Equal Rights Amendment remains in legal limbo

In 1923, three years after the U.S. Congress gave women the right to vote, suffrage leader Alice Paul introduced the Equal Rights Amendment, which would officially extend the rights of the U.S. Constitution to American women.

Nearly 50 years later, after women spent decades marching and rallying and campaigning, Congress passed the ERA in 1972 and gave the states seven and then 10 years to ratify it. Over that next decade, only 35 of the requisite 38 states did so and so the ERA lingered in amendment limbo and the Constitution remained unchanged.

But on Wednesday, nearly a year after Rep. Carolyn Maloney gave a speech before the U.S. House of Representatives and 45 years after the ERA passed in Congress, Nevada ratified the amendment, making it the first state in 40 years to do so and perhaps leaving the ERA just two states away from finally amending the Constitution.

"In order for the amendment to become law, there are two major legal obstacles," said Doni Gewirtzman, a New York Law School professor of law. The professor identified the first of those obstacles as that deadline Congress set for three-quarters of the states to ratify the ERA and the states' failure to meet it.

"The second major obstacle is that five of the 36 states that have ratified the amendment have actually gone back and rescinded the ratifications," Gewirtzman said.

The legal effect of those ratifications remains unclear, requiring some institution to officially and legally resolve these questions.

"What I expect is it'll be up to Congress to make those decisions," Gewirtzman said.

The National Organization for Women crafted what it called a "three-state strategy" to see the ERA ratified. On Wednesday, its president renamed that tactic a "two-state strategy" and declared Nevada's decision "... a ringing declaration of support for the explicit guarantee of constitutional rights for women. The failure of the Framers to include women in our nation's founding documents is a constitutional failure that has long demanded correction."

Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Utah, and Virginia are the remaining states yet to ratify the ERA.