For Sen. Ben Cardin (D-Md.), there’s an element of deja vu in his push to put the Equal Rights Amendment in the Constitution.
He’s been here before. Specifically, 51 years ago in the Maryland House of Delegates, when he voted to ratify the ERA the first time. Now, Cardin is leading the charge in theU.S. Senate alongside Sen. Lisa Murkowski (R-Alaska) to allow the ERA to move forward. “It’s time to finish the work,” he said on the Senate floor Wednesday ahead ofThursday’s vote on the amendment. “There is no time limit on equality.”
The effort, however, failed in the Senate on Thursday by a vote of 51-47, short of overcoming the Senate filibuster requiring the support of 60 senators to advance a bill.
“This is not the end,” Cardin said at a news conference with ERA advocates after the vote. Senate Majority Leader Charles E. Schumer (D-N.Y.) added: “We lost this vote. We are going to win this fight,” leading advocates in a chant.
The ERA would be the 28th amendment to the Constitution, enshrining a protection against sex discrimination. Cardin’s resolutionsought to remove a deadline for states to ratify the amendment that Congress created in 1972 and extended once. But in an interviewwith The Washington Post ahead of the vote, Cardin already anticipated difficulty getting enough Republicans to vote for his resolution — creating a sense of disappointment for the senator that it was easier to build a large bipartisan coalition to support an amendment against sex discrimination in 1972 than it has been in 2023.
“I think we all felt that this would be ratified. We didn’t know how long it would take, but we knew this would happen,” Cardin said, reflecting on 1972. But “it’s very frustrating, no question about it,” headded, realizing that in fact it stillmight not happen — at least not today.
Dozens of advocates of the ERA spanning several generations stood with Democratic senators to express disappointment in Republicans who did not back the amendment — only Murkowski and Sen. Susan Collins (R-Maine) did — while pledging to keep on the pressure.
Rep. Ayanna Pressley (Mass.), the lead sponsor in the House, Rep. Cori Bush (Mo.) and other House Democrats led a march to the Senate with the advocates, including actress Alyssa Milano. They sat in the chamber as Cardin and Murkowski gave speeches in support of the amendment to a small audience. No Republicans opposed to the resolution came to debate against it, something Pressley said she found “demoralizing” as she watched the vote occur.
“I wish I could say I am disappointed, but in order to be disappointed, I would have to be surprised,” she said, adding: “Despite it all, we ain’t gonna let nobody turn us around, because the women of this country are battle-tested.”
The ERA was initially introduced in Congress 100 years ago, though it did not go anywhere until the ’70s. Cardin was 28 years old when Congress initially passed the ERA in 1972 and sent it off to state legislatures across the country for ratification, with Maryland being in the early batch of states that quickly ratified it.
At the time, sex discrimination abounded in Annapolis. The House speaker had refused to allow a female delegate to attend meetings with House leadership and had appointed her the “chairman of the ladies’ restroom committee,” as The Post reported in 1972. The House refused the introduction of a bill to amend Maryland’s motto, which translated to “manly deeds, womanly words” (the translation waschanged in 2017).
And before the House of Delegates voted on whether to ratify the ERA, lawmakers heard a rousing speech from one Democrat: “Men were put on this world first. Second, women come from the rib of a man. Third, women are generally physically weaker than men. Women are usually best for staying at home where the stresses are usually in keeping with their patient temperament.”
He was encouraging colleagues to vote for the amendment, hoping women’s “femininity” would not fundamentally change under the ERA. It passed 86-32.
The breakdown of those in support or in opposition was not particularly partisan. In fact, the 1972 national platforms for the Republican and Democratic parties both encouraged the ratification of the amendment.
“There were some naysayers, but not many. The debate was that we’ll have to have women in the military in combat — lo and behold, we do have women in combat now,” Cardin said. “There were just old-fashioned thoughts about gender.”
Cardin initially introduced his resolution to remove the deadline to ratify the ERA in 2012, picking up the issue from a senator who retired. He said he decided to take the lead on the resolution inspired by the women in his family — his mother, wife and daughter — and because it fit within his broader work on international human rights, something Democrats commended Cardin for in speeches Wednesday evening.
“We’re not meeting the standards that democratic states are exhibiting throughout the world,” said Cardin, noting as he frequently does that every democratic constitution passed since World War II has included sex-based discrimination protections. “So for the United States to continue to be a leader, we’ve got to take care of business at home.”
Those opposed to Cardin’s resolution have largely stood firm in believing the deadline Congress set to ratify this amendment has passed and Congress should not be intervening decades later to revive it.
The Constitution does not set a deadline for amendments to be ratified. It requires that Congress pass an amendment with a two-thirds majority and that three-fourths of states — 38 — ratify the amendment.
In the case of the ERA, Congress included a seven-year deadline for the amendment in 1972, and the deadline was later extended to 1982. By then, only 35 states had ratified. But Virginia became the 38th state in 2020, adding momentum among women’s rights advocates and some in Congress to belatedly enshrine the amendment in the Constitution.
Courts have ruled that state legislatures that voted to ratify after the deadline don’t count because they were late. Those who agree with Cardin’s view, however, believe that because Congress created the deadline, it can have the final word on removing it.
There is precedent for belated approvals of a constitutional amendment. The 27th Amendment, which concerns pay for federal lawmakers, was passed by the first Congress in 1789 — but not ratified by three-fourths of the states until more than 200 years later. Congress had not set a deadline in that case.
Murkowski called arguments against the ERA “hollow” on the Senate floor, saying she did not see how colleagues could view the resolution as controversial.
“Some have suggested that the Equal Rights Amendment is no longer needed. We’ve certainly made great strides as women since 1923 — but there’s a lot more that needs to be done,” Murkowski said, before elaborating on issues including the persistence of a gender pay gap. “Women are a majority of the population but continue to be underrepresented in public office, in the business world and so many other areas.”
Democrats who joined Cardin on the Senate floor Wednesday also pointed to the Supreme Court’s ruling last year overturning the right to an abortion, saying it added urgency to the vote on the ERA.
“There’s a sign you often see at rallies for reproductive rights. Women my age or older will often be holding it: ‘I can’t believe we’re still fighting for this crap,’” said Sen. Debbie Stabenow (D-Mich.). “As I stand here on the Senate floor in the year of our Lord 2023, I can’t believe we’re still fighting for equal rights for women under our American Constitution.”
Zakiya Thomas, president of the ERA Coalition, said at the news conference with Cardin that despite the failed vote, Thursday still marked progress. “We are by no means down and out,” she said, “and neither is the ERA.”
