitution Need
an Equal Rights Amendment? J. Legal Studies,
35:1 (2006) 243-283, available at http://sites.
dartmouth.edu/lisabaldez/files/2012/11/ERA.
pdf (accessed 5/11/15).
13. Illinois Legislative Research Unit, 1970
Illinois Constitution Annotated for Legislators
(4th Ed.) 2015, 26-7, available at http://www.
ilga.gov/commission/lru/ILConstitution.pdf (last
accessed 11/6/2015).
This article originally appeared in
the Illinois State Bar Association’s
The Catalyst Newsletter, Vol. 21 #3, November 2015.
It is reprinted here by, and under the authority of, the ISBA.
Unauthorized use or reproduction of this reprint or
the ISBA trademark is prohibited.
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3
At the End of Our Article III Rope
WHY WE STILL NEED THE EQUAL RIGHTS
AMENDMENT
Sarah M. Stephenst
"Equality of rights under the law shall not be denied or abridged by
the United States or by any State on account of sex."'
INTRODUCTION
Historically, women's organizations were "hopelessly
divided upon the Equal Rights Amendment."2 The National
Woman's Party (NWP) 3 began pursuing a constitutionally based
equal rights solution, known as the constitutional strategy,
around 1919. 4 Meanwhile, groups such as the American Civil
Liberties Union (ACLU) and eventually the National
Organization of Women (NOW) tried to achieve women's equality
by seeking favorable interpretation of existing Fourteenth
Amendment jurisprudence on a case-by-case basis, referred to as
t J.D. 2008, University of Georgia School of Law; B.A. 2004, Emory University.
The author thanks Michael Brodlieb, Shannon Daugherty, Lena Smith, and the Brooklyn
Law Review staff for their insightful comments and superb editorial assistance.
I H.R.J. Res. 208, 92d Cong. (1972). The most recent text of the Equal Rights
Amendment, as proposed in the 113th Congress, provides:
Section 1: Women shall have equal rights in the United States and every place
subject to its jurisdiction. 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: Congress and the several States 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.
S.J. Res. 10, 113th Cong. (2013); H.R.J. Res. 56, 113th Cong. (2013).
2 Serena Mayeri, Constitutional Choices: Legal Feminism and the Historical
Dynamics of Change, 92 CALIF. L. REV. 755, 781 (2004).
3 The National Woman's Party, sometimes known as the Alice Paul Party, was
formed by Alice Paul and Lucy Burns in 1916 to organize for constitutional-based rights,
including women's suffrage and the Equal Rights Amendment. In 1997, the NWP became
a non-profit, nonpolitical, educational organization. See Women of Protest:Photographsfrom
the Records of the National Woman's Party, LIBRARY OF CONGRESS, http://www.loc.gov/
collections/static/women-of-protest/images/history.pdf (last visited Feb. 28, 2015).
4 For a historical account of the competing interests behind this dual
strategy, see Mayeri, supra note 2, at 756-801.
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the litigation strategy. By the end of the 1960s, these divergent
feminist factions coalesced around a dual strategy to pursue equal
rights for women under the law. 5 The ACLU, NOW, and others
lent their support to the Equal Rights Amendment (ERA) to
encourage its passage in Congress and to achieve ratification by
the states, while continuing to campaign for equal protection by
6
challenging existing law in federal court.
At times, the decision to pursue change on dual fronts
hindered both the constitutional strategy and the litigation
strategy. The constitutional strategy, exemplified by the
pendency of the ERA, hindered the litigation strategy by making
the Supreme Court more hesitant to rule that sex is a suspect
class subject to heightened scrutiny review: Meanwhile, the
litigation strategy impeded the constitutional strategy by
lending support to those who argued that women's rights could
be achieved without the ERA.8 The extensive number of
discouraging losses suffered by equal rights advocates before a
Supreme Court that upheld sex-based differentiation in
government benefits, 9 disparate treatment of pregnant
women, 10 discrimination on the basis of sex in the provision of
medical care," and unequal treatment in the military,2 made
5 See generally Mayeri, supra note 2.
6 See, e.g., Califano v. Westcott, 433 U.S. 76 (1979); Califano v. Goldfarb, 430
U.S. 199 (1977); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); Frontiero v. Richardson,
411 U.S. 677 (1973); Roe v. Wade, 410 U.S. 113 (1973); Doe v. Bolton, 410 U.S. 179 (1973);
Reed v. Reed, 404 U.S. 71 (1971). During this period, equal rights advocates also
campaigned for the inclusion of sex as a protected category for purposes of the Civil
Rights Act of 1964, as well as the passage of the Pregnancy Discrimination Act of 1978.
See Frontiero, 411 U.S. at 692 (Powell, J., concurring) ("[Tihe Court has
assumed a decisional responsibility at the very time when state legislatures, functioning
with the traditional democratic process, are debating the proposed Amendment. It seems
to me that this reaching out to pre-empt by judicial action a major political decision which
is currently in process of resolution does not reflect appropriate respect for duly
prescribed legislative processes."). The Court ultimately held that sex-based distinctions
are only subject to intermediate scrutiny in Craigv. Boren, 429 U.S. 190 (1976).
8 Mayeri, supra note 2, at 767.
9 See Califano v. Webster, 430 U.S. 313 (1977) (upholding a Social Security
rule that allowed women to exclude more low-wage-earning years from their average
monthly wage calculation than men); Kahn v. Shevin, 416 U.S. 351 (1974) (upholding a
tax exemption for widows but not widowers). While applying unequal treatment to men
and women, these decisions, as well as Schlesinger v. Ballardcited infra can be seen as
allowing affirmative action on behalf of women to compensate for past discrimination.
10 Geduldig v. Aiello, 417 U.S. 484 (1974) (finding that pregnancy
discrimination is not discrimination "on the basis of sex" and therefore not violative of
the Constitution's equal protection guarantee).
11 Harris v. McRae, 448 U.S. 297 (1989) (upholding the constitutionality of
the Hyde Amendment which prohibited federal funding for abortions except where the
procedure is necessary to save the life of a pregnant woman); Maher v. Roe, 432 U.S.
464 (1977) (holding that the Equal Protection Clause of the Fourteenth Amendment
does not require a state participating in the Medicaid program to pay the expenses
incident to non-therapeutic abortions for indigent women where the state pays
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AT THE END OF OUR ARTICLE III ROPE
clear the continued utility of a constitutional amendment that
could prohibit sex discrimination and preserve bodily integrity.
Unfortunately, the ERA failed to gain the necessary votes
for ratification and feminists were left with only the litigation
strategy. Yet, despite significant losses in the courts, feminists
remained optimistic they could overcome legally entrenched sex
discrimination without the ERA. They were buoyed by piecemeal
judicial pronouncements that ultimately recognized a
3
heightened scrutiny standard when reviewing sex-based laws.1
In fact, litigants continued the struggle for equal rights
throughout the conservative Reagan years 14 and into the 1990s,
when some legal scholars began to claim victory, arguing a de
facto ERA could be found in the Supreme Court's equal protection
jurisprudence.' s Shortly after the Court decided United States v.
Virginia16 in 1996, requiring a "genuine" and "exceedingly
persuasive" justification for sex-based discrimination, Justice
expenses incident to childbirth); Beal v. Doe, 432 U.S. 438 (1977) (holding that Title
XIX of the Social Security Act does not require the funding of non-therapeutic abortions
as a condition of participation in the joint federal-state Medicaid program established
by that statute); Poelker v. Doe, 432 U.S. 519 (1977) (holding that the a St. Louis city
policy that prohibited non-therapeutic abortions in the city's two publicly run hospitals
did not violate the Equal Protection Clause of the Fourteenth Amendment where the
city did provide facilities for childbirth in those same hospitals).
12 Rostker v. Goldberg, 453 U.S. 57 (1981) (upholding the male-only draft by
reasoning that women's exclusion from combat justified sex-based differentiation in other
areas, including the draft); Schlesinger v. Ballard, 419 U.S. 498 (1975) (holding the military
could enforce a sex-specific "up or out" policy that gave male officers less time than female
officers to win a promotion before forcing their resignations). It is worth noting that
members of the movement against the ERA cited women in combat as being one outcome of
its passage. On January 23, 2013, the United States military officially lifted its ban on
female soldiers serving in combat roles. Ernesto Londofio, Pentagon Removes Ban on
Women in Combat, WASH. POST (Jan. 24, 2013), http://www.washingtonpost.com/
worldlnational-security/pentagon-t-remove-ban-on-women-in-combat20l3/01/23/6cba86f6659e-1le2-85f5-a8a9228e55e7_story.html.
13 See Craig v. Boren, 429 U.S. 190 (1976).
14 For a discussion of the conservative backlash against women's rights that
took place in the eighties, see SUSAN FALUDI, BACKLASH: THE UNDECLARED WAR
AGAINST AMERICAN WOMEN (1991).
15 See Reva B. Siegel, Constitutional Culture, Social Movement Conflict aad
ConstitutionalChange: The Case of the De Facto ERA, 94 CALIF. L. REV. 1323, 1332-34
(2006) ("Cass Sunstein observes, 'The American constitution now has something very
much like a constitutional ban on sex discrimination-not because of the original
understanding of its text but because of new judicial interpretations."').
16 United States v. Virginia, 518 U.S. 515, 533 (1996) (although expressly
adhering to the intermediate standard, the Court emphasized that for sex-based
classifications to pass muster under the intermediate standard, the state must
demonstrate an "exceedingly persuasive" justification, and "[t]he justification must be
genuine, not hypothesized or invented post hoc in response to litigation," thus practically
elevating the standard to something closer to strict scrutiny); but cf., Nguyen v. INS., 533
U.S. 53, 74 (2001) (O'Connor, J. dissenting) (undermining the analysis of United States v.
Virginia and applying something less than intermediate scrutiny).
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Ginsburg herself observed: "There is no practical difference
between what has evolved and the [ERA]."'17
The opinions authored by the Supreme Court in the last
several years indicate this victory was prematurely declared.
The application of the Equal Protection Clause to sex
discrimination claims is limited by various factors, including the
Court's failure to subject claims of sex discrimination to the
"strict scrutiny" standard of review; the Court's formalistic
requirement that men and women must be "similarly situated"
for any heightened scrutiny standard to apply, and the Court's
unwillingness to recognize discrimination claims based upon a
theory of disparate impact.18 Moreover, in the 20 years since
Virginia, as Court politics have polarized, the Court has
interpreted the intermediate scrutiny standard with increasing
leniency and women have lost many of the protections hard-won
in the 1970s. In the wake of the Supreme Court's recent decision
in Burwell v. Hobby Lobby,' 9 allowing employers to interfere
with women's healthcare choices, women's rights advocates
surely must feel disappointed in the litigation strategy's failures
and compelled to reinvigorate the fight for the ERA.
This article argues that it is time to return to the clean
sweep approach of the constitutional strategy and pursue
ratification of the ERA. The ERA remains the best option to
overcome the inability of existing equal protection jurisprudence
17 Jeffrey Rosen, The New Look of Liberalism on the Court, N.Y. TIMES MAG.,
Oct. 5, 1997, at 65.
1s Linda J. Wharton, State Equal Rights Amendments Revisited: Evaluating
Their Effectiveness in Advancing Protection Against Sex Discrimination,36 RUTGERS
L.J. 1201, 1205 (2005).
19 Burwell v. Hobby Lobby Stores, Inc., No. 13-354 (U.S. June 30, 2014). In a
television interview regarding her dissent in the Hobby Lobby case, Justice Ginsburg
stated, "Contraceptive protection is something every woman must have access to, to
control her own destiny... [Hobby Lobby] has no constitutional right to foist that belief
on the hundreds and hundreds of women who work for them who don't share that belief."
Katie Couric, Ruth Bader Ginsburg on Hobby Lobby Dissent, YAHOO! NEWS,
(last
http://news.yahoo.com/katie-couric-interviews-ruth-bader-ginsburg-185027624.html
visited Feb. 28, 2015). 'The Court's decision, at heart, is rooted in a very old and very
outdated misunderstanding about women. And that is the idea that women's
reproductive health is somehow 'extra,' 'different,' or 'separate.' This fundamentally
wrong assumption about women's reproductive health has been used for ages to take
away women's rights. By reinforcing this dangerous approach to women's reproductive
health, the Court has put all aspects of women's rights at risk." Sharon Levin, The Hobby
Lobby Decision Takes a Fundamentally Flawed Approach to Reproductive Health, NAT'L
WOMEN'S LAW CENTER BLOG (Oct. 16, 2014), available at httpJ/www.nwlc.org/our-blog/hobbylobby-decision-takes-fundamentally-flawed-approach-reproductive-health. 'This ruling goes
out of its way to declare that discrimination against women isn't discrimination." flyse Hogue,
Statement: NARAL Pro-Choice America Reaction to the Supreme Court Decision on Hobby
Lobby, June 30, 2014, available at httpJ/www.prochoiceamerica.org/media/pressreleases/2014prO6302014_scotus hobbylobby.html.
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AT THE END OF OUR ARTICLE III ROPE
to achieve rigorous protection against sex discrimination. Part I
provides a background of the ERA and the surrounding
movement. Part II problematizes Article III jurisprudence,
focusing on the limits of the Supreme Court's analysis of the
Equal Protection Clause in sex discrimination cases. Part III
highlights court opinions that have interpreted state
constitution ERAs to provide extensive protection against sex
discrimination in the reproductive rights context, and then
reimagines the Hobby Lobby decision as it would result under a
federal ERA, in light of those analyses.
I.
BACKGROUND OF THE ERA
A.
The Nineteenth Amendment: "[T]he right by which all
others could be secured"2o
The history of the ERA dates back to 1848 and the first
Women's Rights Convention in Seneca Falls, New York.21
Elizabeth Cady Stanton and Lucretia Mott, who met as
abolitionists working against slavery, convened a two-day
meeting of 300 women and men to call for justice for women in
a society that systematically barred them from the rights and
privileges of citizenship.22 A Declaration of Sentiments2 3 and 11
other resolutions were adopted with ease, but the proposal for
women's suffrage passed only after impassioned speeches by
Stanton and former slave Frederick Douglass, who declared
20 See Rutgers, The State Uni. of N.J., Declarationof Sentiments and Resolutions,
THE ELIZABETH CADY STANTON AND SUSAN B. ANTHONY PAPERS PROJECT, at n.7,
http://ecssba.rutgers.edu/docs/seneca.html (last updated Aug. 2010) [hereinafter Declaration
of Sentiments and Resolutions] (internal quotation marks omitted) (referencing Elizabeth
Cady Stanton and Frederick Douglass's description of women's suffrage).
21 The history of the struggle for women's rights in the United States dates back
to its very formation, through the Reconstruction Era, and up to present day. See Abigail
Adams' plea for her husband, John, Massachusetts representative to the Continental
Congress in Philadelphia, to "remember the ladies" when drafting the "new [C]ode of laws."
2005),
(Aug. 26,
Ladies" Letter, PBS
'Remember the
Abigail Adams'
http://www.pbs.org/wgbh/amex/adams/filmmore/ps_ladies.html. That request, sadly, went
unheeded. See Letter from Abigail Adams to John Adams (Mar. 31, 1776), available at
http://www.historytools.org/sources/Abigail-John-Letters.pdf ("As to your extraordinary code
of laws, I cannot but laugh.., we know better than to repeal our masculine systems."); see
also Rebecca Hall & Angela P. Harris, Hidden Histories, Racialized Gender, and the Legacy
of Reconstruction: The Story of United States v. Cruikshank, in WOMEN AND THE LAW
STORIES (Elizabeth M. Schneider & Stephanie M. Wildman eds., 2011) (explaining the brave
actions of minority women in response to acts of violence and male dominance against them
following the Civil War, their hopes in the new Reconstruction Civil Rights Regime, and the
failure of the Supreme Court to grant them privileges and immunities of citizenship in light
of its decision in the Slaughter-HouseCases).
22 See Declarationof Sentiments and Resolutions, supra note 20.
23 Id.
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suffrage as the "right by which all others could be secured."24
Unfortunately, few outside of the women's movement took this
call for women's suffrage seriously.
After the Civil War, Elizabeth Stanton, Susan B.
Anthony, and Sojourner Truth fought in vain to have women
included in new constitutional amendments that gave rights to
former slaves.25 The Fourteenth Amendment defined citizens
as, "[a]ll persons born or naturalized in the United States," and
guaranteed equal protection of the laws, but rather than
expand the rights of all disenfranchised people, in referring to
the electorate, the amendment introduced the word "male" into
the Constitution for the first time.26 Women were likewise
omitted from the Fifteenth Amendment, which declared that
"[t]he right of citizens... to vote shall not be denied or
abridged.., on account of race, color, or previous condition of
servitude."27 Women of all races continued to be denied the
ballot. In 1875, the Supreme Court in Minor v. Happersett
confirmed that while women qualified as citizens, not all
citizens held the right to vote, and states were not required to
28
allow women to vote.
Excluded from both Reconstruction-era Amendments,
Stanton and Anthony immediately began campaigning for a
new constitutional amendment to ensure women the right to
vote. 29 As the first wave of suffragists died out, leaders such as
Carrie Chapman Catt of the National American Woman
Suffrage Association and Alice Paul, founder of the NWP took
24
Id.
25
Id.
