ERA, 28th Amendment Possibly Ratified, now part of constitution

[Skill and Chance]

This is going to drive so many Supreme Court decisions of unanswered questions, which is not a bad thing.

This blatantly goes against the text as far as length of time, so do deadlines apply in constitutional amendments being approved? For the Equal Rights Amendment to stand, the answer has to be no.

Does a legislature rescinding previous approvals have any standing? For the Equal Rights Amendment to stand, the answer has to be no.

The rescending approvals answer has a lot to deal with the call for an Article V Convention.

There's no mention of setting deadlines anywhere in Article V.  I don't see how Congress gets to enforce a time limit on the process if there's no time limit on the process anywhere in the constitutional text and there's also the precedent of finishing a ratification in the 1990's that started in the 18th century in the case of the 27th Amendment.

However, if there is no time limit, the argument against state rescissions becomes much weaker.  I think the likeliest outcome is that SCOTUS would rule against enforcing the deadline but in favor of the state rescissions.  If that happens, the amendment would be a live issue, but it would need at least 4 more states to ratify for it to take effect.  If VA ratifies it, it will have been ratified by all states where Democrats currently control the state government.  There are also many ratifying states that currently have Republican legislatures that could vote to revoke. 

[Skill and Chance]

can someone explain how life would be different if it were to pass?  What rights are not equal in 2020?

I think there is some fear of a deeply conservative SCOTUS eventually gutting some of the existing 14th Amendment precedents.  There is also the situation where NM adopted ERA language in its state constitution and then the NM state supreme court used that language to strike down a state law against Medicaid funding of abortion, with the implication that the ERA language prevents the state from enacting any significant restrictions on abortion.

   

[Skill and Chance]

can someone explain how life would be different if it were to pass?  What rights are not equal in 2020?

I think there is some fear of a deeply conservative SCOTUS eventually gutting some of the existing 14th Amendment precedents.  There is also the situation where NM adopted ERA language in its state constitution and then the NM state supreme court used that language to strike down a state law against Medicaid funding of abortion, with the implication that the ERA language prevents the state from enacting any significant restrictions on abortion.

   

Well that would be an interesting turn in jurisprudence, to base abortion rights law on the ERA when, after all these years, abortion rights law had always been inferred from the Due Process Clause of the 14th Amendment, not the Equal Protection Clause of the 14th. On the other hand, the Justices seem to treat those two clauses as if they are both little Rohrshach tests anyway, and perhaps it just doesn't matter from which of the clauses the Court infers abortion rights.

To answer deadoman, I don't even think there is any significant difference in divorce laws between how the sexes are treated. Not according to SCOTUS precedents. The Court took care of one of the aspects of divorce inequality in Orr v. Orr, 1979, when it struck down a law that provided men with no alimony pay if they divorced a wife who was making more than the husband. See here. As it says in that article, the Court applies "intermediate scrutiny" to all gender discrimination cases, and perhaps proponents of the ERA want the courts to always apply "strict scrutiny" from now on instead. That way, even the gender discrimination in the example of the draft will eventually get struck down. See Rostker v. Goldberg. The draft is still one of the examples of sex inequality in US law, so far as I know.

Interestingly, Ginsburg stated early in her career that she would have preferred to strike down abortion bans as unconstitutional sex discrimination vs. what became the actual Roe/Casey due process rationale.

A semi-plausible turn of events: Trump is reelected and gets to replace Ginsburg and Breyer.  A highly conservative mid-2020's SCOTUS then strikes down Roe/Casey.  Then coalitions substantially change to give the left a long term advantage in controlling the Senate.  A left-leaning SCOTUS then returns to the issue circa 2045 and finds a right to abortion in the ERA or in the 14th Amendment Equal Protection clause without touching the overturned 20th century due process precedents. 

Also, there is a long history of US law evolving in such a way that a previously proposed amendment is no longer necessary.  For example, the whole 18th and 21st Amendment saga of Prohibition would be unnecessary today as banning/heavily regulating alcohol sales (and repealing such a ban) could all be done through normal legislation as an exercise of congress's commerce powers.  The same thing happened with the Child Labor Amendment.  And a SCOTUS ruling using the 14th Amendment equal protection clause that long predated the 24th Amendment to strike down an even broader range of poll taxes followed just 2 years after the 24th Amendment was adopted. 

