Keeping Hope Alive: A Case Study of the Continuing Argument for Ratification of the ERA

Abstract

Keeping Hope AliveA Case Study of the Continuing Argument for Ratification of the ERA Lindsley Armstrong Smith (bio) and Stephen A. Smith (bio) The call for this special issue asserted that the Equal Rights Amendment (ERA) “ultimately failed to receive enough state ratifications before its deadline in 1982. Despite its repeated failure the ERA has served as a symbolic torch carried by generations of feminists fighting for women’s rights.” However, not everyone has conceded defeat in the effort to ratify the ERA, and we argue that a prognosis is more appropriate than a postmortem. At the federal level, there seems to be some interest but little chance of success in reviving the prospects for the Equal Rights Amendment by extending the time to secure ratification by three more states. At the state level, however, there are continuing attempts to ratify the Equal Rights Amendment, the presumed 1982 deadline notwithstanding. In more than half of the states that have yet to ratify the ERA, it is a clear and continuing point of stasis in legislative battles that have persisted for more than a decade. Explicating the ways people continue to engage with the Equal Rights Amendment in academia, legal and political practice, and grassroots advocacy, we present a case study of the ongoing twenty-first-century effort to ratify the ERA in Arkansas. The literature addressing the political and rhetorical dimensions of the unsuccessful ratification campaigns of the past is voluminous and insightful, although most of it is now three decades old and focuses on the broad national dialogue before 1982.1 Among these are several studies that looked specifically at the efforts in Arkansas.2 Valuable case studies exist of individual state efforts during the original ratification period, such as that of Illinois, by Jane Mansbridge.3 Another addresses North Carolina, by Donald Mathews and Jane Dehart, but there is scant scholarly attention to any state ratification efforts after the extended 1982 statutory deadline.4 Attempts to ratify the ERA in Arkansas in the 1970s, well covered in previous studies, were vigorously contested but ultimately unsuccessful. We focus upon and examine the revived efforts to secure ratification between 2005 and [End Page 173] 2013. We confirm much of the earlier research about the failure to ratify in the first period of 1973–81; however, the main contribution here is our analysis of the renewed and continuing effort to persuade Arkansas to ratify after the expiration of the purported deadline, embracing the “three-state strategy.”5 The 1997 publication of an article in the William and Mary Law School Journal on Women and the Law made the argument that the ERA was still viable—the rationale being that Congress could legislatively adjust or repeal the existing ratification deadline, determine whether or not state ratifications after the expiration of a time limit in a proposing clause are valid, and promulgate the ERA after the thirty-eighth state ratifies.6 Supporters of this three-state strategy also argued that the ratification deadline was only in a resolving clause and not in the amendment itself and that Congress, having already extended the ERA deadline once, had the power to do so again. The Congressional Research Service analyzed this legal argument in 1996 and 2014, concluding 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.7 While this is a plausible argument, not all legal scholars agree. Yet no court has directly addressed the issue. Arkansas, of course, is not the only state in which ratification continues to be pursued. Missouri led the way with introduction of a resolution to ratify in 2000.8 Eight of the fifteen non-ratifying states have seen efforts in the last few years. Resolutions were recently introduced in Florida (2015), Nevada (2015), North Carolina (2015), Arizona (2016), Illinois (2016), Missouri (2016), and Virginia (2016). The Virginia Senate approved ratification resolutions in 2011, 2012, 2014, 2015, and 2016. The Illinois Senate approved a ratification resolution in 2014, but the Illinois House has not approved ratification since 2003.9 Closely examining the ratification efforts in Arkansas during the last decade...