26
U.S CONST. amend. XIV, §§ 1-2. The Fourteenth Amendment provides,
Representatives shall be apportioned among the several states according to
their respective numbers, counting the whole number of persons in each state,
excluding Indians not taxed. But when the right to vote at any election for the
choice of electors for President and Vice President of the United States,
Representatives in Congress, the executive and judicial officers of a state, or the
members of the legislature thereof, is denied to any of the male inhabitants of
such state, being twenty-one years of age, and citizens of the United States, or
in any way abridged, except for participation in rebellion, or other crime, the
basis of representation therein shall be reduced in the proportion which the
number of such male citizens shall bear to the whole number of male citizens
twenty-one years of age in such state.
Id.
27 U.S. CONST. amend. XV, § 1.
28 Minor v. Happersett, 88 U.S. 162 (1874).
29 See Roberta W. Francis, The History Behind the Equal Rights Amendment,
THE EQUAL RIGHTS AMENDMENT: UNFINISHED BUSINESS FOR THE CONSTITUTION,
http://www.equalrightsamendment.org/history.htm (last visited Feb. 28, 2015).
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2015]
up the cause. 30 Seventy-one years after the Seneca Falls
Convention, the Nineteenth Amendment granted women the
right to vote when it finally passed through Congress. 31
After the Nineteenth Amendment passed Congress in
1919, it quickly gained "more than half the ratifications it needed
in the first year. Then it ran into stiff opposition from states'
rights advocates, the liquor lobby, business interests against
higher wages for women, and a number of women themselves,
who believed claims that the amendment would threaten the
family32 by dividing husband and wife and disrupting the social
order. "Finally, the battle narrowed down to a six-week seesaw
struggle in Tennessee." 33 Illustrating the precarious nature of
the passage of the Nineteenth Amendment, its fate "was decided
by a single vote, that of 24-year-old legislator Harry Burn, who
switched from 'no' to 'yes' in response to a letter from his
mother saying, 'Hurrah, and vote for suffrage!'. 34
Suffragists thus won the first, and still the only, specific
written guarantee of women's equal rights in the Constitution,
the Nineteenth Amendment, which declared, 'The right of
citizens of the United States to vote shall not be denied or
abridged by the United States or by any state on account of sex."35
B.
Beyond Suffrage: The Equal Rights Amendment
Despite the significant change wrought by the Nineteenth
Amendment, many laws and practices in the workplace and in
society still perpetuated men's status as privileged and women's
status as second-class citizens.36 Unsatisfied, some in the suffrage
movement began to call for a prohibition on all laws based upon sex
distinctions.17 In 1923, for the celebration of the 75th anniversary of
the 1848 Women's Rights Convention, Alice Paul introduced the
ERA (then known as the Lucretia Mott Amendment), proclaiming,
30 Id.
31
For more on the history of woman suffrage, see 5 NAT'L AM. WOMAN
SUFFRAGE ASS'N. THE HISTORY OF WOMAN SUFFRAGE: 1900-1920 (Ida Husted Harper
ed. 1922), available at http://www.gutenberg.org/files/29878/29878-h129878-h.htm.
32 Francis, supra note 29.
33 Id.
34 Id. (citing Carol Lynn Yellin, Countdown in Tennessee, 1920, 30 AM.
HERITAGE 12 (1978)).
35 U.S. CONST. amend. XIX.
36 Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality,
Federalism, and the Family, 115 HARv. L. REV. 947, 1013-14 (2002).
37 Id.
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"[w]e shall not be safe until the principle of equal rights is written
3
into the framework of our government. 8
The ERA was first proposed in Congress on December
13, 1923 as H.R.J. Res. 7539 and was re-introduced into every
session of Congress between 1923 and 1972.40 During that
period, American feminists split into the two opposing camps
that would ultimately pursue the divergent constitutional and
litigation strategies. Some feminists, like the members of the
NWP and certain professional women's groups, believed that
adoption of the ERA represented a critical step in the fight to
eliminate sex-based legal distinctions, and offered strong
support in favor of the constitutional amendment.41 These same
advocates were opposed to protectionist legislation and believed
that special laws for women did not protect women so much as
hinder their advancement. 42 The other camp, which included
unions and the ACLU, had fought hard for minimum wage,
maximum hours, and additional sex-based protections that
they feared the ERA would eliminate. 43 This camp preferred a
piecemeal strategy, promoting discriminatory laws that
arguably benefitted women, while attacking discriminatory
44
laws that did not.
38 See Francis, supra note 29.
39 Equal Rights Amendment, H.R.J. Res. 75, 68th Cong. (1923). The original
text of the ERA, which differed only slightly from the current version, provided:
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.
40 Martha Griffiths and the Equal Rights Amendment, NAT'L ARCHIVES,
http://www.archives.gov/legislative/features/griffiths/ (last visited Feb. 28, 2015); see
infra note 49, at pp. 2-8.
In most years, [the ERA] never reached the full Senate. But in 1946, after
debate on the Senate floor, the ERA commanded a majority of votes, though
less than the requisite two-thirds for a constitutional amendment. In 1950
and 1953, the Senate passed the ERA with a rider that nullified its equal
protection aspects.
Martha Davis, The Equal Rights Amendment: Then and Now, 17 COLUM. J. GENDER &
L. 419, 429-30 (2008).
41 Mayeri, supra note 2, at 762.
42 Id. Protectionist legislation included laws limiting the number of hours
women could work. See Muller v. Oregon, 208 U.S. 412 (1908). Such laws discouraged
employers from hiring women, as the Supreme Court had previously held that men
could not be subject to such laws. Further, protectionist legislation served to reinforce
stereotypes of women as fragile or feeble.
43 Mayeri, supra note 2, at 762.
44 Id. at 764.
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AT THE END OF OUR ARTICLE III ROPE
In 1969,
the Equal Employment
Opportunity
Commission (EEOC) began to argue that Title VII's prohibition
on sex discrimination outlawed most sex-based workplace
protections. 45 This meant that the protectionist laws which
benefitted women in their employment were now illegal, while
many of the discriminatory laws which harmed women in other
areas of their lives remained in place. Their arguments over
the value of protectionist legislation rendered moot, the two
groups could finally reunite. Indeed, frustrated by a lack of
progress in the courts, those in favor of the litigation strategy
joined with other feminist organizations to begin a hard push
for the ERA, while cautiously continuing to pursue litigation
which would ultimately lead to successes such as Reed v. Reed46
47
and Frontierov. Richardson.
In 1972, the ERA finally passed Congress and it was
4
sent to the states, with a seven year deadline for ratification. 8
Like the Nineteenth Amendment, a great deal of momentum
surrounded the ratification of the ERA. In the first year, the
ERA received 22 of the necessary 38 state ratifications. 49 But
the pace slowed as the same opposition groups that resisted the
Nineteenth Amendment began to organize against the ERA. 50
45 Mayeri supra note 2, at 797-99. Other women's rights organizations, which had
previously opposed the ERA, began to offer their support in favor of the constitutional
amendment during the late sixties because of the EEOC's refusal to enforce the prohibition
against sex discrimination provided for in Title VII. Id. at 775 n.90. This refusal to enforce a
statutorily provided equal protection in employment guarantee united feminists in the need
for political mobilization. Id.
46 Reed v. Reed, 404 U.S. 71 (1971) (holding that a court cannot discriminate
in the naming of an executor of an estate on the basis of sex).
17 Frontiero v. Richardson, 411 U.S. 677 (1973) (holding that the U.S.
military could not discriminate in the administration of benefits for dependent spouses
on the basis of the sex).
48 THOMAS NEALE, CONG. RESEARCH SERV., R42979, THE PROPOSED EQUAL
RIGHTS AMENDMENT: CONTEMPORARY RATIFICATION ISSUES 8 (2013), available at
http://www.equalrightsamendment.org/misc/CRS-2013-summary.pdf.
49 Id. at 9.
50 Phyllis Schlafly, a conservative activist, led the movement against the ERA
after it was passed in the U.S. House and Senate in 1972. Her campaign, "Stop ERA,"
galvanized opposition against the attempt to secure equal rights for women in the U.S.
Constitution. Schlafly and members of the Eagle Forum group traveled around the
United States arguing that protective laws against sexual assault and for alimony would
be swept away; the tendency for the mother to receive child custody in a divorce case
would be eliminated; same-sex marriages would be permitted; the all-male military draft
would become immediately unconstitutional; and that even single-sex restrooms would be
banned if the ERA became law. Siegel, supra note 15, at 1401; Davis, supra note 40 at
426-27; see also DONALD T. CRITCHLOW, PHYLLIS SCHLAFLY & GRASSROOTS
CONSERVATISM: A WOMAN'S CRUSADE, ch.9 (2005). The "ERA failed, but the consequences
happened anyway. Unisex bathrooms are in college dorms around the country. Women
are joining the armed forces-by choice. And modern alimony laws look at sex-neutral
factors, such as need and contribution, when determining who should receive support."
Martha Craig Daughtrey, Women and the Constitution: Where We Are at the End of the
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Only eight states ratified the ERA in 1973, three in 1974, one
in 1975, and none in 1976. 51 In all, 35 states ratified the ERA,52
but the seven-year time limit for ratification passed without
the three additional states needed to make the amendment
law. 53 Congress extended the ratification period an additional
five years.5 4 However, the political tide continued to turn more
conservative, and on the congressionally imposed deadline of
55
June 30, 1982, no additional states had voted for ratification.
One hundred thirty-four years after the Seneca Falls
Convention and sixty-two years after ratification of the
Century, 75 N.Y.U. L. REV. 1, 23 (2000). Even same-sex marriage is now permitted in
about half of the states, and discrimination on the basis of sexual orientation has been
ruled unconstitutional in many arenas, including in the administration of various
federal programs and benefits. See The Changing Landscape of Same-Sex Marriage,
WASH. POST, (Oct. 17, 2014), http://www.washingtonpost.com/wp-srv/special/politics/
same-sex-marriage/; see also e.g., United States v. Windsor, 133 S. Ct. 2675 (2013)
(holding that, because the Defense of Marriage Act, which defined marriage as a union
between one man and one woman, is unconstitutional under the Due Process Clause of
the Fifth Amendment, the IRS cannot discriminate against same sex surviving spouses
for the purposes of federal estate tax exemptions). Schlafly and others also argued that
the ERA would lead to "abortion on demand." In order to increase their political capital,
proponents of the ERA have argued that the ERA would have a limited impact on
reproductive autonomy. Mayeri, supra note 2,at 1274-80. The author firmly disagrees.
See infra Part III.
51 NEALE, supra note 48, at 9.
52 Id. at 9 n.45. States that have not ratified the ERA include: Alabama,
Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, Nevada,
North Carolina, Oklahoma, South Carolina, Utah, and Virginia. Battle Lines Being
Drawn in Illinois on Equal Rights Amendment, CHICAGO SUN-TIMES (Aug. 10, 2014),
http://politics.suntimes.com/article/washington/battle-lines-being-drawn-illinois-equalrights-amendment/sun-08102014-329pm.
53 NEALE, supra note 48,at 9 n.45.
54 Whether Congress had the authority to extend the time for ratification set
forth in the ERA's proposing clause without re-submitting the ERA to the states is a
matter in dispute. After the 27th Amendment, also known as the "Madison Amendment,"
was ratified by Michigan in 1992 and became part of the Constitution 203 years after it
was submitted to the states, some legal scholars argued that the ERA could still become
law. See Allison Held et al., The Equal Rights Amendment: Why the ERA Remains
Legally Viable and Properly Before the States, 3 WM. & MARY J. WOMEN & L. 113 (1997)
(arguing that the seven year time limit in the ERA's proposing clause was irrelevant
because states ratify only the text of the amendment and not the proposing clause and
that Congress has the power to determine the timeliness of the ERA after final state
ratification and can extend, revise, or ignore a time limit); but cf., Orrin G. Hatch, The
Equal Rights Amendment Extension: A CriticalAnalysis, 2 HARV. J.L. & PUB. POL'Y 19
(1979) (arguing the extension of time for ratification violated the Article V process). The
Congressional Research Service analyzed this legal argument in 1996 and concluded that
acceptance of the Madison Amendment does have implications for the premise that
approval of the ERA by three more states could allow Congress to declare ratification
accomplished. As of 2007, ratification bills testing this three-state strategy have been
introduced in one or more legislative sessions in eight states (Arizona, Arkansas, Florida,
Illinois, Mississippi, Missouri, Oklahoma, and Virginia), and supporters are seeking to
move such bills in all 15 of the unratified states. NEALE, supra note 48, at 12.
55 NEALE, supra note 48, at 10.
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Nineteenth Amendment, the country remained unwilling to
guarantee women constitutional rights equal to those of men.
Women's rights advocates were undeterred.56 Congress
reintroduced the ERA on July 14, 1982 and it has been before
every session of Congress since that time5 Two different types of
ERA legislation came before Congress in the 2014 session:
traditional legislation to ratify the ERA by the Constitution's
Article V ratification process 58 and legislation designed to remove
the time limit on the ERA's ratification process and declare it
59
complete when three additional states ratify the amendment.
Ratification remains an active issue in state legislatures
as well. In February 2014, the Virginia House voted to ratify
the ERA, but a Republican House subcommittee killed the
proposal later that month.60 In May 2014, the Illinois Senate
voted to ratify the ERA.61 A vote in the Illinois House could
occur before the end of the 2014-2015 legislative term. 2 Also,
the Senate Committee on Legislative Operations and Elections
in the Nevada Legislature has requested the drafting of a
Senate Joint Resolution to ratify the ERA in 2015.63
II.
LEGAL CHALLENGES TO DISCRIMINATION HAVE NOT
ACHIEVED EQUALITY OF RIGHTS
While Congress and state legislatures debated the ERA
during the 1970s, a new field of equal rights jurisprudence
started to develop in the courts. Drawing from the race
discrimination cases of the 1950s and 1960s, the Supreme Court
began to interpret the Equal Protection Clause to provide a
Francis,supra note 29.
For more on the re-introduction of the ERA in 1982, see Serena Mayeri, A
New E.R.A. or a New Era? Amendment Advocacy and the Reconstitution of Feminism,
103 Nw. U.L. REV. 1223 (2009).
58 H.R.J. Res. 56, 113th Cong. (2013); S.J. Res. 10, 113th Cong. (2013).
59 H.R.J. Res. 113, 113th Cong. (2014); S.J. Res. 15, 113th Cong. (2013); see
also Held et al., supra note 54, at 113 (arguing that the ERA will become a part of the
U.S. Constitution upon its ratification by three additional states).
60 Bill Sizemore, Equal Rights Amendment Rejected Again in Virginia House,
2014),
http://hamptonroads.com/2014102/equal-rights(Feb.
27,
VIRGINIAN-PILOT
amendment-rejected-again-va-house.
61 See Feminist Newswire, Illinois Senate PassesResolution to Ratify the Equal
Rights Amendment, FEMINIST FOUND. MAJORITY BLOG (May 23, 2014, 12:52 PM),
http://feminist.org/blog/index.php/2014/05/23/ llinois-senate-passes-resolution-to-ratifyera/; Senate Votes to Ratify Equal Rights Amendment, ILLINOIS SENATE DEMOCRATS
(May 23, 2014, 3:22 PM), http://www.illinoissenatedemocrats.com/index.php/caucusnewslblog-archive/4190-illinois-senate-votes-to-ratify-equal-rights-amendment.
62 Sean Whaley, ERA Isn't Nostalgia in Nevada, LAS VEGAS REV.-J. (July 28, 2014,
12:53 AM), httpJ/www.reviewjournal.com/politics/governnent/era-isn-t-nostalgia-nevada.
56
,7
63 Id.
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prohibition against sex discrimination in certain circumstances
where none had previously existed. Although this has led to
some fundamental protections for women and perhaps has
achieved most of the early goals of ERA proponents, Article III
courts have stopped short of providing women comprehensive
equal protection under the law.
The ability of the Equal Protection Clause to eliminate
sex discrimination is limited by the Court's inconsistent
application of the intermediate scrutiny standard and its refusal
to subject claims of sex discrimination to the strict scrutiny
standard, the Court's formalistic requirement that men and
women be deemed "similarly situated" for heightened scrutiny
to apply, and the Court's focus on disparate treatment in all
equal protection cases.
A.
Limitations of the Intermediate Scrutiny Standard in
EradicatingSex Discrimination
Under the existing strict scrutiny standard, where a law
distinguishes between individuals on the basis of a "suspect
classification," the government actor bears the burden of
demonstrating that the classification serves a compelling
government interest and is narrowly tailored to accomplish that
government interest.64 Currently, only classifications based on
race and national origin are considered "suspect" and therefore
warrant strict scrutiny review.65 Classifications based on sex are
subject to the lesser standard of intermediate scrutiny.66 This is
because current equal protection jurisprudence reflects the idea
that:
[I]t is appropriate for courts to apply a less rigorous standard of
for
citizenship
equal
concerning
to
questions
review
a collective
women... [because] the nation never made
64 See Korematsu v. United States, 323 U.S. 214, 216 (1944); see also Plyler v.
Doe, 457 U.S. 202, 216-18 (1982).
65 Ryan Lozar & Tahmineh Maloney, Equal Protection, 3 GEO. J. GENDER &
L. 141, 144 (2002).
66 Craig v. Boren, 429 U.S. 190 (1976). Laws not subject to strict or intermediate
scrutiny are subject to rational basis review. Rational basis review is the most deferential of
the three standards and applies to all classifications not affecting either a suspect or quasisuspect class or a fundamental right. To pass rational basis review, a law must have a
rational relationship to a legitimate government interest. Under rational basis review, when
a legitimate governmental interest is not readily apparent, courts may speculate as to what
legitimate governmental interest could conceivably motivate the state action. However, an
unclear connection between a classification and proffered governmental objective may
render the distinction arbitrary or irrational. At a minimum, a governmental objective
cannot be steeped in class-based animus. Marcy Strauss, Reevaluating Suspect
Classifications,35 SEATTLEL. REV. 135, 136 n.7-8 (2011).
