FAQs on the Equal Rights Amendment
What is the ERA?
The Equal Rights Amendment to the U.S. Constitution is a basic human rights reform, which guarantees that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” Passed by a bipartisan supermajority of Congress in 1972 and now ratified by three-quarters of states, it has met the constitutional requirements of an amendment. The ERA would ensure women equal citizenship status for the first time in U.S. history.
Why do people of faith support the ERA?
The U.S. Constitution is the highest statement of our nation’s principles and values. To affirm gender equality within this revered document is to affirm and respect the deeper truth of equal human dignity and worth of all people. This reform is a necessary step toward correcting for the wrongful subjugation, oppression, and degradation of women and LGBTQ+ individuals.
We understand through the sacred text of Genesis that humankind is made in the divine image irrespective of gender (“in the image of God he created them; male and female he created them”), and that women, like men, possess sacred and equal human dignity and worth (Gen. 1:27). This is the foundation for all natural human rights. As stated in the Interfaith Statement in Support of the ERA: “all people are equally valuable in the sight of their Creator, and thus deserve equal regard in human laws and legal systems.”
The ERA has faced conservative religious opposition since the 1970s and is still opposed by many in the name of religion. At #Faith4ERA, our belief in the dignity and worth of the human person and our concern about pervasive gender-based rights violations moves us to advocate for the equal human rights of all people under law.
How does the ERA reflect human rights?
Human rights, by definition, are universal. They are those basic liberties and privileges to which all people are entitled. This means they must be available on a basis of equality and non-discrimination to people of every race, color, sex, gender, nationality, and religion.
The United States has made numerous, legally binding commitments to respect these foundational human rights principles. The U.S. Senate has approved international treaty agreements on ending racism and torture, and on protecting civil and political rights, promising in each case to ensure equality and non-discrimination on the basis of sex.
Despite these commitments, the U.S. is among only 15% of nations that fail to explicitly protect women’s rights or prohibit gender discrimination in their national constitutions. The lack of an Equal Rights Amendment undercuts U.S. credibility on women’s rights globally, and prevents us from leading by example.
What is the ERA’s status today? Why is the ERA before Congress again?
The ERA has met the rigorous requirements for a constitutional amendment: A two-thirds supermajority of Congress passed the ERA in 1972 and a three-fourths supermajority of states have since ratified it. Virginia became the 38th state in 2020 and the ERA became effective in January 2022. But it has not yet been certified and published by the U.S. Archivist. We believe it should be.
Some contest the ERA’s validity based on a disputed legal memo issued by the Trump Administration’s Department of Justice Office of Legal Counsel, which deterred the Archivist from publishing the ERA as part of the Constitution.
Some claim it is too late for the ERA to be finalized, based on an arbitrary ratification deadline imposed by Congress in 1972. However, a bevy of legal experts have explained that Congress can change the deadline, as it did once before, or disregard it. This deadline was not part of the amendment states approved and imposing it violates the balance of congressional and state powers in the amendment process.
Two bicameral resolutions have been introduced to clarify that the ERA is the valid and enforceable 28th Amendment. Although we do not believe these are necessary to give the ERA legal effect, they will underscore democratic support for the ERA and resolve confusion over the ERA’s status.
Don’t women already have equal rights under the U.S. Constitution?
No. Women were originally excluded from the Constitution and have only gradually, over the last 50 years. won some measure of equal protection—but it is not the same equal protection others enjoy. The ERA is necessary to ensure women equal citizenship status. It will mean sex discrimination is taken just as seriously as as racial or religious discrimination.
Despite incremental gains over the last five decades, the Equal Protection Clause of the 14th Amendment currently fails to provide women the same level of protection as other groups. The Supreme Court evaluates gender-based classifications under “intermediate scrutiny,” a muddled legal standard prone to an array of judicial interpretations, inconsistent application, and less rigorous judicial review than “strict scrutiny,” which is applied to racial and religious classifications. By applying a lesser standard to sex discrimination, the Court sends a signal that it is less serious than other types of discrimination.
The Supreme Court’s 2022 decision in Dobbs v. Jackson further threatens the partial constitutional protections that women and LGBTQ+ citizens currently enjoy and the last 50 years of progress toward gender equality. It invoked the so-called “original” meaning of the 14th Amendment from 1868—when women were excluded from Equal Protection entirely.
How would the ERA help women and LGBTQ+ citizens?
The ERA will empower Congress to pass more effective laws to address prevalent abuses women suffer every day in this country–including sexual and domestic violence, pregnancy and pay discrimination, female genital mutilation/cutting (FGM/C), child marriage, high maternal mortality, and other injustices.
Currently, Congress is constrained in responding to these problems by the limited constitutional bases for legislation, or thwarted by judicial rulings that strike down or limit helpful legislation. For example, the civil remedy enabling survivors to sue their abusers under the Violence Against Women Act (VAWA), and the 1996 statute criminalizing (FGM/C)—both of which were struck down due to lack of constitutional foundation—would have been supported by the ERA.
The Supreme Court’s 2022 decision in Dobbs v. Jackson destabilized the constitutional basis for prior decisions that protect marriage equality and ensure that same-sex relationships cannot be criminalized under state law. The ERA would buttress these protections and prohibit states from discriminating on the basis of sex, sexual orientation, or gender identity.
Without a firm constitutional foundation of equal citizenship for women and men, as well as LGBTQ+ citizens, our justice system will continue to fall short of the noble ideal of “equal justice under law.”
