    [Senate Hearing 118-30]
    [From the U.S. Government Publishing Office]

                                                             S. Hrg. 118-30

                          THE EQUAL RIGHTS AMENDMENT:
                    HOW CONGRESS CAN RECOGNIZE RATIFICATION
                   AND ENSHRINE EQUALITY IN OUR CONSTITUTION

    =======================================================================

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                        ONE HUNDRED EIGHTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                               FEBRUARY 28, 2023

                                   __________

                               Serial No. J-118-4

                                   __________

             Printed for the use of the Committee on the Judiciary

                     [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                            www.judiciary.senate.gov
                                www.govinfo.gov

                                   ______

                     U.S. GOVERNMENT PUBLISHING OFFICE

    52-251                    WASHINGTON : 2025

                           COMMITTEE ON THE JUDICIARY

                       RICHARD J. DURBIN, Illinois, Chair

    DIANNE FEINSTEIN, California         LINDSEY O. GRAHAM, South Carolina,
    SHELDON WHITEHOUSE, Rhode Island             Ranking Member
    AMY KLOBUCHAR, Minnesota             CHARLES E. GRASSLEY, Iowa
    CHRISTOPHER A. COONS, Delaware       JOHN CORNYN, Texas
    RICHARD BLUMENTHAL, Connecticut      MICHAEL S. LEE, Utah
    MAZIE K. HIRONO, Hawaii              TED CRUZ, Texas
    CORY A. BOOKER, New Jersey           JOSH HAWLEY, Missouri
    ALEX PADILLA, California             TOM COTTON, Arkansas
    JON OSSOFF, Georgia                  JOHN KENNEDY, Louisiana
    PETER WELCH, Vermont                 THOM TILLIS, North Carolina
                                         MARSHA BLACKBURN, Tennessee

                 Joseph Zogby, Chief Counsel and Staff Director
          Katherine Nikas, Republican Chief Counsel and Staff Director

                                C O N T E N T S

                                  ----------

                               OPENING STATEMENTS

                                                                       Page

    Durbin, Hon. Richard J...........................................     1
    Graham, Hon. Lindsey O...........................................     3
    Feinstein, Hon. Dianne, prepared statement.......................    43

                                   WITNESSES

    Cardin, Hon. Benjamin L., U.S. Senator from Maryland.............     3

    Murkowski, Hon. Lisa, U.S. Senator from Alaska...................     6

    Hyde-Smith, Hon. Cindy, U.S. Senator from Mississippi............     5

    Braceras, Jennifer C.............................................    11
        Prepared statement...........................................    45
        Questions submitted..........................................    50
        Letter submitted in lieu of responses........................    55

    Foley, Elizabeth Price...........................................    14
        Prepared statement...........................................    57
        Responses to written questions...............................    74

    Stratton, Hon. Juliana...........................................     9
        Prepared statement...........................................    96
        Responses to written questions...............................    98

    Sullivan, Kathleen M.............................................    16
        Prepared statement...........................................   100
        Responses to written questions...............................   105

    Williams, Thursday...............................................    12
        Prepared statement...........................................   110
        Responses to written questions...............................   113

                                    APPENDIX

    Items submitted for the record...................................    41

                          THE EQUAL RIGHTS AMENDMENT:
                    HOW CONGRESS CAN RECOGNIZE RATIFICATION
                   AND ENSHRINE EQUALITY IN OUR CONSTITUTION

                                  ----------

                           TUESDAY, FEBRUARY 28, 2023

                                  United States Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice at 10:01 a.m., in
    Room 106, Dirksen Senate Office Building, Hon. Richard J.
    Durbin, Chair of the Committee, presiding.
        Present: Senators Durbin [presiding], Whitehouse,
    Klobuchar, Blumenthal, Hirono, Booker, Padilla, Ossoff, Welch,
    Graham, Grassley, Cornyn, Lee, Cruz, Hawley, Cotton, and
    Kennedy.
        Also present: Senators Cardin, Hyde-Smith, and Murkowski.