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constitutional commitment to respect women as equal of
men... [and because of] a pervasive intuition that the problem of
sex discrimination is not as grave, harmful, or significant in
67
American history as the problem of race discrimination.
To withstand intermediate scrutiny, a quasi-suspect
classification, such as sex, must serve government interests and
must be substantially related to those objectives. 68 The Court
has demonstrated inconsistency in its interpretation of the
intermediate scrutiny standard. In the Court's early sex
discrimination jurisprudence, it sometimes "required a lessthan-perfect fit between governmental ends and means, at times
sustaining
classifications
based
on broad
sex-based
generalizations."69 In later cases, the Court usually applied a
more stringent test. 70 Intermediate scrutiny reached a high
water mark in 1996 in United States v. Virginia71 a case from
which the Court has since retreated.
In Virginia, the Court found that Virginia Military
Institute's (VMI) male-only admission policy violated the Equal
Protection Clause.72 In an opinion authored by Justice Ginsburg,
the Court held that the defender of a law that creates a sexbased classification must produce an "exceedingly persuasive
justification" for upholding the law. 73 Such justification must be
genuine, not hypothesized or invented for purposes of
litigation. 74 Virginia argued that single sex education yields
important educational benefits and fosters diversity in
educational approaches. 75 The Court determined, however, that
Virginia failed to show that VMI created or maintained its
male-only admissions policy in order to further the state's
proffered justification.76 Moreover, the Court held that a
purpose to advance an array of education options was not
67 Siegel, supra note 36, at 1013-14.
68 Lozar & Maloney, supra note 65, at 147-48. However, the Court has upheld
sex based classifications without explicitly analyzing whether the relationship between
the objective and the classification qualified as substantial. In such instances, the
Court has relied at least in part on legislative judgment to find that a sufficient nexus
existed between the objective and the sex based classification. Id.
69 Davis, supra note 40, at 430-31 (upholding a Florida statute providing a
property tax exemption for widows, but not widowers, reasoning that widows generally
face greater financial difficulties than widowers (citing Kahn v. Shevin, 416 U.S. 351,
353-56 (1974))).
70 See supra note 6.
71 United States v. Virginia, 518 U.S. 515 (1996).
72 Id. at 534.
73 Id. at 531.
74 Id. at 535-36 (citing Weinberger v. Wiesenfeld, 420 U.S. 636, 643, 648 (1975)).
75 Id. at 535.
76 Id. at 535-37.
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served by VMI's male-only admissions policy and, therefore,
VMI's justification was not "exceedingly persuasive." 77
Virginia represented the pinnacle of intermediate
scrutiny as applied to sex discrimination cases. The inclusion of
the "exceedingly persuasive justification" language and the
extent to which the Court's opinion repeated the phrase seemed
to heighten the state's burden when defending a law
discriminating on the basis of sex. 78 Even though the stronger
version of intermediate scrutiny expressed in Virginia did not
go as far as the strict scrutiny standard, many scholars felt
79
there was no practical difference.
Court almost
Virginia, though, the
Following
immediately backed away from the heightened intermediate
scrutiny standard, demonstrating its unwillingness to apply a
robust standard to sex discrimination cases. For example, in
Nguyen v. INS,80 the majority opinion did not use the
exceedingly persuasive justification language when it set out
the definition of intermediate scrutiny. In fact, while the Court
claimed to apply the intermediate scrutiny standard, the
standard it actually applied was considerably more lenient and
seemed more like rational basis than intermediate scrutiny.
In Nguyen, the Court considered a challenge to an
immigration law which imposed different requirements for
unmarried fathers and unmarried mothers to transmit United
States citizenship to children born abroad. 81 An unmarried
father could transmit citizenship only if he performed specific
steps to establish paternity before the child turned 18, while a
child born to an unmarried woman abroad automatically
received the mother's United States citizenship.82 The majority
opinion purported to apply heightened scrutiny in upholding
the statute and reasoned that the law did not violate the Equal
Protection Clause because it was based on biological differences
83
between men and women.
As Justice O'Connor's dissent explained, the majority
ignored several aspects of the intermediate scrutiny test laid
77 Id. at 539-40.
78
Id. at 571-72 (Scalia, J., dissenting).
79 See Sabrina Ariel Miesowitz, ERA is Still the Way, 3 N.Y.U. J.L & LIBERTY
124, 135 (2008) (citing Jeffrey Rosen, The New Look of Liberalism on the Court, N.Y.
TIMES MAG., Oct. 5, 1997, at 65).
80 Nguyen v. INS, 533 U.S. 53 (2001).
81 Id. at 56-57.
82 Id. at 59.
83 Id. at 68.
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out in Virginia.84 The majority in Nguyen failed to consider the
historical background of the statute. 85 Historical sex
discrimination was described in Virginia as the main impetus
for using a higher level of scrutiny to review sex-based
classifications.86 Justice O'Connor's dissent showed that the
immigration law at issue reflected a stereotypical assumption
that children born out of wedlock were the sole responsibility of
the mother, the exact type of historical bias that intermediate
scrutiny was developed to combat.87 Unfortunately, the
majority opinion actually propagated this sexist assumption in
its opinion, despite the facts before the Court which directly
contradicted the majority's biased view that mothers are more
likely to develop meaningful relationships with their children.88
Further, the Court relied on arguments that the Immigration
and Naturalization Service (INS) had not made to reach its
decision, ignoring Virginia's holdings that the burden of
justification lies with the defender of the statute and that the
Court would only consider genuine arguments, as opposed to
those driven by litigation that the defender put forward.89
The Court has continued the trend of inconsistent
protection against sex discrimination seen in Virginia and
Nguyen. For example, it struck down the Violence Against
Women Act's civil rights remedy in 2000 as an unconstitutional
exercise of congressional power. 90 Then, three years later, the
Court found the Family and Medical Leave Act was "a valid
legislative attempt to combat sex discrimination under Section
Five of the Fourteenth Amendment.91
These apparent contradictions are not unexpected when
one considers the difficulty in applying the vague intermediate
scrutiny standard. The intermediate scrutiny standard
occupies the middle ground somewhere between rational basis
and strict scrutiny, and therefore its application by the
Supreme Court and the lower courts has proven to be
Id. at 78-79 (O'Connor, J., dissenting).
85 Id. at 91.
84
United States v. Virginia, 518 U.S. 515, 534, 538 (1996).
Nguyen, 533 U.S. at 91.
88 Id. In actuality, Nguyen had been abandoned by his mother and raised by
his father. Id. at 89.
89 See Miesowitz, supra note 79, at 140.
90 United States v. Morrison, 529 U.S. 598, 619, 627 (2000) (holding the civil
rights remedy exceeded congressional power under both Section Five of the Fourteenth
Amendment, as well as the Commerce Clause).
91 Mayeri, supra note 2, at 757-58 (footnote omitted).
86
87
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unpredictable. Intermediate scrutiny is not functional because
it does not provide a clear and consistent rule.
One important goal of the ERA was to "provide an
immediate mandate, a nationally uniform theory of sex equality,
and the prospect of permanence to buttress individual and
political efforts to end discrimination. 92 This goal has not and
cannot be achieved using the intermediate scrutiny standard.
In contrast to [the] unpredictability [of the intermediate scrutiny
standard,] subjecting sex discrimination to strict scrutiny would
provide consistency across identity-based classifications such as race
and sex, providing more guidance for both lower courts and policy
makers. Further, strict scrutiny provides for less judicial discretion
because there are fewer circumstances where discrimination can be
justified in the face of such scrutiny .... According to one study,
under strict scrutiny, a claimant alleging discrimination has a [73%]
probability of success, while under intermediate scrutiny, a litigant
93
will prevail only [47%] of the time.
Passage of the ERA would require that courts use a strict or
absolute scrutiny standard, 94 thereby providing consistency in
the area of sex discrimination law, ensuring that the vast
majority of discriminatory laws would be struck down, and
discouraging the passage or enforcement of sex-biased laws.
B.
FormalEquality and the Fallacyof "Real"Differences
Under current equal protection jurisprudence, most sex
discrimination cases do not receive even the lesser
intermediate scrutiny standard of review. The Court will only
apply heightened scrutiny to cases where classes of people are
alike in all relevant ways except for a protected basis, such as
race or national origin (for the purposes of strict scrutiny), or
92
Miesowitz, supra note 79, at 129 (footnotes omitted).
93 Davis, supra note 40, at 437 (footnotes omitted); see also Lee Epstein et al.,
Constitutional Sex Discrimination,1 TENN. J.L. & POL'Y 11, 67 (2004). In contrast to
the relatively predictable outcomes under strict scrutiny and rational basis standards,
"when courts apply the intermediate standard, litigants alleging sex discrimination are
nearly as likely to win as they are to lose." Epstein et al., supra note 93, at 67.
94 The absolute scrutiny standard would prohibit laws that distinguish between
individuals on the basis of sex except where: (1) they involve a physical characteristic
unique to one sex; (2) they are necessary to preserve other constitutional rights, such as
the right to personal privacy; or (3) they are part of a genuine affirmative action policy.
Barbara A. Brown et al., The Equal Rights Amendment: A ConstitutionalBasis for Equal
Rights for Women, 80 YALE L.J. 871 (1971). In each of these three exceptional
circumstances, the suspect law would be subject to strict scrutiny. Id. Thus, laws which
restrict reproductive autonomy would be subject to the strict scrutiny standard regardless
of whether absolute scrutiny could apply under the ERA.
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gender (for purposes of intermediate scrutiny). 95 Otherwise, the
Court will merely look at whether there is any rational basis for
the classification and the state's asserted objective in order to
uphold the discriminatory law. 96 The Supreme Court has held
that physical or "real" differences between men and women may
constitute important reasons for gender classifications and
97
therefore justify discrimination.
The real differences theory arises from the Court's
formalistic interpretation that the Equal Protection Clause "is
essentially a direction that all persons 'similarly situated' should
be treated alike."98 Such an analysis severely narrows the
definition of what can be considered unconstitutional sex
discrimination under the Equal Protection Clause. This is because
the Court has held, again and again, that differences in
treatment, where they correspond to differences between men and
women relating to biology, are not subject to the intermediate
scrutiny standard, much less the strict scrutiny standard, because
men and women are not "similarly situated" in those
circumstances. 99 In so doing, the real differences theory justifies
depriving women of the rights and obligations of citizenship.
For example, in Michael M. v. Sonoma County Superior
Court, the Court used the real differences theory to justify a
criminal statute which provides that only men can be charged
with statutory rape. 100 There, the Court stated:
[Tihe Equal Protection Clause does not "demand that a statute
necessarily apply equally to all persons" or require "things which are
different in fact... to be treated in law as though they were the
same."... [This Court has consistently upheld statutes where the
gender classification is not invidious, but rather realistically reflects the
101
fact that the sexes are not similarly situated in certain circumstances.
The Court found that men and women are not "similarly situated"
for purposes of the statutory rape law because only women can
become pregnant and as a result women "suffer disproportionately
the profound physical, emotional, and psychological consequences
°
of sexual activity."1 2
95
See Wharton, supranote 18, at 1216.
9- Id.
97 See United States v. Virginia, 518 U.S. 515, 533 (1996).
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).
99 See, e.g., Michael M. v. Sonoma Cnty. Superior Court, 450 U.S. 464 (1981).
98
100 Id.
101 Id. at 469 (citations omitted) (internal quotation marks omitted).
102 Id, at 471.
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The statute at issue in Michael M. may seem to benefit
women by protecting them from criminal prosecution; however,
in reality, it exposes children to sexual misconduct and
perpetuates stereotypes that portray men as predators and
women as docile victims. Like so many other cases, the Court
grounds its ruling in gender stereotypes and the idea that it is
permissible to treat women differently than men on the basis of
women's reproductive capacity. 103
In Geduldig v. Aiello, the Court held that a state
disability insurance program which excluded pregnancy from
coverage did not violate the Equal Protection Clause because,
"[tihere is no risk from which men are protected and women
are not. 1o4 The Court reached such a conclusion by hiding
behind the fallacy that the program differentiated between
pregnant and non-pregnant women, rather than recognizing
that because pregnancy is a physical condition which only
appears in women, the program discriminated on the basis of
sex.105 In its insistence on formal equality, the Court ignored
103 See, e.g., Bray v. Alexandria Women's Clinic, 506 U.S. 263 (1993); Harris v.
McRae, 448 U.S. 297 (1980); Geduldig v. Aiello, 417 U.S. 484 (1974). Before the Court's
application of intermediate scrutiny to gender discrimination cases in Craig v. Boren, 429
U.S. 190 (1976), it upheld numerous gender classifications on the basis that women
require special protections because of their weaker physical and mental nature and
childbearer-rearer responsibilities. In fact, before the Court's decision in Reed v. Reed,
404 U.S. 71 (1971), the Court upheld every gender classification challenged under the
Equal Protection Clause. See Hoyt v. Florida, 368 U.S. 57, 61-62 (1961), abrogated by
Taylor v. Louisiana, 419 U.S. 522 (1975) (upholding a law which mandated jury service
for men, but permitted service by women because of a woman's need to be in the home,
rather than engaged in "community life"); Goesaert v. Cleary, 335 U.S. 464, 466 (1948)
(upholding a law prohibiting women from employment as bartenders except where tavern
was owned by the woman's father or husband in order to protect women's moral and
physical well-being); Muller v. Oregon, 208 U.S. 412 (1908) (allowing prohibition on
women working more than ten hours per day despite the recent Lochner v. New York,
198 U.S. 45, 64 (1905) decision striking down a ten hour per day limitation applicable
to male bakery employees on the basis that it interfered with the constitutional right to
contract); Bradwell v. The State, 83 U.S. 130, 141 (1872) (Bradley, J., concurring)
(upholding ban on women practicing law because their "paramount destiny and
mission ...are to fulfill] the noble and benign offices of wife and mother").
104 Geduldig,417 U.S. at 496-97.
105 Id. Geduldig was extended to cases under Title VII of the Civil Rights Act, 42
U.S.C. § 2000e-2(a)(1) (2000), under Gen. Elec. Corp. v. Gilbert, 429 U.S. 125, 145-46
(1976) (holding that the failure to cover pregnancy-related disabilities under a disability
benefit plan does not violate Title VII). Congress rejected this analysis for purposes of sex
discrimination in employment by passing the Pregnancy Discrimination Act in 1978,
which expanded the definition of "because of sex" under Title VII of the Civil Rights Act of
1964 to include pregnancy, childbirth, and other related conditions. Nevertheless,
Geduldig continues to be good law. For example, in Bray v. Alexandria Women's Health
Clinic, the Court explicitly relied on Geduldig's holding that discrimination on the basis
of pregnancy is not discrimination on the basis of sex in holding that the practice of
denying women access to medical services by blockading abortion facilities did not
constitute the "class-based invidiously discriminatory animus" necessary to prove a
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the long history of discrimination against, and subordination
of, women based on their reproductive capacity.
Carrying this logic forward, in 1980, the Court upheld
the Hyde Amendment which limited Medicaid abortion
funding.106 In Harris v. McRae, the plaintiffs argued that the
law violated the Equal Protection Clause because Medicaid
generally funds all medically necessary procedures and the
Hyde Amendment prohibited the funding of medically
necessary abortions.07 The Court found that the class of people
affected by the law was poor women.108 Because poverty is not a
suspect class, the Court declined to apply strict scrutiny and
upheld the law under the rational basis standard by finding
that the government's "legitimate interest in protecting the
potential life" supported the law.109 The Court failed to
acknowledge that the Hyde Amendment denied medically
necessary procedures only to women and the government had no
rational basis for this sex-based disparate treatment. 10 In
Geduldig and Harris, one can readily identify the Court's
blatant refusal to admit that discrimination based on
reproductive capacity, choice, or autonomy is sex discrimination
and that laws which impact some, but not all, women on that
basis are discriminatory.
By relying on the real differences theory, the Court denies
the reality of discrimination against women on the basis of biology
and, particularly, their reproductive abilities and choices. The
real differences theory "strip[s] the ability to become pregnant of
any social meaning, ignoring the ways in which the legal
treatment of pregnancy defines the appropriate roles of women
violation of the civil rights statute, 42 U.S.C. § 1985(3). Bray, 506 U.S. at 271 (citations
omitted) (noting the continued vitality of Geduldig).
106
Harris,448 U.S. 297.
107
Id. at 300-01.
108 Id. at 323.
109 Id. at 324.
110 Id. In fact, the Court did not analyze Harris v. McRae as a sex discrimination
case because it limited the "class" to poor women, as it had previously done in Geduldig
by limiting that class to pregnant women. In Harris, the Court further held that the
privacy right to an abortion did not come with a right to have the government fund an
abortion. It concluded that there is no right to abortion funding under the Equal
Protection Clause because it is a procedural guarantee and not a substantive one. This is
a very different conclusion than various state courts had reached, some of which did find
that funding all "medically necessary" procedures for men and not all "medically
necessary" procedures for women was a violation of the Equal Protection Clause. See
infra Part III.
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'
and, consequently, dictates women's place in society."111
Until
discrimination analysis acknowledges that the "real" biological
difference distinction is used to the disadvantage of women,
women will never be equal under the law.
