“Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” The Equal Rights Amendment can be added to the U.S. Constitution as the 28th Amendment — once it is legitimately ratified by three-fourths of the states.

But the ratification by Virginia in January, making it the 38th state and theoretically putting the ERA over the top, isn’t nearly as simple as the text of the amendment, no matter what the attorneys general of three states claim.

The first complication is that when a supermajority of Congress approved the ERA on March 22, 1972, getting it over the first constitutional hurdle, the states were given seven years to ratify, until March 22, 1979 (a deadline later extended to 1982). Congress wasn’t required to set a deadline, as the 1789 Bill of Rights didn’t have one and its congressional pay amendment was ratified 202 years later, in 1992. But for the ERA, a deadline was set in federal statute, and likely still has force of law.

A bigger problem is that five of the ratifying states have rescinded their earlier approvals. They can’t reasonably be counted as among the 38.

It’s a free country, and states are within their rights to press the case in federal court. It probably plays well electorally, but they’ve almost surely got a losing argument.

The Constitution is not to be trifled with. Amend it by the book or not at all.


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