Was the Equal Rights Amendment Passed or Ratified?

The Equal Rights Amendment was both passed and ratified — but not in a way that made it part of the Constitution. Congress passed the ERA in 1972 by the required two-thirds vote in both chambers, and 38 states have since voted to ratify it, meeting the three-fourths threshold Article V requires. The problem is timing. Congress attached a seven-year ratification deadline, later extended to June 30, 1982, and the final three ratifications did not arrive until 2017, 2018, and 2020. Because the deadline expired decades before those votes, no Archivist, court, or administration has recognized the ERA as adopted.

Passed by Congress in 1972

The House approved the ERA in 1971 under Representative Martha Griffiths of Michigan, and the Senate followed on March 22, 1972, completing congressional passage as House Joint Resolution 208.¹ Both chambers cleared the two-thirds threshold Article V demands for proposing an amendment, so on the “passed” question the answer is settled: yes, in 1972.

The three-section amendment sent to the states guarantees that equality of rights under the law cannot be denied on account of sex, gives Congress enforcement power, and takes effect two years after ratification.¹ Nothing in the text itself sets a ratification deadline. That detail was placed in the preamble of the proposing resolution, and it became the entire legal fight.

Ratified by 38 States

Ratification began quickly. Thirty states approved the ERA within its first year, and by 1977 the count reached 35 — three short of the 38 needed. Then it stopped. No additional state ratified before the original March 22, 1979 deadline, or before the extended June 30, 1982 deadline that Congress passed by simple majority in 1978.²

Nearly four decades passed with no movement. Then Nevada ratified in March 2017, Illinois in May 2018, and Virginia became the 38th state on January 27, 2020.³ On a raw count, the ERA has the ratifications Article V requires.⁴ Whether those late votes count is a different question.

Why It Isn’t in the Constitution

The resolution that sent the ERA to the states required ratification within seven years, by March 22, 1979. When it became clear the amendment would fall short, Congress voted in 1978 to extend the deadline to June 30, 1982. The extension itself was contested: the House approved it 233 to 189 and the Senate 60 to 36, both by simple majority rather than the two-thirds vote used to propose the amendment.² Critics argued a simple majority could not alter the terms of a pending amendment, and the extension’s legality was never definitively resolved because no additional state ratified during the extra time.

ERA supporters argue the deadline never had binding force in the first place, because it sits in the preamble of the proposing resolution rather than in the text states actually voted on. The three sections that make up the amendment contain no time limit at all. Opponents respond that Congress plainly meant the deadline to be a condition of ratification, and that the Supreme Court has recognized Congress’s authority to set reasonable ratification windows. The dispute has never been resolved by a definitive ruling.

The Rescission Complication

Even the 38-state count is contested. Five states voted to withdraw their earlier ratifications: Nebraska in 1973, Tennessee in 1974, Idaho in 1977, Kentucky in 1978, and South Dakota in 1979.³ If those rescissions are valid, the ratification total drops below 38 regardless of the deadline question.

Article V does not address whether a state can rescind a ratification. Congress has passed no statute on the point, and no court has issued a controlling ruling. During Reconstruction, Congress counted Fourteenth Amendment ratifications from states that had tried to withdraw them, which ERA supporters cite as precedent. Whether that practice would govern here is unsettled.

Why the Archivist Won’t Certify It

Federal law tasks the Archivist of the United States with publishing any validly adopted amendment along with a certificate identifying the ratifying states.⁵ When Virginia submitted its ratification in January 2020, the Archivist declined. The refusal traces to a January 2020 opinion from the Justice Department’s Office of Legal Counsel concluding that because the ratification deadline had expired, the ERA “has failed of adoption and is no longer pending before the States.”⁶

A 2022 OLC opinion under the Biden administration said the earlier opinion was “not an obstacle either to Congress’s ability to act with respect to ratification of the ERA or to judicial consideration of questions regarding the constitutional status of the ERA.”⁷ It did not withdraw the 2020 opinion or direct certification. In 2025, the National Archives stated that the ERA “cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.”⁸

What Courts Have Said

Three rulings shape the current legal picture. In Dillon v. Gloss (1921), the Supreme Court held that Article V lets Congress fix a reasonable ratification period as an incident of its power to designate the mode of ratification.⁹ In Coleman v. Miller (1939), the Court ruled that whether too much time has passed between proposal and ratification is a political question for Congress, not the courts.¹⁰

After the Archivist refused to certify the ERA, Illinois and other ratifying states sued to compel certification. In February 2023, the D.C. Circuit unanimously affirmed the dismissal, holding that the states had not shown a “clear and indisputable” right to force the Archivist’s hand and that his statutory reading was not clearly wrong.¹¹ The court leaned on Dillon and Coleman in concluding that deadlines are Congress’s call and mandamus is not the vehicle to override them.

What Would Have to Happen Now

The only realistic route to adoption runs through Congress. Because courts treat ratification timing as a political question, and because the Archivist will not certify without legal clearance, Congress would need to pass a resolution retroactively removing the ERA’s deadline. In the 119th Congress, H.J.Res. 80 was introduced in March 2025 to do that, but it was referred to the House Judiciary Committee and has not advanced.¹²

Even if that resolution passed, it would face immediate challenges: can Congress retroactively validate ratifications cast after an expired deadline, and do the five rescissions drop the count below 38? No Supreme Court case has answered either question. So the honest answer to whether the ERA was passed or ratified is that it was both — passed by Congress in 1972, ratified on paper by 38 states as of 2020 — and is still not part of the Constitution.

1
GovInfo. 86 Statutes at Large 1523 – Proposed Amendment to the Constitution of the United States
2
Congress.gov. The Proposed Equal Rights Amendment – Contemporary Ratification Issues
3
National Archives. Proposed March 22, 1972 – List of State Ratification Actions
4
National Archives. U.S. Constitution – Article V
5
Office of the Law Revision Counsel. 1 U.S. Code 106b – Amendments to Constitution
6
United States Department of Justice. Ratification of the Equal Rights Amendment
7
United States Department of Justice. Effect of 2020 OLC Opinion on Possible Congressional Action Regarding Ratification of the Equal Rights Amendment
8
National Archives. Statement on the Equal Rights Amendment Ratification Process
9
Justia. Dillon v Gloss, 256 US 368
10
Library of Congress. Coleman v Miller, 307 US 433
11
FindLaw. Illinois v Ferriero, DC Circuit 2023
12
Congress.gov. H.J.Res.80 – 119th Congress – Establishing the Ratification of the Equal Rights Amendment