The ERA would end the real differences approach. As
further explored in Part III, state courts construing their own
ERAs have generally recognized that when unique physical
characteristics are used to prejudice women, the purpose of
their respective ERAs is compromised, thus rejecting the
Supreme Court's holdings in Geduldigl2 and Harris.113 Under
the ERA, the Supreme Court could no longer ignore the fact
that women are discriminated on the basis of their
reproductive capacity, and the Court would be prevented from
upholding blatantly discriminatory laws on any rational basis.
C.
Covert Discriminationand the Need for Disparate
Impact Analysis
Another difficulty with current equal protection
jurisprudence is its inability to address the ubiquity of sex
discrimination.114 Most laws that have a disparate impact on
women are the product of subtle attitudes and entrenched
stereotypes about gender roles that exhibit the same
constitutional infirmities as laws that overtly classify men and
women, but are not redressed in the same way.115 Many rules
that appear neutral are premised on stereotypes of male-female
roles, such as the idea that men should and do provide for the
family by earning wages, while women are responsible for
childbearing and childrearing.116 "Legal rules, moreover, often
were built on male norms, but the process of designing such
'male-centered' rules rarely includes-and more rarely provides
evidence of-overt discriminatory intent."117
Current equal protection jurisprudence offers no remedy
for these more insidious forms of discrimination because it
rejects disparate impact analysis. In Washington v. Davis, the
111 David H. Gans, Stereotyping and Difference: Planned Parenthood v. Casey
and the Future of Sex DiscriminationLaw, 104 YALE L.J. 1875, 1883 (1995).
112 Geduldig v. Aiello, 417 U.S. 484 (1974).
13 Harris, 448 U.S. at 297; see also Bray v. Alexandria Women's Clinic, 506
U.S. 263 (1993).
114 Mayeri, supra note 57, at 1252.
115 Id.
116 Id. (footnotes omitted).
117 Id. (footnotes omitted) (quoting Memorandum from Phyllis Segal to ERA
Legislative History Project (Mar. 21, 1983) (on file with Schlesigner Library, Radcliffe
Institute, Harvard University, Catherine East Papers, Box 23, Folder 29)).
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Court held that race discrimination challenges to facially
neutral governmental action require proof of discriminatory
purpose to trigger strict scrutiny review under the Equal
Protection Clause.118 The Court applied this analysis to sex
discrimination in Personnel Administrator of Massachusetts v.
Feeney.11 9 In that case, the Court rejected a challenge to
Massachusetts' policy of granting a lifetime preference to
veterans for state civil service positions.20 Like the law at issue
in Washington, this one was neutral on its face.121 However,
because over ninety-eight percent of veterans in Massachusetts
were male at that time, the preference overwhelmingly favored
male applicants.122
In ruling against the challenge, the Court held that
"purposeful discrimination is the condition that offends the
Constitution."123 Since the plaintiffs could not show that the
law was enacted because of, not just in spite of, its adverse
impact on women, the Court found that the Massachusetts
veterans' preference did not violate the Equal Protection
Clause.24 Even the dissenters in Feeney did not move far from
an intent-based inquiry.125 In his dissent, Justice Marshall wrote
that Massachusetts absolute veterans' preference "evinces
applied
and
discrimination,"
gender-based
purposeful
heightened scrutiny to the policy on that basis.126
The impact of Washington, Feeney, and their progeny is
that as discrimination becomes more subtle, those who are
discriminated against find less and less protection under the
Constitution.127 This is particularly detrimental for women
because many "laws and policies [] are embedded in sexist
stereotypes but expressed in gender neutral language."128
11 Washington v. Davis, 426 U.S. 229, 239 (1976).
119 Personnel Administrator of Mass. v. Feeney, 442 U.S. 256 (1979).
120 Id.
121 Id. at 274.
122 Id. at 270.
123 Id. at 274 (citations omitted) (internal quotation marks omitted).
124 Id. at 280.
125 Id. at 281-82 (Marshall, J., dissenting).
126
Id.
127 See Charles R. Lawrence III, The Id, the Ego, and Equal Protection:
Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 323 (1987) ("[R]equiring proof
of conscious or intentional motivation as a prerequisite to constitutional recognition that
a decision is race-dependent ignores much of what we understand about how the human
mind works." (footnote omitted)); see also Reva Siegel, Why Equal Protection No Longer
Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L. REV. 1111,
1145 (1997).
128 Ann E. Freedman & Sylvia A. Law, Thomas I Emerson: A Pioneer for
Women's Equality, 38 CASE W. RES. L. REV. 539, 551 (1988).
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Further, "courts fail to question the assumptions that social
institutions are gender-neutral, and that women and men are
therefore similarly related to those institutions."129 In order to
address latent gender discrimination in employment, courts
have interpreted Title VII to prohibit policies and practices
which have a disparate impact on women, even where there is
no discriminatory intent.30 However, discriminatory impact
claims have been severely limited since their initial creation.
Claims which do not involve objective measures, such as
employment testing, are rarely successful.131
Under the ERA, evidence of a purpose or intent to
discriminate would not be required to invalidate governmental
action that has a disparate impact on gender.132 Rather,
heightened scrutiny would apply to those laws which reinforce
or perpetuate patterns similar to those associated with facial
or intentional discrimination. 33 Strict review of indirect,
covert, or unconscious sex discrimination is essential to effect
an absolute ban on gender discrimination and only the ERA
can accomplish that goal.
III.
PASSING THE ERA TO CURE THE LIMITATIONS OF EQUAL
PROTECTION JURISPRUDENCE IN ACHIEVING
REPRODUCTIVE JUSTICE
Without significant reimagining of the Supreme Court's
equal protection jurisprudence, it appears that women's rights
advocates have achieved as much as can be achieved under
129
Edieth Y. Wu, Short Essay, American Women-The Struggle Continues, 12
J.L. & SOC. CHALLENGES 13, 22 (2010).
130 See Siegel, supra note 127, at 1144-45; see also Kathryn Abrams, Gender
Discrimination and the Transformation of Workplace Norms, 42 VAND. L. REV. 1183,
1226-30 (1989); Wharton, supra note 18, at 1226. Under Title VII, employment practices
which have the effect of discriminating on some prohibited basis are illegal. See 42 U.S.C.
§ 2000e-2(k) (1991); see also Griggs v. Duke Power Co., 401 U.S. 424 (1971). To state a
prima facie case under the disparate impact theory, a plaintiff must show that a facially
neutral employment practice causes women to experience substantially different
opportunities or employment status than men. See 42 U.S.C. § 2000e-2(k) (1991); Griggs
v. Duke Power Co., 401 U.S. 424 (1971). Once the plaintiff meets her burden, the
defendant will have to show that the practice is "job related" and "consistent with
business necessity." 42 U.S.C. § 2000e-2(k)(1)(A)(i) (1991). If the employer meets this
burden, then the plaintiff can still succeed if she shows that a less discriminatory
alternative employment practice would serve the same purpose. Id. § 2000e-2(k).
131 See generally Michael Selmi, Was the DisparateImpact Theory a Mistake?,
53 UCLA L. REV. 701 (2006) (concluding that disparate impact theory has had a limited
impact outside of cases involving written employment tests and suggesting that the
theory has had the inadvertent impact of limiting intentional discrimination theory).
132 See Wharton, supra note 18.
133 Id.
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existing law. In fact, rights that women do have continue to be
constrained. The new laws proposed or passed in recent memory
which impact women all seem to restrict their rights,
particularly with regard to their rights to bodily integrity and
reproductive freedom.'1 4 Even more troubling, laws of equal
application, like the Affordable Care Act, have been struck down
in whole or in part where they would act to protect the rights of
women-because women do not have the constitutional
protection necessary to defend their right to bodily integrity in
the face of the purported religious beliefs of others.135
The ERA would extend the scope of protection against sex
inequality well beyond that which is currently provided for by the
Equal Protection Clause. State high courts' interpretations of
their respective state constitution ERAs 136 illustrate that the ERA
is better situated to achieve comprehensive gender equality
under the law, particularly with regard to discrimination based
137
on women's reproductive capabilities.
A.
More Favorable Outcomes under the ERA, as Seen in
State Courts
In direct contradiction to the Supreme Court's holding
in Harris v. McRae,138 state courts successfully have invoked
ERAs to support government funding of abortions for low
income women. "Some states[,] ... notably Connecticut and
New Mexico, have applied a strict equality analysis to hold that
their constitutions require state funding of medically necessary
abortions for low income women."139 In New Mexico Right to
Choose/NARAL v. Johnson, the New Mexico Supreme Court
reviewed N.M. Rule 766, which restricted state funding of
134 See Sarah M. Stephens, The Search for Authenticity and the Manipulation
of Tradition: Restrictions on Women's Reproductive Rights in the United States and
Egypt, 19 CARDOZO J. OF LAW & GENDER 325, 326-27 (2013).
135 See, e.g., Burwell v. Hobby Lobby Stores, Inc., No. 13-354 (U.S. June 30,
2014) (finding the contraceptive mandate violative of RFRA).
136 The following states have ERAs in their Constitutions: Alaska, California,
Colorado, Connecticut, Florida, Hawaii, Illinois, Iowa, Louisiana, Maryland,
Massachusetts, Montana, New Hampshire, New Mexico, Pennsylvania, Texas, Utah,
Virginia, Washington, and Wyoming. LESLIE W. GLADSTONE, CONG. RESEARCH SERV.,
RS20217, EQUAL RIGHTS AMENDMENTS: STATE PROVISIONS 3-6 (2004), available at
https://maloney.house.gov/sites/maloney.house.gov/files/documents/olddocs/era/082304c
rsStateERAs.pdf.
137"However... not every state with an ERA has adopted strict scrutiny or
absolute scrutiny. A few follow federal equal protection law in construing their ERAs and
apply intermediate scrutiny." Davis, supra note 40, at 434 (footnotes omitted). A federal
constitutional amendment would remedy the lack of uniformity across jurisdictions.
13- Harris v. McRae, 448 U.S. 297 (1980).
139 Davis, supra note 40, at 442.
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abortion "to those certified by a physician as necessary to save
the life of the mother or to end an ectopic pregnancy, or when
140
the pregnancy resulted from rape or incest."'
The court first held that strict scrutiny was appropriate
even though Rule 766 addressed a physical characteristic
unique to women, plainly abrogating the real differences
approach.141 In making this determination, the court
specifically noted "the fact that [s]ince time immemorial,
women's biology and ability to bear children have been used as
a basis for discrimination against them."' 42 The court found
that New Mexico's ERA demanded it look "beyond the
classification to the purpose of the law" to decide whether the
143
law under scrutiny operated to the disadvantage of women.
"The question at hand is whether the government had the power
to turn th[e] capacity [to bear children] limited as it is to one
gender, into a source of social disadvantage."' 144 The court found
that both sexes were "similarly situated" in relation to Medicaid
coverage because the criteria for Medicaid eligibility was the
same for each sex and the state was required to fund all
medically necessary services. 145 The court also determined that
there was "no comparable restriction" on coverage for any
condition that was "unique to men."146 Drawing on these facts,
the court struck down N.M. Rule 766, holding that the rule
unconstitutionally "single[d] out for less favorable treatment a
gender-linked condition that is unique to women"'14 and that
the interests "put forward by the state [in] costs savings and
interest in potential life of the unborn[] were insufficient to
' 4
justify the measure."'
Likewise, in Doe v. Maher,149 the Connecticut Superior
Court found unconstitutional a regulation restricting Medicaid
payment for therapeutic abortionsso to those necessary to save
the life of the mother. 151 The court criticized the five member
majority in Harris v. McRae who held that similar restrictions
140 New Mexico Right to Choose/NARAL v. Johnson, 975 P.2d 841, 846 (N.M. 1998).
141 Id. at 854.
142 Id. (alteration in original) (citations omitted) (internal quotation marks omitted).
143
Id.
144 Id. (citations omitted) (internal quotation marks omitted).
145 Id. at 855.
146 Id. at 856.
147 Id. at 856-57.
148
Davis, supra note 40, at 443.
149 Doe v. Maher, 515 A.2d 134 (Conn. Super. Ct. 1986).
150 A "therapeutic abortion" is an "abortion[] necessary to ameliorate a
condition that is deleterious to a woman's physical or psychological heath." Id. at 135 n.4.
151 Id. at 135.
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under the Hyde Amendment did not violate the federal Equal
Protection Clause.52 The court found "it difficult to accept the
rationale of the majority of the United States Supreme Court"
that held "the restriction on Medicaid [funded] abortions [does]
not impinge on the constitutional right of liberty and the
classification is not predicated on 'criteria that are, in a
constitutional sense, suspect."'53 The court also disagreed that
the discriminatory restrictions on Medicaid funding "were
rationally related to the legitimate governmental objective of
'protecting the potential life of the fetus." ' 154
The Connecticut court rejected the formal equality
framework used by the Court in Harris v. McRae. The court
found that the Connecticut regulation violated the privacy
rights of "the plaintiff poor woman class and the physician
class under the state's due process clause."155 The court went on
to find that the regulation discriminated on the basis of sex in
violation of the state's ERA.156 The court pointed out that under
the Medicaid program, all medically necessary expenses for men
and women are covered, except for therapeutic abortions that
are not life-threatening. 57 The court also specifically pointed out
that all medical expenses associated with male reproductive
health, family planning, and medical conditions unique to men
were covered.158 Most importantly, the court found that:
[B]y adopting the ERA, Connecticut determined that the state
should no longer be permitted to disadvantage women because of
their sex including their reproductive capabilities. It is therefore
clear, under the Connecticut ERA, that the regulation excepting
medically necessary abortions from the Medicaid program
159
discriminates against women, and, indeed, poor women.
Applying the strict scrutiny standard, the court went on to find
the regulation violated Connecticut's ERA.160
152
Id. at 158.
Id. (quoting Harris v. McRae, 448 U.S. 297, 322, 324 (1980)).
Id.
155 Id. at 157.
153
154
166
157
158
Id. at 160.
Id. at 159.
Id.
159 Id. at 160.
160 Id.
at 162; see also Moe v. Sec'y of Admin. & Fin., 417 N.E.2d 387, 397
(Mass. 1981) (holding that the failure to pay for medically necessary abortions violated
the due process clause of the Massachusetts constitution).
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B. Applying an ERA Analysis to Burwell v. Hobby Lobby
Stores, Inc.
In contrast to the rulings of these and other state
supreme courts, 161 the United States Supreme Court consistently
refuses to recognize discrimination based on women's
reproductive capabilities as sex discrimination. If the ERA were
enacted, it would force the Court to re-evaluate its position on
the treatment of pregnancy and the related issue of abortion
funding.162 It would also prohibit the Court from relying on sex
161 "The majority of state courts, however, have found that a central reason
that their ERA was enacted was to treat sex discrimination with at least the same
degree of skepticism as racial discrimination, requiring a higher level of review than
intermediate scrutiny." Davis, supra note 40, at 434.
162 It is likely that the innumerable restrictions on abortion funding would be
struck down following the passage of the ERA. For an explanation of these restrictions,
see JON SHIMABUKURO, CONG. RESEARCH SERV., RL33467, ABORTION: JUDICIAL
HISTORY AND LEGISLATIVE RESPONSE 12-13 (2014). For example,
The Hyde Amendment process has not been limited to appropriations for
[Health and Human Services (HHS)]. Beginning with P.L. 95-457, the [DOD]
appropriations measures have contained Hyde-type abortion limitations. This
recurring prohibition was eventually codified and made permanent by P.L.
98-525, the [DOD] Authorization Act of 1984. In 1983, the Hyde Amendment
process was extended to the Department of the Treasury and Postal Service
Appropriations Act, prohibiting the use of funds for the Federal Employees
Health Benefits Program (FEHBP) to pay for abortions, except when the life
of the woman was in danger. Prior to this restriction, federal government
health insurance plans reportedly paid an estimated $9 million for both
therapeutic and non-therapeutic abortions .... Under [DOJ] appropriations,
funding of abortions in prisons is prohibited, except where the life of the
mother is endangered, or in cases of rape. First enacted as part of the FY1987
Continuing Resolution, P.L. 99-591, this provision [was] reenacted as part of
the annual spending bill in each subsequent fiscal year .... [S]ince 1979,
restrictive abortion provisions have been included in appropriations
measures for the District of Columbia .... Under the so-called Dornan
Amendment [P.L. 100-462] D.C. was prohibited from using both appropriated
funds and local funds to pay for abortions .... [T]he Family Planning
Services and Population Research Act of 1970, P.L. 91-572 (42 U.S.C. 300a-6),
bars the use of funds for programs in which abortion is a method of family
planning. The Legal Services Corporation Act of 1974, P.L. 93-355 (42 U.S.C.
2996f(b)(8)), prohibits lawyers in federally funded legal aid programs from
providing legal assistance for procuring non-therapeutic abortions and
prohibits legal aid in proceedings to compel an individual or an institution to
perform an abortion, assist in an abortion, or provide facilities for an
abortion .... [Additionally,] the Civil Rights Commission Amendments Act of
1994, P.L. 103-419 (42 U.S.C. sec. 1975a(f), prohibits the commission from
studying or collecting information about U.S. laws and policies concerning
abortion. [Finally, under the Patient Protection and Affordable Care Act (ACA,
P.L. 111-148),] individuals who receive a premium tax credit or cost-sharing
subsidy will be permitted to select a qualified health plan that includes coverage
or elective abortions. However, to ensure that funds attributable to such a credit
or subsidy are not used to pay for elective abortion services, ACA prescribes
payment and accounting requirements for plan issuers and enrollees .... [The
plan issuer is] required to collect two separate payments from each enrollee in the
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stereotyping or formalistic and superficial analyses when
deciding sex-related cases. As illustrated by New Mexico Right
to Choose and Doe v. Maher, a rehearing of cases such as
65
Harris v. McRae,163 Maher v. Roe,b4 or Rust v. Sullivan1
within the ERA framework would produce a different outcome.
