Committee Holds Historic Hearing on the Equal Rights Amendment
Washington, D.C. (October 21, 2021)—On the heels of the 50th anniversary of House passage of the Equal Rights Amendment (ERA), Rep. Carolyn B. Maloney, Chairwoman of the Committee on Oversight and Reform, held a hearing examining the final steps necessary to certify and publish the ERA as the 28th Amendment to the U.S. Constitution.
“As the first woman to chair this Committee, I am particularly proud to convene this hearing on what I believe is the most important thing we can do to ensure gender equality in this country—finally putting the Equal Rights Amendment in the Constitution. Gender discrimination is a persistent problem, yet our country’s foundational document does not guarantee equality regardless of gender. That is why I have introduced ERA resolutions 13 times during my career in Congress, and why I am so committed to seeing this amendment adopted as part of our Constitution now,” said Chairwoman Maloney in her opening statement.
Ahead of the hearing, Chairwoman Maloney sent a letter to President Biden and Vice President Harris calling on the Administration to rescind the Trump-era legal opinion from the Office of Legal Counsel (OLC) that has needlessly held up the ERA’s certification despite having met the constitutional requirements for adoption after being ratified by 38 states. The Chairwoman also wrote to the Archivist of the United States David Ferriero, urging him to certify and publish the ERA.
“Federal law directs the Archivist of the United States to certify and publish amendments that have met the requirements laid out in Article V of the Constitution. This is a purely ministerial duty, which should be done automatically. But under President Trump, the Department of Justice issued an opinion advising the Archivist not to certify the ERA. Today, I am releasing a letter from preeminent legal scholars stating that this Trump-era legal opinion is legally erroneous and should be withdrawn,” continued the Chairwoman.
At today’s hearing, the Committee heard testimony from Carol Jenkins, President of the ERA Coalition; Virginia State Senator Jennifer McClellan; Alyssa Milano, Actor and ERA Advocate; Professor Victoria Nourse, Georgetown University Law Center; Bamby Salcedo, President of TransLatin@ Coalition; Eleanor Smeal, Founder and President of the Feminist Majority Foundation. Minority witness Inez Feltscher Stepman, Senior Policy Analyst, Independent Women’s Forum, also testified.
- Ms. Jenkins testified about the urgency of adding the ERA to the Constitution, stating “We cannot by piecemeal give fundamental equality. It doesn’t work. Every season gives us another chance to detract from full citizenship and from full lifesaving rights. So we really, I think, in this country need to come to grips with the fact that the Constitution does not fully support girls and women. We need to do that. Let’s get the Equal Rights Amendment.”
- In response to a question from Chairwoman Maloney on the continued needed for the ERA, Ms. Smeal added: “Statutes can be easily changed and they have been. Title VII and Title IX have been changed. None of them are complete and we cannot rely on the 14th Amendment or the interstate commerce clause. The Violence Against Women Act had a section in it which said that the survivor could take a federal action, a civil action to get damages in federal court …. That was declared unconstitutional. The ERA would give a survivor of sexual violence a chance in the federal courts.”
- Bipartisan Committee Members, including Republican Rep. Clay Higgins, expressed support for the ERA during the hearing.
Witnesses agreed with preeminent constitutional scholars that Congress has the ability to extend or eliminate the ERA’s time limit, and that this limit “may be non-binding hortatory language.”
- In response to questioning from Rep. Gerry Connolly, Professor Nourse testified, “Timing is not written into the text of the Constitution.... I think Congress has plenary power to read that as it wishes. [The time limit] appears to me to be preparatory or advisory language. That is not what the states ratified.”
- Asked by Rep. Sarbanes about the message the United States is sending to the rest of the world if we fail to pass the ERA, Ms. Milano testified: “We’ve also heard a lot today about just starting over, ‘let’s start this process over.’ How long do we need to wait for women, trans women, non-binary people to be included in our founding document?”
- Rep. Speier, lead sponsor of the House-passed H.J. Res. 17,which would eliminate the arbitrary time limit for ratification of the ERA, testified: “Countries that have looked to us to model their Constitutions have recognized the equality of women and men, yet we fail to do the same. We are here today because despite the tremendous progress women have made, we are still deeply unequal in society.”
- Democratic Members of the Committee urged the Senate to take up S. J. Res. 1, the companion bill to Rep. Speier’s resolution.
Witnesses emphasized that the ERA would not only help ensure pay equity, it would also strengthen protections for the LGBTQ+ community, protect reproductive rights, and prevent sexual assault and violence against women, and more.
- In response to a question from Rep. Bush on how the ERA would reinforce legislation protecting the LGBTQ+ community, Ms. Salcedo testified: “We need constitutional protection for all peoples and the Equality Act, unfortunately, does not do that. The Constitution will do that when the ERA is there.”
- In response to a question from Rep. Pressley on why the constitutional protections found in the ERA are important to ensure safe and legal abortion for the most vulnerable communities, Senator McClellan testified: “The Supreme Court has long recognized that reproductive freedom is essential to one’s equality. As the Court said in Planned Parenthood v. Casey, the ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives. Abortion is healthcare and the ERA is about gender equality in access to healthcare, and the workplace, and in school and every aspect of federal and state law and policy.”
Experts confirmed the Equal Rights Amendment has met the constitutional requirements for adoption after being ratified by 38 states, and called on the Archivist of the United States to certify and publish the ERA as the 28th Amendment without delay.
- In response to a question from Chairwoman Maloney on whether the Trump-era legal memo is binding legal precedent, Professor Nourse stated unequivocally, “No, it is not binding legal precedent. I actually believe that no President, whether Republican or Democrat, has legal authority to issue a binding Constitutional opinion on Congress’s authority because Article V only mentions Congress. The President has no role.”
- When asked by Rep. Raskin about the authority of this memo, Professor Nourse testified: “OLC really in this case has no authority because the President is not part of the amendment process. We heard from Mr. Connolly that Article V starts with Congress—it’s about Congress’s authority.
- When discussing Virginia’s vote to ratify the ERA in January 2020, Senator McClellan explained: “We looked at the text of the Constitution and what it told us to do was ratify the amendment. There is nothing in the Constitution about deadlines or rescissions and we did what we were authorized to do under the Constitution.”
Click here to watch the hearing.