State-Level ERAs

Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3: This Amendment shall take effect two years after the date of ratification.

In addition to the U.S. Constitution, every state in the nation must abide by its own, individual state constitution. Advocates for constitutional gender equality have therefore always had a parallel strategy to gain state constitutional equality, organizing to amend state-level constitutions to guarantee protection against sex discrimination while also working to ratify the federal ERA. Twenty-three states have adopted state constitutions or constitutional amendments that prohibit the denial of equal rights under the state law based on sex. States have interpreted these provisions in various ways. Most state courts interpreting state-level ERAs apply “strict scrutiny” to gender-based classifications in the law, a higher standard than currently applied at the federal level. That means the government must not only have a compelling reason to discriminate, but the law must be narrowly tailored to achieve its goal – making it more difficult for lawmakers to pass laws that discriminate based on sex. Other states, such as Pennsylvania, apply an even higher, absolute standard, prohibiting almost all gender-based classifications.

In November 2014, Oregon became the most recent state to win an equal rights amendment to its state constitution. Local activists collected more than 118,000 petition signatures to place an ERA on the state ballot, asking voters to determine directly whether the state should adopt an ERA. The referendum passed overwhelmingly with a supermajority vote, and students were a major driving force. In areas with college campuses, the ERA received a higher “yes” vote, capturing some 80 percent of the vote in those areas.