Under the ERA, the Supreme Court also would have likely
reached a different decision in its most recent opinion to impact
women's reproductive choices: Burwell v. Hobby Lobby Stores,
Inc.166 In Hobby Lobby, the Court ruled that Hobby Lobby, as a
privately owned corporation, 167 has the right to refuse to comply
plan"[-a separate payment for coverage of elective abortions-and] deposit the
separate payments into separate allocation accounts that consist solely of each
type of payment and that are used exclusively to pay for the specified
services ....The ACA also permits a state to prohibit abortion coverage in
exchange plans by enacting with such a prohibition.
Id. at 12-14. In obvious discrimination, "the ACA requiresthat there be at least one multistate plan in each exchange in each state that does not cover abortion services beyond
those permitted by the Hyde Amendment." What Women Need to Know About Healthcare
Reform, NAT'L WOMEN'S LAW CTR (2010), available at http://www.nwlc.org/sites/
default/files/pdfs/hcr _abortion_updatedl1-10.pdf (emphasis added). Meanwhile, states
are allowed to pass laws to prohibit all private insurance coverage of abortion within the
state, banning coverage in plans both inside and outside an exchange. SHIMABUKURO,
supra, at 14 (referring to Patient Protection and Affordable Care Act, Pub. L.No. 111-148
sec. 1303(a)(1) (2010).
163 Harris v. McRae, 448 U.S. 297 (1980); see also Williams v. Zbaraz, 448 U.S.
358, 369 (1980) (finding that an Illinois statutory funding restriction that was
comparable to the Hyde Amendment also did not contravene the constitutional
restrictions of the Equal Protection Clause of the 14th Amendment).
164 Maher v. Roe, 432 U.S. 464, 480 (1977) (holding that the Equal Protection
Clause does not require a state participating in the Medicaid program to pay expenses
incident to nontherapeutic abortions simply because the state has made a policy choice to
pay expenses incident to childbirth and holding that Connecticut's policy of favoring
childbirth over abortion did not impinge upon the fundamental right to privacy
recognized in Roe v. Wade).
165 Rust v. Sullivan, 500 U.S. 173, 203 (1991) (upholding on both statutory and
constitutional grounds the Department of Health and Human Service's Title X
regulations restricting recipients of federal family planning funding from using federal
funds to counsel women about the option of abortion). The Court reasoned that there
was no constitutional violation because the government has no duty to subsidize an
activity simply because it is constitutionally protected and because a woman is "in no
worse position than if Congress had never enacted Title X." Id.; see also Beal v. Doe,
432 U.S. 438, 446-47 (1977) (holding that "nothing in either the language or the
legislative history of Title XIX" of the Social Security Act (Medicaid) requires a
participating state to fund every medical procedure falling within the delineated
categories of medical care). The Court ruled that it was not inconsistent with the act's
goals to refuse to fund unnecessary medical services. However, the Court indicated that
Title XIX left a state free to include coverage for non-therapeutic abortions should it
choose to do so. Beal, 432 U.S. at 446-47; see also Poelkher v. Doe, 432 U.S. 519, 521
(1977) (upholding a municipal regulation that denied indigent pregnant women nontherapeutic abortions at public hospitals).
166 Burwell v. Hobby Lobby Stores, Inc., No. 13-354 (U.S. June 30, 2014).
167 The majority opinion attempted to cast this decision as narrow because it
applies to a "for-profit closely held corporation[] ." Id. slip op. at 31. Hobby Lobby
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with the Affordable Care Act's mandate that health insurance
plans offered to employees make certain contraceptives
available.168 Hobby Lobby objected to the provision of four
9
particular contraceptives, which it denoted as "abortifacients16
and argued that offering an insurance policy which covered those
particular contraceptives violated its rights under the First
Amendment and the Religious Freedom Restoration Act
(RFRA).170
[from]
the
"Government
RFRA prohibits
The
substantially burden[ing] a person's exercise of religion..."
unless the Government "demonstrates that application of the
burden to the person-(1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest."'' 7 The Court
determined that the RFRA applies to privately held corporations
and that the owners of Hobby Lobby hold sincere Christian
beliefs that life begins at conception and that offering a health
insurance policy which covers the four contraceptives would be
employs 13,000 employees in 600 locations through 39 states. Frederick Mark Gedicks
& Andrew Koppelman, Invisible Women: Why an Exemption for Hobby Lobby Would
Violate the Establishment Clause, 67 VAND. L. REV. EN BANC 51, 53 (2014). Forbes
Magazine estimates Hobby Lobby's annual revenue exceeds $2 billion. Id. at 53 n.6. It
is estimated that as many as 90% of all businesses in the United States are closely held
and that closely held corporations employ more than half of the American workforce.
Aaron Blake, A LOT of People Could Be Affected by the Supreme Court's Birth Control
Decision-Theoretically, WASH. POST (June 30, 2014), http://www.washingtonpost.comI
blogs/the.fix/wp/2014/06/30/a-lot-of-people-could-be-affected-by-the-supreme-courts-birth
control-decision/.
168 Hobby Lobby, slip op at 48. The Affordable Care Act (ACA) does not itself
require insurance plans to cover contraception. Rather, the ACA requires coverage of
preventative women's healthcare without cost sharing by patients. The Institute of Medicine
used neutral scientific and medical criteria to determine that preventative care coverage
should include all FDA-approved contraceptive methods. George J. Annas et al., Money, Sex,
andReligion-The Supreme Court'sACA Sequel, 371 NEW ENG. J. MED., 862, 862 (2014).
169 Hobby Lobby, slip op. at 12. Both federal law and the American Medical
Association specifically negate this factual contention. While the Court referred to
these medications as "abortifacients" in its opinion, this is a misnomer. Id. The four
medications that Hobby Lobby objected to are two intrauterine devices (IUD) and two
emergency contraceptive pills. None of these medications will disrupt an established
pregnancy. While it is a common belief, even at the Supreme Court, that an IUD will
prevent implantation of a fertilized egg, current science indicates that IUDs prevent
fertilization. See Brief for Physicians for Reproductive Health et al. as Amici Curiae in
Support of Defendants-Appellees at 12-20, Conestoga Wood Specialties Corp. v.
Sebelius, 724 F.3d 377 (3rd Cir. 2013) (No. 13-1144).
170 Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb-2000bb-4,
(1993), amended by Religious Land Use and Institutionalized Persons Act of 2000, 42
U.S.C. § 21C (2000) (RFRA).
171 Id. (note this statute incorporates the strict scrutiny standard currently
denied to sex discrimination claims).
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contrary to that religious belief.172 The Court, ruling in favor of
Hobby Lobby, held that the Affordable Care Act's contraceptive
mandate substantially burdens the exercise of religion provided
for in the RFRA; and the mandate is not the least restrictive
means of furthering the government's interest.173 "For the first
time, the Supreme Court exempted for-profit businesses from
employee-protective law in the name of religion."174 Not
surprisingly, the only other legislative exemptions for for-profit
corporations are statutes which allow hospitals to refuse to
provide critical reproductive healthcare: abortions.175
The majority opinion in Hobby Lobby is overtly
prejudicial against women. Singling out women's reproductive
choices, the Court states "[t]his decision concerns only the
contraception mandate and should not be understood to hold
that all insurance coverage mandates, e.g., for vaccinations or
blood transfusions, must necessarily fail if they conflict with an
employer's religious beliefs."'176 Thus, employers and federal
healthcare programs may discriminate against women in their
medical care, but the Court's opinion should not be read to
apply where it might impact men or non-reproductive related
issues.177 Under the Court's prior decisions in Geduldig and its
progeny, this result is permissible.178
The Hobby Lobby decision demonstrates the need for a
constitutional guarantee of equality and provides a good
example of the ongoing tension between women's rights and
179
other constitutionally or statutorily protected rights.
Opponents of women's rights have been using their right to
religious freedom as a sword in the so-called "War on
Women."80 Without a constitutional shield, women's rights,
Hobby Lobby, slip op. at 30.
113 Id. at 39. The Court did not reach Hobby Lobby's First Amendment
argument. Id. at 48.
174 Elizabeth Sepper, Reports of Accommodation's Death Have Been Greatly
Exaggerated, 128 HARV. L. REV. F. 24, 28 (2014).
175 Id. (citing 42 U.S.C. § 300a-7(b)).
176 Hobby Lobby, slip op. at 45. Although outside the scope of this article, the
Court's opinion also appears to violate the Establishment Clause by favoring religion, as
opposed to the absence of belief, and specifically the Christian faith. Here, he specifically
points out that medical procedures objected to on religious grounds by Jehovah's
witnesses would be covered despite their religious beliefs. See generally Gedicks &
Koppelman, supra note 167.
177 The Supreme Court arguably sidestepped this issue by suggesting that the
government could just cover the cost of the contraceptives, however this suggestion
would still place a significant and unnecessary burden on female employees and on the
government. Hobby Lobby, slip op. at 39.
178 See supra Part II.B.
179 See Stephens, supra note 134, at 326-27.
172
180 Id.
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even the constitutionally protected right to privacy guaranteed
by Griswold v. Connecticut, s will be outweighed by the right to
freedom of expression, whether provided for by statute or the
First Amendment.
If analyzed under the ERA, Hobby Lobby's challenge to
the contraceptive mandate would have failed. The Court still
may have concluded that the RFRA applies to private
corporations and that the contraception mandate interfered with
Hobby Lobby's exercise of that right under the RFRA. However,
the Court would also have had to acknowledge that the RFRA is
federal government action and, as applied in Hobby Lobby,
violates women's right to equal treatment under the law and
deprives them of a valuable legal entitlement by preventing
their equal access to a federally mandated insurance program.
Analyzing Hobby Lobby within the ERA framework shows that
the RFRA works to unconstitutionally disadvantage women
because of their sex, in the same way that restrictions on
Medicaid funding for medically necessary abortions were found
unconstitutional under state ERAs in New Mexico Right to
Choose/NARAL v. Johnson and Doe v. Maher.
Under the ERA, recent Supreme Court jurisprudence
that has negatively impacted women's rights likely would have
been decided differently, and, indeed, the passage of the ERA
would act to revise the legal basis for some of these precedents.
Decisions such as Hobby Lobby, demonstrate both the
limitation of the litigation strategy pursued by women's rights
advocates and the reinvigorated need to write the "principle of
equal rights ... into the framework of our government."12
CONCLUSION
The litigation strategy pursued by equal rights
advocates achieved many of the results hoped for by feminists
in the 1960s and 1970s. There has been arguably little progress
since then. Women continue to be treated unequally under the
law, in part because the intermediate scrutiny standard
permits gender discrimination in certain circumstances. This is
particularly true when analyzing laws that deal with women's
18, Griswold v. Connecticut, 381 U.S. 479 (1965) (upholding the right of married
people to obtain and use contraception pursuant to a right of marital privacy); see also
Roe v. Wade, 410 U.S. 113 (1973) (extending the right to privacy to protect a woman's
right to obtain an abortion); Eisenstadt v. Baird, 405 U.S. 438 (1972) (extending Griswold
to unmarried persons on equal protection grounds).
182 Francis,supra note 29.
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biological differences from men and impact women's
reproductive autonomy. Further, it appears that the Supreme
Court is unwilling to expand existing constitutional
jurisprudence to grant any greater protection against
discrimination than currently exists. Our best hope for equality
is an expansive constitutional amendment which purports to
outlaw overt and covert gender discrimination. "No ordinary
statute can provide the bedrock protection assured by a
Constitutional Amendment. No Court decision can provide that
protection, for the courts may interpret, but they may not
amend the Constitution."183
In 1978, and again in 1981, the bipartisan United States
Commission on Civil Rights urged ratification of the ERA,
declaring:
attainment of full, equal rights for women and men requires
ratification of the proposed amendment. The need for the ERA is at
least as great today as it was when Congress proposed the
amendment to the States in 1972. Measured by any standard, gender
lines have not been erased, and the history of unequal treatment of
men and women has not been adequately redressed under existing
law. Moreover, as a result of experiences under State constitutional
amendments virtually identical to the proposed Federal amendment,
it is even clearer now than it was in 1972 that the ERA is the
appropriate remedial action to address this inequality and assure
8 4
women and men equal justice before the law.1
This statement is as true today as it was then. Equality
of rights for women and men remains as elusive now as it did
in 1981, but state ERAs have shown that greater equality can
be achieved through a constitutional amendment. The ERA
continues to be an active goal of women's rights organizations
and remains viable before the United States Congress, as well
as legislatures around the country. 85 It is time to re-focus on
the ERA as the avenue to create a new paradigm for analyzing
case law, to undo the negative jurisprudence which allows
discrimination on the basis of gender stereotypes and women's
biological ability to bear children, and to create new
momentum for true equality under the law.
183 UNITED STATES COMM'N ON CIVIL RIGHTS, THE EQUAL RIGHTS
AMENDMENT: GUARANTEEING EQUAL RIGHTS FOR WOMEN UNDER THE CONSTITUTION 5
(1981),
available at
https://www.law.umaryland.edu/marshall/usccr/documents/
cr11068.pdf (citing American Bar Association, About the ERA 2 (Apr. 1980)).
184
Id. (quoting UNITED STATES, COMM'N ON CIVIL RIGHTS, STATEMENT ON THE
EQUAL RIGHTS AMENDMENT 4 (1978)).
185 See supra notes 57-63 and accompanying text.
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ADDRESS
DELIVERED SEPTEMBER 18, 2014
Chai Feldblum*
417
Chai Feldblum is a Commissioner at the Equal Employment Opportunity Commission (EEOC). Her
remarks at this symposium, now included in this volume with minor clarifying edits, reflect Commissioner Feldblum's personal opinions and do not reflect official positions of the EEOC. In light of the
informal nature of Commissioner Feldblum's remarks, there are no citations in this piece. Commissioner Feldblum would like to make clear, therefore, that any mistakes or omissions in these remarks are
hers alone. There is one update included in this piece, in footnote 2. Commissioner Feldblum has modified sentences from the verbatim transcript for purposes of clarity.
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INTRODUCTION
Thank you so much, Dean Perdue, and for all the students who have
worked so hard to pull this event together. And thank you, Dean Perdue,
for that introduction. Dean Perdue knew me for over 18 years while I was
teaching at Georgetown Law School and I am so glad she didn't tell any
embarrassing stories about me -- because, I assure you, she could have.
You have heard a lot this morning about the need in 1964 for Congress to
enact prohibitions against discrimination on the basis of race, national
origin and religion. I am going to use my time, therefore, to talk about gender equity: the addition of the sex discrimination prohibition in Title VII,
the advances that have occurred since passage of that law, and the miles that
we still have to go to achieve full gender equity.
The first panel we heard this morning set up marvelously the framework
I want to use for my remarks. Under this framework, achievement of any
social justice goal requires three variables operating in concert - law, policies in practice and social norms.
By "law," I mean words. Lots of words. This includes the words of a
statute that has been passed by a legislature, either Congress or a state or a
local legislature. It includes the words of regulations and guidances that are
issued by agencies that are charged with implementing the law, like the
EEOC was charged with implementing the employment provisions of the
Civil Rights Act. And it includes the words of court cases in which courts
are interpreting specific provisions of a law. All of these words make up
"the law."
By "policies in practice," I mean whether the words in the statutes, regulations, guidances, and court decisions are reflected in the daily policies and
practices of organizations that are governed by the law. Has the social goal
the law is seeking to achieve actually been absorbed into the sinews of
those organizations? For example, is a law which states, "you may not discriminate based on certain characteristics in employment decisions" - is
that prohibition actually reflected in the daily policies of employers? Or is
the prohibition simply just words?
By "social norms," I mean what ordinary people believe should be the
right rules to govern society. A government can have lots of laws, and organizations can have lots concrete policies implementing those laws, and it
will still not be enough until people across society, in their hearts and
minds, believe the social justice goal that is trying to be achieved by those
laws and policies is a good thing -- there will never be a full achievement of
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that goal. There will be always be ways for people to stop change that they
don't believe in.
There is an interesting synergism and dynamic between these three variables. They are not static or linear. A society often has to start off with enacting a law to require a certain social goal because many people will not
conform their actions to that goal unless they are legally required to do so.
But social norms with regard to that goal have to be sufficiently evolved
such that - in our democratic system -- enough people believe the government should enact that goal. If a law is passed and effectively enforced,
then organizations governed by the law will begin to put into place policies
to comply with the law. This will begin to transform the words of the law
into actual change on the ground. As people then begin to conform their
actions to these required policies that may help them accept the appropriateness of the social goal. After complying with employment nondiscrimination requirements, it may not seem unimaginable to an individual
to work alongside a person of color or a woman. And as the social goal becomes more accepted and "normal," that further helps organizations to
comply with the law (because the legal requirement does not seem as foreign) and it helps people comply with the required policy (because they
agree with the policy now). So there is a synergistic, dialectical effect constantly in play among these three variables.
THE SEX DISCRIMINATION PROHIBITION IN TITLE VII OF THE CIVWL RIGHTS
ACT OF 1964 - SOME HISTORY
Let's use this framework to discuss the evolution of the sex discrimination prohibition of Title VII of the Civil Rights Act of 1964. Title VII prohibits private employers and unions from discriminating on the basis of
race, color, national origin, religion and sex. As you heard this morning,
when Title VII was first introduced, it did not include sex. In fact, as many
people noted this morning, one of the reasons why many members of the
House of Representatives voted to add sex to the list of prohibited categories of discrimination was to make it a "poison pill" for the bill because
they didn't want the bill to pass.
