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The ERA was sent to the states in March 1972 with a seven-year ratification window in the joint resolution of Congress. By 1979 not enough states had ratified to meet the three fourths bar, and several states had rescinded their ratifications, an act known as retrocession, or rescission as the shortened legal term. Congress reset the ratification window to March 1982, but there was a problem.

Congress used the legislative process, not the amendatory process, to do this. The legislative process requires only a simple majority in the House and Senate and a presidential signature. The amendatory process requires a two thirds vote in the House and Senate; the president is not a participant. President Carter had misgivings about the constitutionality of what Congress had done, but he signed it anyway and decided to let the courts hash it out.

The National Organization of Women took it to federal court in the case of NOW v. Idaho. The federal district court stated that Congress used the wrong process to extend the ratification window by three years; therefore, the ratification window closed in March 1979, and no other ratifications past that date could be considered.

This decision was appealed to the federal circuit court, which declined to hear the case. The Supreme Court received the case after the March 1982 window had closed, declared the case moot and refused to grant cert, i.e. to hear the case.

The only way to revive the ERA would be to start the process all over again and get two thirds of both Houses of Congress to send it to the states for ratification. The recent ratifications of three states are null and void, and thus they are no more than virtue signaling.

The Justice Department issued a ruling stating that the ratification window closed in March 1982 – which was an error. It actually closed in March 1979 as decreed by the federal court in Idaho. The department ordered the Archivist of the United States not to count the three recent ratifications.

The first attempt to get around this was to file a suit in federal court ripping the ratification window from the joint resolution and opening it up for further ratifications. It was understood that such a suit would fail. Federal courts do not like to tamper with settled law, especially something like the Dillon decision that affects process. Only the Supreme Court itself could change Dillon, and that would throw the entire amendatory process into chaos. While the Left enjoys chaos, the courts do not.

Let’s analyze this.

Even if the House repealed the unconstitutional March 1982 window, the Senate would not consider it, nor would the President sign it.
Even if enacted into law, repeal would only clean up the legislative mess left over when the federal court ruled that Congress had used the wrong process to extend the ratification window in the first place.
Even if enacted into law, the ratification window would be reset to March 1979, not reopened to infinity. This is exactly what the federal court ruled in the first place.

Bottom line: The ERA is dead, and nothing Congress or the courts can do will bring it back. Only by starting all over again can a new ERA be submitted by Congress to the states for ratification.

Thank you for taking the time and effort to give a detailed and comprehensive response. It is a reassuring explanation. The ERA as written applied to today’s America world as catastrophe there’s no other word for it. RBG as a sitting SC Justice had no business even commenting on it. It would mean a recusal would be absolutely called for if it landed at the SC. Of course rats never recuse, never.

Excellent post. An example of FR at its best!

Thanks for that explanation!

Very informative post. Thanks.

Great, clear analysis. Thank you.

Clear explanation, thank you.

“Bottom line: The ERA is dead, and nothing Congress or the courts can do will bring it back. Only by starting all over again can a new ERA be submitted by Congress to the states for ratification.”

Excellent timeline and history of this proposal.