The ERA Solidifies Women's Rights in the Constitution as the 28th Amendment

[boston bean]

Will the validity of the 28th Amendment be litigated?

Most Likely. The process of amending the Constitution is incredibly difficult. This is why it has only been previously amended 27 times. Throughout U.S. constitutional history, procedural questions and doubt around ratified amendments have been the norm and, over time, there have been concerns about the validity of many amendments that are now securely in place as accepted parts of the Constitution. Although the ERA has met all the requirements laid out in Article 5 to become an amendment, it is very likely its validity will be challenged in court. However, the Constitution affords no role in the ratification process to the Supreme Court. In a 1939 case, four justices in a key decision on another amendment strongly suggested that disputes over amendments were fundamentally political questions better left to the political branches—not the courts. The ERA has strong legal arguments to overcome the procedural claims against it, which is why the American Bar Association—an independent, nonpartisan association of the nation’s lawyers—passed a resolution in August affirming that the ERA has been appropriately ratified as the 28th Amendment. Plus, there is no role in Article 5 whatsoever for the judicial branch in the amendment process. If the U.S. Supreme Court intervenes to remove a ratified amendment from the Constitution, such a move would be unconstitutional and run counter to long standing precedent.

Who does the 28th Amendment cover?

All people. The full text of the operative section of the 28th Amendment reads in full, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” In nonlegal, terms this means it will cover anyone who experiences discrimination on the basis of sex—women, men, and anyone on the gender spectrum, including trans people. It will also cover people who experience discrimination on the basis of sexual orientation.

https://www.americanprogress.org/article/the-era-solidifies-womens-rights-in-the-constitution-as-the-28th-amendment/