When people tell this story, they often add the assertion that Congress
never even thought about the issue of sex discrimination before it added the
sex discrimination prohibition to Title VII as a poison pill. That is not a
completely accurate rendition of the story. Indeed, for those of you working at the law review that will publish papers from this symposium, here is
an interesting fact. I think Prof. Cary Franklin tracked down what was one
of the first times (if not the first time) this mythical story was set forth in a
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document following passage of Title VII. It was one paragraph written by
law students at the Harvard Law Review, in the early seventies, with just
one citation. (The citation was to a statement by Representative Edith
Green on the House floor, the one woman Member of Congress who opposed adding the sex discrimination provision because she was afraid that it
would bring down the whole bill.) Relying on Representative Green's
statement, the paragraph stated - in a conclusory fashion - that Congress
had never thought about the issue of sex discrimination prior to passage of
the Civil Rights Act, that the sudden addition of sex on the House floor was
designed simply to kill the bill, and that the implications of the sex discrimination provision had therefore never been understood or thought-through
by Congress.
This simplistic view of how sex got added to Title VII was picked up and
used repeatedly by the courts - particularly whenever a court was restricted
the scope of the sex discrimination and justified that restriction on the
grounds that Congress could never have imagined the broader scope of the
provision being argued for in the case before it.
So the lesson of this story is that Law Review articles sometimes do matter - at least in creating false information.
The more complete story about the addition of sex to Title VII is as follows. Congress had, in fact, been debating and grappling with the issue of
sex discrimination for forty years prior to passage of the Civil Rights Act of
1964. But that Congressional debate was not in the context of an employment non-discrimination law applying to private employers and to unions.
Rather, it was in the context of the Equal Rights Amendment (the "ERA")
to the federal Constitution.
The National Women's Party, the key advocate for the ERA, had been
fighting since the 1920's for Congress to add an equal rights amendment to
the federal Constitution. In the 1940s and early 1950s, there had been a fair
amount of activity around the ERA. At that time, the ERA said: "Equality
of rights under the law shall not be denied or abridged by the United States
or by any state on account of sex." If that amendment had passed and been
ratified by the states, no federal or state law could have been enacted that
denied or abridged rights on account of sex.
As you know, Congress did not pass the ERA in the 1940s or 1950s.
Congress did ultimately pass the ERA many years later and sent it to the
states for ratification. And as you all know, ultimately, the states did not
ratify the ERA.
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The reason the ERA did not pass Congress in the 1940s or 1950s, despite
extensive debate in Congress, was that, in 1950, the unions and various
women's groups other than the National Women's Party, prevailed on Congress to add a second sentence to the ERA. That sentence read as follows:
"The provisions of this article shall not be construed to impair any rights,
benefits, or exemptions conferred by law upon persons of the female sex."
So the first sentence of the ERA said, "No law may take sex into account,"
and the second sentence said, "Yes, laws may take sex into account if they
confer rights, benefits, or exemptions just on women."
What was going on here? It was a combination of practical politics and
social norms.
As a matter of social norms, in 1950, the assumption was that women
were really different from men. Their true jobs were to be wives and mothers. Some women might have to go into the workforce because of financial
necessity, but that was not their true job.
As a matter of practical politics, the unions and women's groups had
successfully gotten labor laws enacted in various states, and upheld against
federal constitutional challenges, by having those laws protect only women
-- on the grounds that women were inherently different than men.
They
managed to get laws that put a limit on the maximum amount of hours that
women could work in a job or that prohibited women from working in jobs
considered too hazardous -- on the grounds that women were inherently different than men. Women were wives and mothers first, so they needed laws
that enabled them to do their real jobs.
For that reason, the unions and women's groups were wary of a blanket
ERA that would not allow any law to "take sex into account." And the
members of the National Women's Party did not want an ERA with the
second sentence because they felt that undermined their entire goal of complete equality for women. So there was an impasse on the ERA.
Now, thirteen years later, in 1963, Title VII is introduced prohibiting discrimination in employment, but not including sex as a prohibited characteristic for making employment decisions. The National Women's Party sees
this as a perfect opportunity to have, at least, some provision in law prohibiting sex discrimination. A number of the leaders of the National Women's
Party were not supportive of the bill itself. They were fine about placing a
prohibition against taking sex into account in laws that were enacted on
states or the federal government. But many of them did not support a law
that would prohibit private employers from discriminating on the basis of
race. But they figured, as a practical matter, that if such a law was going to
be enacted anyway, at a minimum they wanted sex to be included as well.
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So members of the National Women's Party asked conservative Congressman Howard Smith to introduce an amendment to Title VII, on the
House floor, that would add sex as a prohibited ground for discrimination.
As has been correctly noted, Congressman Smith was a staunch opponent
of the Civil Rights Act and he voted against the final bill in the House. But
what is often not understood is that Congressman Smith was also one of the
chief supporters of the ERA. Indeed, he had been the Congressman who
had introduced the ERA in every Congress for a number of years. So he
himself, like the National Women's Party members, was a strong supporter
of the ERA, although not of the Civil Rights Act.
There were twelve women members of the House at that point. Can you
imagine -just twelve. Eleven out of those twelve members supported adding sex to Title VII. They also supported having Congressman Smith introduce the amendment because, as a matter of practical politics, they hoped
he would help get the amendment passed. They assumed some number of
people would vote for the amendment as a poison pill, that others would
vote for it because they thought it was unlikely to pass anyway, and finally,
there would be people like themselves who would vote for it because they
thought it was the right thing to do. And indeed, the combination of those
groups became the majority that was mustered to pass the amendment in the
House, much to the surprise and chagrin of the leaders of the bill (including
Representative Edith Green, the only woman Member of the House who
voted against the amendment).
There is a very interesting part of this story about how sex managed to
stay in Title VII in the bill that was ultimately passed by the Senate. Much
of the credit for that belongs to a lawyer named Pauli Murray, an African
American lawyer, who was part of the group working for passage of the
Civil Rights Act. In the 1940s, Murray was part of a small cadre of people
who engaged in the direct action of sitting in segregated restaurants and
buses. The actions of that small group of people did not have the same impact as similar actions did a decade later, because, as you heard this morning, one needed the massive direct action that ultimately came into play
during that later time. In any event, Pauli Murray played an incredible role
in the development of civil rights in this country. I urge you to read her autobiography: The Autobiography of a Black Activist, Feminist, Lawyer,
Priest and Poet. I am on a personal mission to get Murray's autobiography
available on Kindle. So if you do go to Amazon to buy her book in print,
please also click on "I would like to see this on Kindle." Maybe that will
help get her amazing story out in the public more. If you read that book,
you will get a sense of some of the work it took to retain the sex discrimination provision in Title VII as the bill moved through the Senate.
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But here is the interesting fact. The words - "no sex discrimination in
employment" -- became part of Title VII. But because social norms were
not yet at a place where men and women were actually perceived to be the
same for purposes of employment, the EEOC, the agency created to implement Title VII, and subsequently the courts, found it hard to accept the
words of the law at face value. They found it hard to imagine and accept
that the law's prohibition on sex discrimination was just like the law's prohibition on discrimination based on race, national origin, and religion.
Here is an example that encapsulates this resistance and lack of understanding. In July 1965, about a year after the Civil Rights Act was passed,
the EEOC opened its doors for business. The Commission quickly ruled
that it was illegal to have "help wanted" ads in newspapers that said: "For
Negroes" or "for Whites." There used to be these things called newspapers,
they had help wanted ads, and people read them. The EEOC ruled that
those ads discriminated on the basis of race and therefore violated Title VII.
But newspapers also ran "help wanted" ads that said "Men wanted" or
"Women wanted." The EEOC ruled, in September 1965, that this practice
did not violate the sex discrimination prohibition of Title VII. The Commission's reasoning was that because the personal inclinations of women
and men were such that many job categories were of interestonly to women
or only to men, segregating these ads by sex was not discrimination. Rather, these ads were simply helping applicants find the jobs they wanted anyway. Of course, if a woman applied for a job in the "men wanted" column, or if a man applied for a job in the "women wanted" column, Title VII
prohibited an employer from not hiring the person based on sex. But the
ads themselves were fine.
This decision by the EEOC so outraged women's rights advocates that it
became the catalyst for the founding of the National Organization of Women. If you go onto NOW's website and look under the "history" tab, you
will see that it describes the EEOC's decision to allow sex-segregated ads
as one of the reasons NOW was created. That was because women's advocates were told (by a few feminists inside the EEOC) that women's advocates needed an organization like the NAACP in order to pressure the
EEOC to do the right thing in implementing the law. And, in fact, one of
the first victories that NOW won was to get the EEOC to change its position and rule that sex-segregated ads violated Title VII.
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THE SEX DISCRIMINATION PROHIBITION IN TITLE VII OF THE CIVIL RIGHTS
ACT OF 1964 - THE EARLY DECADES
After its inauspicious start, the EEOC emerged as a leader in shaping the
law of sex discrimination. The EEOC had various mechanisms in which it
was able to do so. First, when the EEOC found there was reasonable cause
to believe that discrimination had occurred in the context of a charge that
had been brought by an individual against a private employer or a union,
the Commission often issued a Commission decision explaining its legal
reasoning for "finding cause." Second, after a few years, the Commission
began to issue guidelines to implement Title VII, which brought together
many of the legal conclusions the Commission had put forward in its decisions. Finally, once the EEOC was permitted to bring litigation against
employers and unions (which happened through amendments to Title VII
that Congress passed in 1972), the EEOC also set forth its view of the law
through cases that it brought.
Through these different mechanisms, the EEOC set forth various propositions that explained its view of sex discrimination. For example, the
EEOC issued such radical statements as: If an employer hires married men,
it may not refuse to hire married women. And: If an employer hires a man
who has young children, the employer may not refuse to hire a woman who
has young children.
Those really were radical propositions at the time. That is because the
social norms at the time were such that those were natural things that many
employers did and were expected to do. So it was hard for many employers
- and often courts -- to believe that the law would prohibit these practices.
The Commission also concluded that if an employer fired a woman because she was pregnant, that was a form of sex discrimination. And it concluded that if a woman needed time off after childbirth - which, by the
way, women do need - the disability benefits that employers paid to other
workers who needed time off would have to be paid to women as well.
Failing to do so, said the EEOC, was a form of sex discrimination.
The development of law is actually a dance between the three actors that
create law: a legislature, an agency and the courts. After a legislature enacts a law, an agency charged with implementing the law sets forth its understanding of the words of a law. A court will then consider whether it
agrees with the agency's interpretation in the context of a specific case that
comes before the court. And then, full circle, the legislature can decide if it
agrees with the court.
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In the case of the EEOC's interpretation that pregnancy discrimination
was a form of sex discrimination, the Supreme Court, in its wisdom, concluded that it was not sex discrimination. The Court explained that there
are many women who do not get pregnant. Therefore, if an employer discriminates against pregnant women, it is simply discriminating between
men and women who are not pregnant and women who are pregnant. So it
is not sex discrimination because there are many women workers who are
not being discriminated against.
In this dance that creates law, Congress can always respond to a court's
interpretation of the law with which it disagrees. It can't do that when the
Supreme Court construes the federal Constitution, because in that arena, the
Supreme Court is the last word. But when the Supreme Court interprets a
federal statute, Congress can always respond and correct that interpretation.
As you all know, Congress can be a very slow institution. But it did
manage to pass the Pregnancy Discrimination Act of 1978 (the "PDA") to
overturn the Supreme Court's interpretation of Title VII. That PDA had
two provisions. First, it said that sex includes pregnancy and childbirth and
its related medical conditions. Second, it said that an employer must treat a
pregnant worker who is unable to work the same as the employer treats other employees who are similar in their ability or inability to work. This second sentence directly addressed the problem of employers providing disability benefits for workers who had to leave a job for a period of time, while
not providing the same benefits to women who had to leave the job for a period of time following childbirth.
I've described a number of interpretations of the sex discrimination provision of Title VII in which the Commission put forth very positive and
progressive views of what that provision prohibited. But not all the Commission's decisions interpreting the sex discrimination provision were positive. For example, a few years after Title VII was passed, transgender employees brought charges saying they had been discriminated against for
transitioning from one sex to another and that was a form of sex discrimination. And gay employees brought charges saying they had been discriminated against because of the sex of the person they were attracted to and
that was a form of sex discrimination.
The EEOC just blew those claims away. In various Commission decisions, the agency concluded that these were not forms of sex discrimination.
The Commission did not really explain why these were not forms of sex
discrimination, other than to say that Congress did not intend to cover these
types of situations when it passed Title VII.
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The EEOC was, however, a leader in arguing that sex stereotyping was a
form of sex discrimination. That is, the Commission concluded that if an
employer acted on an assumption about how men and women would act in
a job, or should act in a job, in order to justify hiring men for certain jobs
and women for others -- that was not legitimate under Title VII.
Again, it took a while for employers to accept these restrictions in terms
of the policies they put into place. And it took a while for social norms to
change so that ordinary people began to accept that such assumptions were,
in fact, assumptions and not legitimate grounds for restricting men and
women to different jobs. And finally, the Supreme Court, in a 1989 case
called Price Waterhouse v. Hopkins, agreed that acting on the basis of a
gender stereotype was a form of sex discrimination.
In that case, Ann Hopkins had applied to be a partner in Price Waterhouse. The decision on whether to admit her to partnership was deferred
for one year, and then the following year, she was denied partnership. This
was at a time where there were very few female partners at the Price Waterhouse accounting firm. According to the evidence that came out in the
case, it appeared that several of the other partners in the firm viewed Hopkins as too macho and too aggressive. In fact, she was told by one of the
partners - after her partnership decision was deferred for the year -- that she
should act in a more feminine manner (wear more makeup, etc.) in order to
increase her chances of becoming a partner when the decision came up
again.
The Supreme Court ruled that it is a form of sex discrimination for an
employer to make employment decisions on the basis of a gender stereotype
about how women should act. As the Court explained, acting on the basis
of a gender stereotype meant that an employer was inappropriately taking
sex into account in its employment decision. So unless being male or female fit into a very narrow exception of a "bona fide occupational qualification" for a particular job, gender had to be irrelevant to employment decisions -- just as race, national original and religion had to be irrelevant in
employment decisions.
This pronouncement by the Court - that gender must be treated just like
any other prohibited characteristic in the law - might seem like a simple
application of the words of the statute. But it was actually a momentous
statement on the part of the Supreme Court. And that is because, for two
decades, the courts had been twisting themselves into pretzels in order not
to apply the plain words of the statute in a simple, straight-forward fashion.
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THE SEX DISCRIMINATION PROHIBITION IN TITLE VII OF THE CIvIL RIGHTS
ACT OF 1964 - WHERE ARE WE Now
So where are we now? Is it all over? Have sex and gender become irrelevant in the workplaces across our country?
Newsflash -- NOT!
In fact, it is somewhat mind blowing how much it is not over. We are
not yet where we need to be in terms of gender equity. I want to highlight a
few areas where we are not where we should be and offer some ideas for
moving forward to achieve full gender equality in the workplace.
SEXUAL HARASSMENT
I have been amazed, since becoming a Commissioner of the EEOC, how
much sexual harassment is still prevalent in workplaces across the country.
I think, as professional women, we assume there are still some cases of sexual harassment in the workplace, but we don't view sexual harassment as an
epidemic in the workplace. At least, I did not view it in that way before I
joined the Commission.
But since I have been a Commissioner, and I see the countless stories
that cross my desk, I feel there is an epidemic of sexual harassment in some
specific areas in our workplaces. These areas include women in low wage
jobs, teenagers who are working in their first jobs (often in food service or
retail), immigrant women, and women who are working in non-traditional,
male-dominated jobs where there are very few other women in that workplace.
Going back to the framework with which I started my remarks, law can
serve as one critical variable in stopping this sexual harassment. It often
forces top management to take notice if harassment is occurring in their
workplaces and to try to put policies in place to stop that.
But law on its own will never be enough to stop harassment in the workplace. Instead, we need a multi-prong strategy that will include changing
social norms in order for harassment in the workplace to stop. This strategy
requires government to work in partnership with advocacy groups, employers, and women and men on the ground in the workplace. I think using social media can also be a really useful and important tool in this effort. I
happen to be a Twitter fiend. You can follow me @chaifeldblum where I
tweet on civil rights and social justice issues. I spend time posting on Twitter, Facebook, and Tumblr -- and I appreciate others who spend time on
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those platforms as well, talking about civil rights issues - because I believe
that using social media can be an important tool for changing social norms.
PREGNANCY ACCOMMODATIONS
The second area I want to talk about is that of accommodations for pregnant workers on the job.
We still deal today with many blatant cases of pregnancy discrimination
in which an employer fires a worker because she is pregnant (and tells her
that is the reason) or does not hire an applicant who is pregnant (and again
tells her that is the reason!). But there is also a pervasive discriminatory
policy that occurs in many workplaces that many employers do not perceive
as discriminatory. Many employers have written policies that give male or
female employees who have been injured on the job, or who have a disability under the ADA, reasonable accommodations that will enable those employees to stay employed while they have some physical restrictions. These
accommodations can include modified job duties or light duty if, for example, an employee has lifting restrictions. But these written policies also explicitly state that similar accommodations will not be given to pregnant
workers who have similar physical limitations.