 

[Skill and Chance]

can someone explain how life would be different if it were to pass?  What rights are not equal in 2020?

I think there is some fear of a deeply conservative SCOTUS eventually gutting some of the existing 14th Amendment precedents.  There is also the situation where NM adopted ERA language in its state constitution and then the NM state supreme court used that language to strike down a state law against Medicaid funding of abortion, with the implication that the ERA language prevents the state from enacting any significant restrictions on abortion.

   

Well that would be an interesting turn in jurisprudence, to base abortion rights law on the ERA when, after all these years, abortion rights law had always been inferred from the Due Process Clause of the 14th Amendment, not the Equal Protection Clause of the 14th. On the other hand, the Justices seem to treat those two clauses as if they are both little Rohrshach tests anyway, and perhaps it just doesn't matter from which of the clauses the Court infers abortion rights.

To answer deadoman, I don't even think there is any significant difference in divorce laws between how the sexes are treated. Not according to SCOTUS precedents. The Court took care of one of the aspects of divorce inequality in Orr v. Orr, 1979, when it struck down a law that provided men with no alimony pay if they divorced a wife who was making more than the husband. See here. As it says in that article, the Court applies "intermediate scrutiny" to all gender discrimination cases, and perhaps proponents of the ERA want the courts to always apply "strict scrutiny" from now on instead. That way, even the gender discrimination in the example of the draft will eventually get struck down. See Rostker v. Goldberg. The draft is still one of the examples of sex inequality in US law, so far as I know.

Interestingly, Ginsburg stated early in her career that she would have preferred to strike down abortion bans as unconstitutional sex discrimination vs. what became the actual Roe/Casey due process rationale.

A semi-plausible turn of events: Trump is reelected and gets to replace Ginsburg and Breyer.  A highly conservative mid-2020's SCOTUS then strikes down Roe/Casey.  Then coalitions substantially change to give the left a long term advantage in controlling the Senate.  A left-leaning SCOTUS then returns to the issue circa 2045 and finds a right to abortion in the ERA or in the 14th Amendment Equal Protection clause without touching the overturned 20th century due process precedents. 

Also, there is a long history of US law evolving in such a way that a previously proposed amendment is no longer necessary.  For example, the whole 18th and 21st Amendment saga of Prohibition would be unnecessary today as banning/heavily regulating alcohol sales (and repealing such a ban) could all be done through normal legislation as an exercise of congress's commerce powers.  The same thing happened with the Child Labor Amendment.  And a SCOTUS ruling using the 14th Amendment equal protection clause that long predated the 24th Amendment to strike down an even broader range of poll taxes followed just 2 years after the 24th Amendment was adopted. 

 

Had this ruling gone the other way, there could still be poll taxes in state level elections.  The 24th Amendment specifically exempted them and there was no prospect of passing another poll tax amendment right after that one.

I agree that opinion looks like making it up as they go along, but the federal courts simply should not stand for such an end run around the original intent of the Civil War Amendments as the Southern poll taxes were.  I would have loved for SCOTUS to instead find an affirmative right to vote (for all US citizens of age) in the 1st Amendment petition clause and then incorporate it on the states.  What would you think about that?

[Skill and Chance]

Has there been any word on when the Supreme Court will rule on whether Virginia's ratification of the ERA will be allowed to stand? 

I personally believe that a ratification deadline set by Congress through legislation is unconstitutional. However, if the deadline is unconstitutional, it seems like the 6 revocations also have to be valid.  That would mean it's still pending before the states with 32 out of the 38 ratifications needed.  However there are 12 states with Republican legislatures that could try to immediately rescind, effectively ending any chance of ratification in the current political era.  I highly doubt that New Hampshire has any interest in rescinding and Michigan Republican likely don't have the votes to do it, but it's a pretty safe bet to pass in all of the other 10 state legislatures. 

It would be wise for Democrats to lay low on this issue until their position has improved enough in the South.  None of the Southern states have ratified except for VA.  The most plausible path would be to keep the all of the currently standing ratifications in the North and West and then hope they start flipping Southern legislatures over the next 10-20 years.