Does the ERA ensure protection for LGBTQ+ persons, as well as women?
We hope so. In a 2020 decision interpreting Title VII of the Civil Rights Act of 1964, the Supreme Court found that employment discrimination based on “sex” includes discrimination on the basis of sexual orientation. This suggests the ERA could be given a similarly inclusive interpretation, to encompass LGBTQ+ rights.
We hope the ERA is interpreted to protect all people in America from harmful, hurtful discrimination–whether based on biological sex, gender expression or identity, or sexual orientation. Our faith calls us to draw everyone into the community, not to shut anyone out. We want all people to have fair access to the things everyone needs–safe housing, secure employment, the liberty to build families, the dignity and security of not being turned away from a restaurant or a grocery store.
Human rights, by definition, are universal. Equality before the law is a basic human right to which all people are entitled. This is an important safeguard for marginalized communities, including the LGBTQ+ community, which suffers poverty, homelessness, hate crimes, and attempted suicide at higher rates than the general population.
Didn’t some states “rescind” (or undo) their ratification of the ERA?
Although five states tried to rescind their ratification of the ERA, there is no legal precedent that allows for a state that has ratified a constitutional amendment to later “un-ratify” it. Article V of the Constitution governs the amendment process and does not provide for this.
Following the Civil War and the abolition of slavery, Congress ratified the 14th and 15th amendments to extend previously denied citizenship rights to formerly enslaved persons. The 14th amendment guaranteed equal citizenship and equal protection under the law to African Americans, including all who were formerly enslaved. The 15th amendment prohibited states from disenfranchising voters based on race.
When Ohio and New Jersey attempted to rescind their ratifications of the 14th Amendment, Congress refused to recognize that attempt. Congress counted them among the ratifying states. Two years later Congress refused to acknowledge New York’s attempt to rescind its ratification of the 15th amendment.
In the same way, all 38 states that have ratified the ERA can be counted. In fact, in a 2012 letter the Archivist of the United States listed the states that had officially ratified the ERA, and included the five states that had tried to rescind.
Opponents claim the ERA would hurt women by taking away legal advantages they enjoy. Is this true?
Not at all. Most legal benefits—like spousal support and social security—are already afforded to women and men on a gender-neutral basis, so women will not lose special privileges.
Under the ERA, laws could still distinguish based on sex if they have an excellent justification. For example, a state would still be able to create a women’s shelter for survivors of intimate partner violence, which is limited to women in order to protect against trauma.
The ERA would not endanger private spaces like women’s restrooms and locker rooms, which are protected under Supreme Court precedent. Many states have had sex equality provisions in their state constitutions for years, and those states all still have single-sex prisons, locker rooms, and bathrooms.
Does establishing equal rights ignore biological differences between men and women?
Having equal rights before the law does not erase or diminish individuality or gender diversity; those are gifts God gave us, which cannot be taken away. Equal rights can and will prohibit the government from using these differences to disadvantage women and LGBTQ+ individuals.
Would the ERA require women to be part of a military draft?
Women have served honorably throughout our armed forces, in combat roles since 2015. Our military leadership values and relies on their service and contribution. Even without an ERA, there is no legal provision right now that prevents the draft from being extended to women, if it were to be reinstated.
If women can be drafted to defend their country, then certainly they should be afforded basic equality and inclusion in our constitution. Women have the full duties of citizenship; they are entitled to the full rights, as well.
Will the ERA secure a constitutional right to abortion?
The ERA concerns the value of equality—a fundamental principle of justice, vital to our faith and democracy. All human beings have dignity and worth as people made in God’s image, and all deserve equal treatment under the law.
It is impossible to know for certain whether the ERA will be interpreted to provide a new constitutional basis for the right to abortion. Many advocates argue that it should, but states with equal rights provisions in their state constitutions have not gone this far. Several states have reached limited rulings that require Medicare to cover medically-necessary abortion, while others have invoked the Hyde Amendment prohibition on federal funding of most abortion.
In recent years, lawmakers with diverse views on abortion rights have voted in favor of the ERA in Nevada, Illinois, and Virginia—because this reform is morally right as a matter of principle, and it will result in a great deal of good—reducing violence, poverty, and exploitation of women, and enabling them to build safer, stronger futures.
The ERA will help end injustice that puts pregnancies at risk, including violence against women, the heightened risk of gender-based violence during pregnancy, economic hardship faced by women and mothers, lack of access to quality maternal care, and pregnancy discrimination in the workplace.
When we consider all of its anticipated results, it is clear that the just and humane course of action is to finalize the ERA.
What does the ERA mean for religious freedom?
We care deeply about religious freedom; speaking out about the moral imperatives of our faith is what we do, day in and day out. In fact, the biblical call to seek justice for the widow is what inspires our advocacy for women’s rights.
Protections for religious liberty are robust and long-standing under our Constitution, and the First Amendment is not going anywhere. We expect the Supreme Court to continue to preserve an expansive sphere of religious liberty and to protect free exercise vigorously.
The Roberts Court has strengthened protections for free exercise of religion, ruling in favor of religious organizations far more frequently than its predecessors—over 81% of the time, compared to about 50% for all previous eras since 1953 (Epstein & Posner).
Religious communities will continue to have broad discretion to choose and remove their own ministers, according to their own criteria, free from government interference. Currently, the “ministerial exception” that grants this broad authority exempts religious organizations from all anti-discrimination laws in choosing their ministers.