Employers maintain these policies despite the plain language of the
Pregnancy Discrimination Act that says that pregnant workers must be
treated the same as other workers who are similar in their ability or inability
to work. This is an issue I have personally been working on steadily for
over two years at the Commission. For that reason, I was very pleased that,
two months ago in June, the EEOC finally issued guidance interpreting the
Pregnancy Discrimination Act as requiring equal accommodations for
pregnant workers in such situations.
By the way, the guidance we issued was contrary to interpretations of the
PDA that had been issued by four Circuit Courts of Appeals previous to our
guidance. I remember that when I first read those appellate cases, they
seemed flatly wrong to me in terms of basic rules of statutory interpretation.
(I guess that's what happens when a law professor who has taught Legislation for over a decade becomes a Commissioner at the EEOC.) Because of
that, for over two years inside the agency, I pushed for the Commission to
issue guidance explaining our view of the PDA's requirements with regard
to accommodations for pregnant workers - much as the EEOC had put forth
its views of the sex discrimination provision in the early years through
guidance that it issued.
Next term the Supreme Court will decide a case raising this precise issue,
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Young v. UPS. So we will see if the Court agrees with the EEOC that the
1
circuit courts below were wrong.
PAY EQUITY
The third issue I want to address is pay equity for women. This is obviously a huge issue and I am not going to go into extensive details in these
remarks. But I do want to highlight a few key points.
Some of the pay disparity that exists today between men and women derives from straightforward discrimination against women. We need to fight
1Addendum: On March 25, 2015, the Supreme Court handed down its decision in
Young v. UPS that rejected the approach of the four circuit courts of appeals and
affirmed the result that the EEOC's approach was seeking. Young v. United Parcel
Serv., Inc., No. 12-1226, 2015 WL 1310745 (U.S. Mar. 25, 2015). The Court disagreed with the Commission's legal theory that it was a case of direct discrimination
when an employer's policy did not provide accommodations to pregnant workers if
the employers provided accommodations to other workers. The Court thought that
approach went too far, because it might be applied to mean that all pregnant workers would get accommodations even if only a few other workers got accommodations for some very specific reasons. However, the Court did agree with the
EEOC's approach that a case of indirect discrimination could be successfully
proved under the McDonnell-Douglasframework of indirect discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In the EEOC's guidance, we had also disagreed with the four circuit courts in their application of the
McDonnell-Douglasframework. Id. We stated that a prima facie case of discrimination could be proven by a pregnant worker by showing that other classes of employees - such as those injured on the job or who had disabilities under the ADA received accommodations while pregnant workers did not. The circuit courts had
concluded that a prima facie case could not be made out in such circumstances because those other classes were not "similar to" the pregnant workers. In Young v.
UPS, the Court agreed with the EEOC's view of how to apply the McDonnellDouglas framework and moreover, provided additional and useful guidelines for
how to apply that framework. See Young, No. 12-1226, 2015 WL 1310745, at
*15-17. I look forward to the EEOC issuing a revised guidance that follows the
Supreme Court's interpretation of the PDA. As a practical matter, either theory of
the PDA results in pregnant workers getting the accommodations they need once
employers provide such accommodations to other classes of workers. The day that
the Young case was issued was a good day for gender equity in the workplace.
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that discrimination through an aggressive use of the first variable of social
change - law. Both the EOOC and private plaintiff lawyers need to continue bringing litigation to fight these cases of discrimination and to stop this
pay inequity.
But a fair amount of the pay disparity that exists today between men and
women is due to the significant gender job segregation that still exists. The
research shows that female-dominated occupations pay less than maledominated occupations at the same skill levels. That is, if a man and a
woman have similar education and level of skills, but the woman enters a
female-dominated job (such as being a waitress or a nurse) and the man enters a male-dominated occupation (such as being a welder or a plumber),
the male-dominated occupation will pay more.
You may be surprised by the extent of gender job segregation that still
exists. I certainly was. As lawyers, I think we do not personally see extensive gender job segregation because there is significant gender integration
in professional occupations such as law, medicine and accounting. But if
we look at our country's workplaces overall, there is a stunning amount of
gender job segregation. According to research conducted by the Institute
for Women's Policy Research (1WPR), almost 40% of women in this country work in female-dominated occupations. That is, they work in jobs in
which at least 75% of the workers in that occupation are female. And
slightly more than 40% of men in this country work in male-dominated occupations - that is, in jobs where there is only 5% of women in those occupations. Obviously, given the reality that male-dominated occupations pay
more than female-dominated occupations, this significant gender job segregation will skew the overall wages that are paid to men and women in this
country.
Changing this type of occupational segregation requires an overall, multi-pronged, strategic campaign. Law is a critical component of this strategy.
EEOC and private plaintiff lawyers need to continue bringing litigation
against employers that are denying jobs to female applicants who seek entry
to male-dominated occupations, simply because those applicants are women. But litigation will never be sufficient. This strategic campaign must be
multi-faceted. It has to include making sure that the American Job Centers
funded by the federal government are not steering women into waitressing
jobs and men into welding jobs -- and then getting credit simply for finding
each person a job, even if the job is in a gender segregated occupation. And
it requires changing social norms so that women in male-dominated occupations are not harassed and effectively chased out of those jobs. And, the
most difficult change in social norms, we need to get to a place where
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women and men feel that all occupations are equally open to them and
should be considered equally realistic occupations.
These are just a few issues that we are working on at the EEOC today.
Thinking of making change in these areas is what gives me the passion to
wake up every day and go into the office - or, as is often the case, to wake
up in the morning and go to my computer and telecommute to the office -because of all the work we can thankfully now do via email and phone
calls.
I want to end with a final issue that I think has more unqualified good
news than the three areas I have just described. Don't get me wrong -- I believe we will achieve the necessary changes in those three areas as well as
many others. But achieving those changes will take both significant time
and effective multi-pronged strategies.
COVERAGE OF LESBIAN, GAY, BISEXUAL AND TRANSGENDER PEOPLE
UNDER TITLE
VII
Achieving full protection for LGBT people under existing sex discrimination law will also take time, as courts begin to grapple with the legal theories I am about to discuss. But I don't think achieving this goal will require the same type of multi-pronged strategies that I described above. That
is because a fair amount of the movement needed in the two other variables
for social change -- policies in practice and social norms -- has already occurred. Indeed, it is precisely because of such change that the first variable
- that of law - is now being applied in a different way.
As you heard, I was one of the main drafters of the Employment NonDiscrimination Act (ENDA) that was first introduced in 1994. The students
in the room may be interested to know that the first draft of ENDA was
based on a law school exam. In 1992, I wrote a law school exam for my
statutory interpretation class in which I created a bill for the students interpret. The bill prohibited discrimination on the basis of sexual orientation in
employment and other areas. I patterned that bill on the Americans with
Disabilities Act, which was also on my computer since I had been active in
drafting that bill as well. Obviously, I put in a few statutory drafting muddles in the bill, so I would have a basis for asking some tough questions in
the exam. I then got hired as a consultant to a gay rights group to help work
on creating a bill that would prohibit sexual orientation discrimination in a
range of areas, including employment. I had only two days' notice before
the first meeting I would be attending of the drafting group. I did not know
if the group had already come up with a proposed draft of a bill. But I
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knew that words are important. So I figured I would come with a draft of
my own. I pulled up the exam, fixed the mistakes, and that became the first
draft of the bill. That first draft covered not just employment, but also public accommodation and state and local services. But after the debacle of the
gays in the military effort in 1993, which I was also involved in, we decided
to cut the bill down to employment only because that is where the polls
showed the strongest support. And, as you know, Congress has yet to pass
ENDA, despite the fact that it has been introduced in every consecutive
Congress since 1994.
But, as I like to say: "A funny thing happened on the way to nonpassage" of ENDA. The gender stereotyping prohibition of the existing
law, Title VII, began to be applied in a different way to LGBT people who
were experiencing discrimination. This new way of applying Title VII
arose, I think, because of changes in social norms. That is, the societal
changes of the last few decades enabled agencies and courts to logically apply the gender stereotyping prohibition of Title VII in a way that it should
have always been applied to LGBT people.
Transgender people who experienced discrimination based on their gender identity were the first to get traction under the gender stereotyping protection of Title VII. Perhaps this was because it was easy for courts to understand that employers were acting on the basis of a gender stereotype -that is, the gender assumption that women should not transition to being
men and men should not transition to being women - when employers discriminated against someone for being transgender. So a number of courts
began to extend protection for transgender people under Title VII based on
a theory of prohibited gender stereotyping.
I am proud that the EEOC, in April 2012, issued a decision called Macy
v. DOJ in which the agency reversed its previous rulings to the contrary and
took the position that discrimination on the basis of gender identity is always a form of sex discrimination. We made that determination both on the
gender stereotyping theory, as well as on a simple straightforward reading
of the plain text of the law. Under that latter analysis, if an employer was
ready to hire an applicant when the applicant was male, but was not ready
to hire that same person if she planned to start work as a female - then that
employer was clearly "taking sex into account." And that is precisely what
the plain words of Title VII prohibit.
And so the word has gone out to our investigators in all fifty-three EEOC
offices around the country. They now know that if a person comes in
claiming to have been discriminated against because he or she is
transgender, our investigators know to accept that as a sex discrimination
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charge and to code that charge in our computer system as a charge of sex
discrimination/gender identity. There is actually now a separate code in our
computer system for gender identity charges, so we can track how many of
these charges we are receiving.
And, starting in 2011, and continuing until now, the EEOC has also ruled
that LGB employees and applicants can use the sex discrimination prohibition of Title VII to challenge discrimination based on sexual orientation.
The agency has done this based on a robust application of the gender stereotyping theory. That is, we have explained that if an employer discriminates
against an individual because that individual does not conform to the most
basic of gender stereotypes - the assumption that men and women should
be sexually attracted to people of the opposite sex (including marrying people of the opposite sex) - that employer has engaged in a form of impermissible sex discrimination by acting on the basis of that gender stereotype.
So the word has gone out to our investigators in our fifty-three EEOC offices across the country that if a gay man, lesbian, or bisexual person comes
in claiming discrimination on the basis of sexual orientation, they are to accept that as a sex discrimination charge and code that charge in our system
as a sex/sexual orientation charge.
It is amazing to me what codes can do. After the codes were put into in
our computer system, whenever I felt depressed about some issue or another at work, I would say, "but there are now codes for sexual orientation and
gender identity in our system. Wow."
As I noted earlier, there is always an ongoing dance between the various
actors responsible for the creation and interpretation of law -- the legislature, the agency and the courts. I expect to see that dance continue, in terms
of whether the EEOC's interpretation of sex discrimination will be adopted
by the courts. There was a D.C. district court decision in March 2014, Teveer v. Library of Congress, that adopted the robust gender stereotyping theory that the EEOC has been using. In that case, the plaintiff was an individual who did not meet the appearance stereotype of being a gay man, in
the sense of being too effeminate in his dress or gestures. A number of
courts over the years had protected lesbians who were harassed because
they were "too macho" or gay men who were harassed because they were
"too femme." But the DC federal district court in 2014 adopted the more
robust gender stereotyping theory that the EEOC has adopted in many of its
rulings - that if an employer takes an adverse employment action against
someone because that person does not meet the stereotype that a man or a
woman should be sexually attracted to someone of the opposite sex - that is
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a form of sex discrimination. So, I look forward to seeing what other courts
will decide, as they get this issue before them.
CONCLUSION
Let me conclude with this thought. Fifty years ago, Congress passed Title VII of the Civil Rights Act of 1964 and set us off on a journey in which
sex would not be taken into account in the workplace, just as race, color,
national origin and religion would not be taken into account in the workplace. The journey has not been a simple one, and it is not over yet. But
over time, the law has been understood and interpreted to cover many forms
of discrimination that the 1964 Congress could not have even anticipated.
The law has generated policies and practice that have helped advance gender equity, as well as equity on the basis of race, color, national origin, and
religion. And the law has both shaped social norms and been shaped by
changing social norms in return. We all need to remain part of this great
journey, and to do our bit in bringing about complete equity in our workplaces.
Thank you so much for your attention, and for your engagement in this
important journey. Thank you so much. [Applause].
I'm happy to take questions, not only on the gender equity issues that I
have been talking about, but on any other issue. The EEOC has been actively working on so many other issues as well - for example, the guidance
we issued regarding how an employer may and may not use criminal background checks if they have a disparate impact based on race. So I am happy
to take questions on a range of subjects.
QUESTION AND ANSWER SESSION:
Question: Well, my actual question is, I understand, from what I have
learned about the Civil Rights movement, litigation in the whole law process was a huge part in changing general sentiment. But, I figure, from my
own experience, the law process is pretty long, and drawn out, and expensive. How are people able to fund this large-scale litigation, getting into
high court, and getting these cases on a big stage, if they were not really in
support of it? If the general consensus was a certain belief, how do they get
it to be at a high court level, and actually be viable in a court case?
Answer: Well, as you heard from the first panel, some of this was done
on the sweat and equity of individual people. I think it is going to be great
that we will be able to hear, after lunch, reflections from Senator Marsh on
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this. But, to me, that is why we need a partnership between advocacy
groups and the government. This is the point about democracy -- that we
can associate with each other and create advocacy groups that will not only
fund litigation, but also push for legislation. As I hope I've explained in
this talk, change often has to start with the legislation, before you even get
to the courts. Unless you are bringing litigation under the federal Constitution, you first have to pass the law.
You have to affect Congress in order to pass the law, you have to affect
the agencies who are implementing the law so that they implement it effectively, and then you also have to bring litigation. And that requires individual people standing up for their rights; it means individual people bringing
charges to the EEOC. It means having groups that will support these individual people.
That is why, to me, this needs to be a real synergistic effort between advocacy groups, individuals, and government agencies. It has taken a long
time to get to where we are on race equality, and we're still not where we
need to be. So, yes, there's been money and support, and sweat and blood
and tears of individuals, but there is still more to do.
Question: What role do you think the activist organizations like CORE
(Congress on Race Equality), SNCC (Student Nonviolent Coordinating
Committee) and others had on the Supreme Court and the EEOC in bringing about more justice?
Answer: I think the impact of those groups were huge, just huge. Some
of the groups were active in terms of getting the law passed in the first
place. So that was huge in terms of being involved in the legislation itself.
And then that carried over to the EEOC. The five EEOC Commissioners -there are always five commissioners, and no more than three of us can be of
the same political party, so there is always built-in bipartisanship in the
Commission - these five Commissioners knew they were on the hot seat in
terms of race discrimination because there were people on the outside who
were watching them and pushing them. This is what the women's advocates realized that they needed to have as well. No matter how good the
people who go into government are, they need people on the outside to be
pushing them. (By the way, I have now been in government for four years
and, let me tell you, it is like a different country. I feel I should have gotten
a passport and a dictionary before I entered the federal government.) But
anyway, no matter how good and well-meaning you are, you need the pressure from outside to move anything. You are not going to do it on your
own. So, my answer is: groups like that are hugely important.
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Question: More specifically, was the fear of riots and disturbances in the
north a motivating factor in the passage of the act, and in the way the act
was enforced?
Answer: This is not my area of expertise and I am glad I was here this
morning and could listen to the first panel. Because based on those presentations, I think we can say quite unequivocally: yes. I am going to be interested in going back and looking at some of the history in the EEOC to see if
there were references to that in some way. I imagine that there might be
because again, people do not move unless they feel there is some interest in
moving, some self-interest in moving. And I think the EEOC probably felt
it did not want to be charged with having encouraged these riots because it
was deficient in what it was doing.
Question: Good Morning. I am a disabled veteran who was serving in the
Marine Corp at the time that the National Defense Authorization Act for
fiscal year 2012 was passed in Congress that gave authority to the respective secretaries to recognize openly gay individuals and did allow them to
get married in the states that authorized it. But because of the federal definition and the DOMA, the second section that stated that marriage was between a man and a woman, they did not extend to them the rights given to
heterosexual marriages, basically the increased financial benefits you would
get with housing allowances. Given that Windsor struck that down, do you
foresee changes and how long do you think that would take?
Answer: First, to give some background to others -- the Windsor case
was brought by Edie Windsor. She and her long-time female partner owned
a New York City apartment together and it had significantly appreciated in
value. When Edie's partner died, Edie discovered she had to pay a tax to
the federal government that was in the thousands of dollars, which if she
had been married to a spouse she would not have had to pay. Well, in fact
she was married to her partner. So she argued that her marriage should be
recognized by the federal government and that the section of the Defense of
Marriage Act that says -- regardless of whether a same-sex couple is legally
married in a state, the federal government will not recognize that marriage was unconstitutional. And in the Windsor case, a year ago, the Supreme
Court agreed that the challenged section of DOMA was unconstitutional.
Shortly afterward the Office of Personnel Management, which is basically the big human resources agency for the whole federal government said,
"Okay, if you are a federal employee who got married in a state that recognizes marriage between same-sex couples, we will treat you as married for
purposes of all federal benefits." Several months later, the federal govern-
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ment also decided that even if you lived in a state that did not recognize
marriage between same-sex couples, but you had gone to another state that
did recognize marriages between same sex couples and had gotten married
in that state - then again, the federal government would treat you as married
for purposes of federal benefits. That was huge.
But how far the federal government could go with this rule also depended on the particular statute that provided the benefits. So they were able to
apply that rule to basically everything, except I think, for Social Security
benefits, because of the way the Social Security Act is written. So, I do not
know in terms of the question you are asking. It sounds from what you are
saying the VA has not applying this rule? I thought there was another
agency besides SSA that had a problem with the statute and perhaps it was
the VA. But I don't know that so I would want to go back and check. But
if that is the problem, what would be necessary is a change made by Congress with regard to the Social Security law or the VA law and then we are
back to the problem that Congress does not move quickly.
