If there was ever a time for the Equal Rights Amendment, it’s now

The leaked Supreme Court opinion in the Dobbs v Jackson Women’s Health case serves as a potent reminder of how weak the protections against sex discrimination are in the current U.S Constitution. A resolution now pending in the Senate could change that.  

The measure, already passed by the House, would lift the last hurdle for ratification of the Equal Rights Amendment. Of course, a vote on the resolution must overcome a potential filibuster by Senate Republicans.

While it may seem counterintuitive, holding and losing the vote to lift the filibuster on the ERA may be just what we need to push it over the finish line. 

Fifty years ago, the U.S. Senate passed the Equal Rights Amendment by an overwhelming bipartisan vote, 84-8. Finally, in January 2020, the ERA satisfied all of the constitutional requirements for full ratification, yet a cloud hangs over the amendment. The resolution pending in the Senate would remove a 10-year deadline for ratification included in the preamble to the ERA when it was originally passed by Congress, even though Article V of the Constitution, which sets out the rules for amending the Constitution, says nothing about deadlines.

Assuming the Senate vote on the current ERA deadline bill gains 52 or 53 votes to overcome the filibuster, it will signal a solid bipartisan majority for lifting the deadline, just as there was in the House when it voted on the same bill last year. Just as there was when Congress voted to approve the ERA in 1973 and voted to extend the deadline in 1979. Just as there was when three-fourths of the states voted to ratify the ERA. Just as was documented in a 2020 poll showing 74 percent popular approval for the ERA.

A majority vote of the Senate in favor of lifting the deadline would be what some legal scholars call “a constitutional moment” — the moment that marks a tipping point when a popular majority recognizes that the Constitution has been amended. History teaches us that it is only in retrospect that we realize that the U.S. Constitution has been amended.

Rarely is there a discrete, shining legal moment when all will agree that new rights have been added to our founding document. Instead, constitutional change is more synergistic: It is pulled off as an evolving political agreement that, yes, looking at the matter as a whole, it seems that in fact we should recognize this amendment as validly incorporated into the Constitution. Often the president issues a statement acknowledging this moment, sometimes the Senate will do it. A vote on the filibuster of the ERA deadline resolution in the Senate, even if it failed by six or seven votes, would amount to that constitutional moment.

Amending the Constitution is not normal legislating. The Article V amendment process is “the people’s process”. After all, the Constitution begins with “We The People”. Article V gives no role to the president or to the executive branch and the Supreme Court has ruled that amending the Constitution is essentially a political, not legal, project. It is one that places the American people at the center of constitutional amendment ratification and is more populist in nature than regular lawmaking, necessarily involving not only elected representatives in Congress but the people more directly by requiring ratification by state legislatures as well. 

This may be a moment to draw from Justice Samuel Alito’s reasoning in the leaked Dobbs opinion (after all, a stopped clock is right twice a day). On an issue as important as amending the Constitution, we should “return the power to weigh those arguments to the people and their elected representatives.” The people of three-quarters of the states have voted to ratify the ERA, most recently Nevada, Illinois, and Virginia. A minority of senators now seek to block the clear will of the people, expressed through their local representatives.

The filibuster is widely understood to be the most anti-democratic tool in Congress, one that weaponizes minority rule, and is viewed by many constitutional scholars as unconstitutional for this reason. Its use is all the more problematic when deployed to defeat a constitutional amendment that has already satisfied all of the requirements proscribed by Article V. There is compelling precedent for the proposition that the Senate’s filibuster rule should not apply to a vote on this kind of measure. 

In 1978, when the Senate was considering whether to extend the deadline for state ratification of the ERA, a motion made by Senator William Scott of Virginia would have required a supermajority vote — essentially a filibuster rule.  After robust debate, it was handily rejected by a vote of 33-58, including 12 Republican senators joining the Democrats.

When Majority Leader Charles Schumer (D-N.Y.) brings a vote to the Senate floor on lifting the deadline, a majority of senators will vote in favor, signaling the final step needed for “We, the People” to add to the Constitution: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

Katherine Franke is the James L. Dohr professor of Law at Columbia University and faculty director of the ERA Project.