BOISE, Idaho — It’s been four decades since the Equal Rights Amendment fell three states short of the 38 needed for ratification to amend the U.S. Constitution, but the amendment is back in the news.
In 2017, Nevada ratified the measure to guarantee equal rights for women. In 2018, Illinois did the same. And this month, a group formed in Utah to push for that state’s legislature to consider ratification.
The Idaho Press reports Idaho’s role in this saga is an interesting one. In 1972, Idaho was among the first wave of states to ratify the ERA, approving it overwhelmingly – 59-5 in the House and 31-4 in the Senate. In the House, the motion to adopt was made by Rep. Terry Crapo, R-Idaho Falls, the late older brother of current U.S. Sen. Mike Crapo.
But in 1977, the Idaho Legislature voted narrowly to rescind its ratification — one of five states to make that move. The resolution to rescind passed 44-26 in the House and squeaked through the Senate on a narrow 18-17 vote, amid multiple protests that such a move should require a two-thirds vote. The Senate Judiciary & Rules Committee, at that time chaired by Sen. Edith Miller Klein, had voted on that question and issued a ruling that two-thirds was required, but that was overridden on the Senate floor.
There are still-familiar names on both sides of that 1977 Senate vote. Among them: Then-Sen. Phil Batt voted against rescinding ratification; he went on to serve as governor in the 1990s. Then-Sen. Jim Risch voted in favor of rescinding ratification. He’s currently representing Idaho in the U.S. Senate.
So, what changed between 1972 and 1977? There aren’t a lot of clear explanations in the record. There was a change in the political party split in the Idaho Legislature between those two years. In 1972, Republicans held 57% of the seats and Democrats 43%. In 1977, Republicans held 65% and Democrats 35%. But those numbers didn’t shift as much as the massive change in support levels for the ERA.
Another possible explanation: During that time period, activist Phyllis Schlafly, who founded the Eagle Forum, launched a massive nationwide lobbying effort against ERA ratification. Schlafly, who died in 2016 at the age of 92, is widely credited by historians with halting the momentum to ratify the measure.
After the ratification effort failed, Schlafly proclaimed, “The career most women want is marriage, home, husband, and children,” according to Smithsonian Magazine and records from the Library of Congress. The Eagle Forum still maintains an active presence in Idaho.
Schlafly was from Illinois – the state that just ratified the ERA in 2017.
In Idaho, when the House State Affairs Committee considered introducing the rescinding resolution in 1977, then-Rep. Linden Bateman, R-Idaho Falls, voiced his support for the move, according to the committee minutes. “Laws involving relationships between the sexes is an area where reasonable men may differ, such as abortion and pornography laws,” the minutes say. “This should be left at the state level. For this reason he would favor rescinding the Equal Rights Amendment.”
The question of whether rescinding required a two-thirds vote ended up in federal court, as the Eagle Forum joined the Idaho Legislature and the state of Idaho to seek a court ruling. In a lengthy ruling that cited the founding fathers and the Federalist Papers, then-senior U.S. District Judge for Idaho Marion J. Callister ruled in 1982 that the ratification process has distinct roles for Congress and the states, and the ratification process was up to the states – so the states could decide individually what rules they applied, including whether or not a two-thirds vote was needed and whether or not they could rescind a previously approved ratification.
Callister also ruled that once Congress has set a deadline for ratification of a U.S. constitutional amendment, it can’t extend it. Congress had done so in the case of the ERA, extending the deadline for three extra years to 1982, but no additional states ratified the measure during the extension.
Callister’s decision was appealed to the U.S. Supreme Court, which took it up – but then disposed of it in a one-sentence ruling, finding that since the deadline had passed, the case was moot. That leaves open legal questions about ratifications that have yet to be resolved.
Adding to the legal picture is the saga of the 27th Amendment, which forbids Congress from granting itself a raise, or making any change in its pay, during a congressional session; such changes can take effect only after an election. That amendment was first proposed in 1789, but only six states had ratified it by 1792. A movement to bring it back up launched in the 1980s, and it was ratified and added to the Constitution in 1992. Congress hadn’t ever set a time limit for that one.
After Illinois ratified the ERA in 2017, the Chicago Tribune asked University of Chicago law professor Geoffrey Stone if the amendment was still eligible to be added to the Constitution. His response: There’s no “obvious right or wrong answer.”
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