Question: I am right now taking a class, called Sex, Mindfulness and the
Law, and it is all about Title IX. You resonate something that I said on my
first day of class, is this issue is so complex, and the law alone will not
solve it. We need the cultural input in it. Despite that fact, after the promulgation of the 'Dear Colleague' letter, in 2011, disciplinary action against
the sex offenders has been taken from the judiciary, to private institutions
and the standard has been lowered from, 'beyond reasonable doubt' to
something really close to 'preponderance of the evidence'. I'm just a little
bit worried that, a 19 or 18 year old, student who is also privileged, probably, in a private institution, is afforded less constitutional protection than a
sex offender, who is violent, and who has the 'beyond a reasonable doubt'
standard that could protect him. Now, each school has its own standards,
each school has its tribunals. And, you mention that it is always a dance between the EEOC, the judiciary, and the legislature, and now we get these
private institutions doing all what courts generally do, because in many articles, people say that the judiciary actually failed to solve this problem. Do
you believe that such, I would not call it defects, but concerns in Title IX
would hinder the movement to solve the sexual harassment cultures within
campuses?
Answer: There are various pieces in your question, so let me unpack it a
bit. First, again, as background for the audience about Title IX that you referenced. Title IX of the Education Amendments of 1972 says that any educational institution that receives federal financial assistance may not dis-
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criminate on the basis of sex. Part of why that law was necessary was that
when the Civil Rights Act of 1964 passed, as you heard this morning, Title
VI of that statute was very important because it said that any recipient of
federal financial assistance could not discriminate based on race, color or
religion. But Title VI did not include sex. So in 1972, there was the effort
to include the sex discrimination prohibition at least for educational institutions that were receiving federal financial assistance.
Then, in this dance of law that happens, the Supreme Court narrowed the
law. In a sex discrimination case brought against a university, the Court
ruled that the only entity within the university that was bound by the sex
discrimination provision was the entity that actually received the federal financial assistance. And for private schools, what do you think is the federal
financial assistance that they get? The students in this room should know it.
Student loans. Student loans were how the federal government interacted
with private schools in terms of providing funds. And so the Supreme
Court ruled that the financial aid office of a college could not discriminate
based on sex, but the rest of the college could.
So, in this dance of law, Congress then passed the Civil Rights Restoration Act of 1987 to say - no, if a university gets federal funds through the
student loans, then the entire entity is covered. By the way, this was when I
first entered the Washington political world. The Civil Rights Restoration
Act of 1987 amended not only Title IX of the Education Amendments, but
also three other laws that covered recipients of federal funds, including Section 504 of the Rehabilitation Act that prohibited discrimination based on
disability. I was working at the time for the ACLU's AIDS project, and
some people in Congress wanted to use the Civil Rights Restoration Act to
exclude people with AIDS and HIV infection from the protection of Section
504.
With that background, let me get to the question you raised - which, by
the way, is not directly in my area of expertise, so maybe that's why I provided so much background! But I will just say what I can about your question. There is a huge concern with what is called "the school to prison pipeline." This pipeline disproportionately affects young kids who are of color
and young kids with disabilities. When these kids misbehave, it used to be
that in order for those kids to have a criminal record, they had to be adjudicated in a court. But what has happened is that more adjudications have
been taken into the school system itself under its disciplinary system and it
turns out that these systems disproportionately discipline kids of color and
kids with disabilities. Ultimately many of these kids end up in prison, creating this "pipeline" of school to prison.
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How do we break this? Again, let me note that this is not in the jurisdiction of the EEOC, since we cover only employment. This issue is in the jurisdiction of the Department of Education. But through the efforts there of
people who care about race and disability, the Department of Education issued guidance recently to govern some of the activities on the part of
schools that engage in these disciplinary systems.
Personally, I am not sure that any guidance will be enough. This problem definitely requires a multi-pronged strategy and it poses a really tough
challenge. We have to deal with the basic social conditions in this country
that affect race in such a disproportionate way. This is not an easy issue.
Those of us who are social progressives have been trying for years to address these issues. In fact, right after lunch, you are going to be hearing
from a person who has been at this for decades.
But I do not want to end on a pessimistic note. So let me just say - thank
goodness, that there are people who understand that these are problems in
our country. The fact that there are people across this country who worry
about social justice issues is a good thing. Our job now is to join forces and
try to make an impact. That is certainly my goal in life and I am thrilled to
be talking to an audience that I know has either already engaged in these
same efforts or who are preparing themselves now to be the next generation
of leaders. I am really happy to have the next generation address some of
these challenges, because you all will be the ones coming up with new ideas
and thoughts that we had never even considered. And how wonderful is
that!
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MEMORANDUM
To:
All ISBA sections and committees
From:
Jim Covington
Date:
May 26, 2015
In re:
ERA Amendment
The Women and the Law Committee (WATL) is requesting that ISBA support
passage of the Equal Rights Amendment to the United States Constitution.
WATL’s supporting memorandum and a copy of HJRCA 7 that was filed last
year are attached for your review. It is anticipated that Representative Lou Lang
(D-Skokie) will reintroduce this constitutional amendment again next spring.
Please review this request at the annual meeting or your meeting this summer or
no later than early fall to let us know what your recommendation is on what
position, if any, that you wish ISBA to take on this issue. Your position will be
forwarded on to the ISBA Board of Governors and ISBA Assembly for
consideration and final action.
Lori Levin and Cindy Galaway Buys are the points of contact for WATL, and
they may be reached as follows:
Lori Levin - [email protected] or (312) 972-3756
Cindy Buys - [email protected] or (618) 453-8743
If you have any questions, please call me. Thank you.
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MEMORANDUM
TO:
All Committees and Sections Councils of the
Illinois State Bar Association (ISBA)
FROM:
Women and the Law Committee
DATE:
January 22, 2015
RE:
Equal Rights Amendment (ERA), Illinois HJRCA0007
The Women and the Law Committee (WATL) urges the ISBA to support passage of the
Equal Rights Amendment (ERA). This memorandum briefly summarizes the history of
the ERA, its current status, both nationally and in the State of Illinois, and proposes
action by the ISBA.
Text of the Amendment
Section 1. Equality of rights under the law shall not be denied or abridged by the United
States or 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 ratification.1
Background
The ERA is a proposed amendment to the U.S. Constitution that is intended to
guarantee equal rights regardless of sex or gender.2 Illinois HJRCA0007 provides for
the ratification of the proposed ERA to the United States Constitution.3
The ERA was written by suffragists Alice Paul and Crystal Eastman and was initially
1 H.R.J. Res. HC0007, 98th Gen. Assemb., (Illinois 2013 and 2014).
http://ilga.gov/legislation/fulltext.asp?DocNum=0007&DocTypeID=HJRCA&GAID=12&SessionID=85.
2 Phillip E. Hassman, Annotation, Construction and application of state equal rights amendments
forbidding determination of rights based on sex, 90 A.L.R.3d 158 (1978-80).
3 See H.R.J. Res. HC0007, note 1, supra.
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introduced into Congress in 1923.4 Following the 1920 ratification of the Nineteenth
Amendment granting women the right to vote,5 the “Lucretia Mott Amendment” as the
ERA was originally named, was unveiled at the 75th anniversary of the 1848 Seneca
Falls Convention.6 It stated that: “1) Men and women shall have equal rights throughout
the United States and every place subject to its jurisdiction; and 2) Congress shall have
power to enforce this article by appropriate legislation.”7 The ERA became a polarizing
issue for those supporting women's rights in the 1920's, the “first wave of feminism.”
Tensions at the time revolved around two approaches toward gender equality. The first
approach, and the stance taken by the National Woman’s Party, focused on the
similarities between the sexes and humanity as a platform for equal rights. The other
approach viewed women as unique and in need of recognition for their “specific
needs.”8 The ERA was introduced in every Congressional session between 1923 and
1970, but with few exceptions, it failed to reach the floor of either the Senate or the
House for a vote.9
Women divided on the issue of the ERA in the 1970's during the second wave of
feminism. Early Illinois activism was powerful on both sides. Figures opposed to the
ERA, such as conservative activist Phyllis Schlafly, organized opposition to the ERA by
arguing that constitutional incorporation of the amendment would lead to women being
subject to conscription and the use of public unisex bathrooms.10 Her family values
argument was single-minded and effective. She took the position that the ERA would
threaten protections afforded to women such as alimony and custody, rendering middle
aged housewives particularly vulnerable.11
4 Phillip E. Hassman, Construction and application of state equal rights amendments forbidding
determination of rights based on sex, 90 A.L.R.3d 158.
5 U.S. Const., Amend. XIX, http://constitution.findlaw.com/amendment19.html
6 Alice Paul, Feminist, Suffragist and Political Strategist, Alice Paul Institute,
http://www.alicepaul.org/who-was-alice-paul/.
7 See Id.
8 Nancy Cott, THE GROUNDING OF MODERN FEMINISM (Yale University Press, 1987).
9 Alice Paul, Conversations with Alice Paul: Woman Suffrage and the Equal Rights Amendment.
10 Juliet Eilperin, New Drive Afoot to Pass Equal Rights Amendment, THE WASHINGTON POST (May 22,
2010).
11 Deborah L. Rhode, JUSTICE AND GENDER: SEX DISCRIMINATION AND THE LAW 66–67 (Harvard UP 2009).
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In 1972, the ERA finally passed both houses of Congress and was sent to the state
legislatures for ratification with a deadline for ratification set for March 22, 1979. Most
states that ratified did so quickly. Between 1972 and 1977, thirty-five states ratified the
ERA,12 but later, five states rescinded their ratifications.13 In 1978, Congress extended
the deadline to 1982.14 In Illinois, seven zealous supporters went on a hunger strike and
seventeen more chained themselves to the door of the Illinois Senate chamber. 15 The
Illinois House voted in favor of the ERA during this time as it has on numerous
occasions, but failed to achieve the necessary 3/5 vote.16
There were early fears that ERA would eradicate protections afforded by labor
legislation.17 Unionization and other legislation including the Equal Pay Act of 1963 and
the Civil Rights Act of 1964 did much to alleviate these concerns preventing the support
of the ERA. During the 1970s, the objections tended to focus on the possibility that
women would be drafted into military service, and would lose the benefit of other
protective legislation in the areas of sexual assault and child custody. 18 Certain
religious groups also feared the ERA would lead to easy access to abortions and gay
marriage.19
While more recent legislation has tackled many of these specific concerns, the U.S.
Constitution still lacks an affirmative declaration of equality between the sexes.
12 2011 Bill Text DC R. 151, (Lexis).
13 Nicole Gaudiano, Fight to ratify Equal Rights Amendment draws new interest, USA Today (Sept. 12,
2014), http://www.usatoday.com/story/news/politics/2014/09/12/equal-rights-amendmentrally/15508713/. Several organizations working at the state and federal levels for adoption of the ERA
dispute the validity and/or the permanence of the ratification deadline(s), and the five rescissions.
National Organization for Women, 2009 National NOW Conference Resolutions: Equal Rights
Amendment (Jun. 21, 2009).
14 See Bill Text, supra, note 12.
15 Suzanne O'Dea Schenken, From Suffrage to the Senate: An Encyclopedia of American Women in
Politics.
16 The Equal Rights Amendment: Unfinished Business for the Constitution, The ERA in the States,
www.equalrightsamendment.org/states.htm#top.
17 2003 Legis. Bill Hist. IL H.C.A. 1 (Lexis).
18 Serena Mayeri, Constitutional Choices: Legal Feminism and the Historical Dynamics of Change, 92
Calif. L. Rev. 755 (Lexis 2004).
19 2003 Legis. Bill Hist. IL H.C.A. 1 (Lexis).
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Recent Legislative Action
The ERA has been reintroduced into every session of Congress since 1982.
Proponents of the ERA, such as the National Organization for Women (NOW), contend
that Congress has the power to extend the deadline to ratify the ERA, to recognize the
previous ratifications, and to nullify the attempted rescissions of ratification by the five
states in question. NOW has therefore adopted the position that only three more state
ratifications are necessary.20
Concerned about recent laws and court decisions that attempt to roll back women’s
rights in education, health care and employment, two Congresswomen, Jackie Speier
(D-CA) and Carolyn Maloney (D-NY) introduced legislation earlier this year aimed at
ratification of the ERA.21
The Illinois Senate voted 39-11 in 2014 in favor of the ERA.22 The Illinois House was
scheduled to take up the matter in November, but failed to do so before the end of the
legislative session. Accordingly, supporters intend to reintroduce the bill next legislative
session in hope that a vote in favor of ratification by Illinois will cause the ERA to gain
momentum nationwide once again.23
The Illinois Resolution of Ratification takes the position that because the time limit for
resolutions of ratification is contained in the resolving clause and not in the Constitution
or the text of the amendment itself, Congress has the power to extend or disregard the
time for ratification and can judge whether a particular resolution of ratification is timely.
20 Thomas H. Neale, The Proposed Equal Rights Amendment: Contemporary Ratification Issues,
Congressional Research Service (Feb. 28, 2013), CRS Report for Congress, 7-5700 R42979.
21 See, e.g., Carolyn B. Maloney, Equal Rights Amendment, http://maloney.house.gov/issues/womensissues/equal- rights-amendment.
22 David Crary, Battle lines being drawn in Illinois on Equal Rights Amendment, SUN-TIMES (Aug. 10,
2014), http://chicago.suntimes.com/politics/7/71/161496/battle-lines-being-drawn-in-illinois-on-equalrights-amendment.
23 See Gaudiano, supra, note 13.
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Proposed Action
Women today still make significantly less than men for the same work.24 There has
never been a female President of the United States. In 2014, women also only occupy
18.5% of the seats in the U.S. Congress (18.2 in the House; 20% in the Senate).25
Likewise, women lag behind in other positions of leadership; they comprise only 5% of
the CEOs of the Fortune 1000 companies26 and 23% of federal judges.27 Passage of
the ERA could help bring more gender equity in these areas. It also could influence the
analysis of statute-based gender discrimination claims, such as the Pregnancy
Discrimination Act case currently pending before the U.S. Supreme Court.28
There are at least some sitting U.S. Supreme Court justices who do not believe the U.S.
Constitution currently provides protection against discrimination on the basis of sex. For
example, in an interview with the California Lawyer, Justice Antonin Scalia stated that
the U.S. Constitution does not prohibit discrimination on the basis of sex.29 Other
Supreme Court justices have expressed sympathy with this view. 30
Men also suffer from sex discrimination in certain areas of the law. For example, it is
easier for a woman than a man to confer citizenship on a child under the U.S.
Immigration and Nationality Act.31 For these reasons and others, there is still reason to
24 Although the exact amount women make as compared to men has been disputed and varies over
time and with the type of job, all the experts agree that women make less than men for the same work.
The White House, Understanding the Basics, http://www.whitehouse.gov/issues/equal-pay#top; AAUW,
The Simple Truth About the Gender Pay Gap, http://www.aauw.org/research/the-simple-truth-about-thegender-pay-gap/. Lisa Maatz, The Awful Truth Behind the Gender Pay Gap, FORBES (Apr. 7, 2014),
http://www.forbes.com/sites/forbeswomanfiles/2014/04/07/the-awful-truth-of-the-gender-pay-gap-it-getsworse-as-women-age/
25 Center for American Women and Politics,
http://www.cawp.rutgers.edu/fast_facts/levels_of_office/Congress-CurrentFacts.php
26 Catalyst, Women CEOs of the S&P 500, http://www.catalyst.org/knowledge/women-ceos-fortune1000.
27 National Women’s Law Center, Women in the Federal Judiciary: Still a Long Way to Go (Jul. 31,
2014),
28 Young v. United Parcel Service, S. Ct. Docket No. 12-1226 (2014).
29 Amanda Terkel, Scalia: Women Don’t Have Constitutional Protection Against Discrimination,
HUFFINGTON POST (MAY 25, 2011), http://www.huffingtonpost.com/2011/01/03/scalia-womendiscrimination-constitution_n_803813.html.
30 Ian Millhiser, Scalia Says Constitution Does not Prevent Gender Discrimination ThinkProgress (Sep.
20, 2010), http://thinkprogress.org/politics/2010/09/20/119769/scalia-women/.
31 Nguyen v. I.N.S., 533 U.S. 53 (2001); Flores-Villar v. United States, 564 U.S. __ (2011).
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be concerned about gender equity.
We as a nation are behind the times. Every constitution drafted since World War II
includes a provision stating that men and women are citizens of equal stature. Certainly,
protective legislation does provide a shelter for women in some specific areas including
union laws and Title VII class protection. Gay marriage is now protected in many states,
and the climate is turning toward constitutional protection for gay marriage being
afforded on a federal level as well.
Indeed, many state constitutions, including Illinois’, provide protection for women,
specifically: “The equal protection of the laws shall not be denied or abridged on
account of sex by the State or its units of local government and school districts.”32
However, to ensure that both sexes enjoy similar protection under federal law and
uniformly throughout the United States, a federal constitutional amendment is needed.
The ISBA can help revive momentum for the ERA by adopting a resolution in support of
the ERA and using its resources to lobby the state legislature to vote in favor of
ratification of the ERA. Accordingly, the WATL asks the various ISBA section councils
and committees and the ISBA General Assembly to express their support for a
resolution recommending ratification of the ERA.
32 Illinois Constitution Section 18: NO DISCRIMINATION ON THE BASIS OF SEX.
http://www.ilga.gov/commission/lrb/con1.htm
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