              OPENING STATEMENT OF HON. RICHARD J. DURBIN,
               A U.S. SENATOR FROM THE STATE OF ILLINOIS

        Chair Durbin. This meeting of the Senate Judiciary
    Committee will come to order.
        [Gavel is tapped three times.]
        [Pause.]
        [Gavel is tapped three times.]
        Chair Durbin. This meeting of the Senate Judiciary
    Committee will come to order. Well, it was a long time ago,
    many years, I was a young lawyer on my first assignment, new
    graduate of Georgetown Law School. I returned home to my home
    State of Illinois where I was working in the Illinois State
    Senate for the Lieutenant Governor Paul Simon. At the time, the
    lawmakers in my State were considering the ratification of a
    constitutional amendment that was first introduced many years
    before, in 1923. It was called the Equal Rights Amendment.
        Well, here we are, a century after its first introduction,
    2023, and here I am nearly 50 years after I started that first
    assignment. It's time to get the job done. In fact, it's long
    overdue.
        Today, this Committee is holding a hearing on finally--
    finally, enshrining the Equal Rights Amendment into the
    Constitution. I want to start with a video----
        [Applause.]
        Chair Durbin. Thank you. I want to start with a video which
    gives us a little insight into the history of this issue.
        [Video is presented.]
        Chair Durbin. I apologize for the audio. We'll try to make
    that a little better the next time, but we didn't want anyone
    to miss any words. The principle of equal justice under the law
    is fundamental to who we are as a Nation. But unless that
    principle is protected in our Constitution, it is nothing more
    than words. For 100 years, Americans have been fighting to
    enshrine equality in our Constitution with the Equal Rights
    Amendment--100 years.
        In the half-century since Congress approved the ERA, 38
    States have ratified it. That's the exact number of States
    needed to certify the ERA as the Twenty-Eighth Amendment to the
    Constitution. So why the holdup? When Congress first approved
    the ERA in 1972, it imposed an arbitrary time limit on the
    ratification process. But that was more than 50 years ago. In
    the decades since, as I mentioned, the Amendment has crossed
    the 38-State threshold with Virginia becoming the most recent
    State to approve it in 2020. Think of it this way: If not for
    Congress standing in the way, the ERA would already be on the
    books. So it's time to clear the path for equality.
        The joint resolution we're considering today will repeal
    that arbitrary deadline in the preamble of this resolution once
    and for all. There is no room for uncertainty when it comes to
    protecting equal rights under the law. Sadly, that lesson was
    driven home last year by the Supreme Court's decision to
    overturn Roe v. Wade and--for the first time in history--to
    take away a constitutional right from every woman in America.
        For years, we've heard well-known arguments against the
    ERA. I remember the single-sex bathroom argument of many years
    ago. Some have argued that it's not necessary. Others have
    argued it's dangerous. Others have claimed that the ERA and the
    Fourteenth Amendment are redundant.
        The reality is that the Supreme Court, which at the time
    was made up entirely of male Justices, established a lower
    level of scrutiny for sex discrimination claims under the
    Fourteenth Amendment. The ERA would finally change this.
        When we have a conservative super majority on the Supreme
    Court who believe the meaning of the Fourteenth Amendment was
    set in stone when it was ratified at 1868, the ERA is far from
    redundant. When a sitting judge--Justice on the Supreme Court,
    Clarence Thomas, argues that the Court should reconsider
    constitutional protections for family planning and birth
    control, protections the Court recognized under the Fourteenth
    Amendment nearly 60 years ago, the ERA is far from redundant,
    far from unnecessary.
        So now, the question for Members of this Committee is
    straightforward. What kind of America do we want to leave our
    daughters and granddaughters? A country in which their
    fundamental rights are safe and secure? Or one in which the
    Constitution continues to fail to recognize fundamental
    equality on the basis of sex? As a father and a grandfather, I
    think the answer is obvious. Let's live up to the promise of
    equal justice under the law.
        Join us in supporting this resolution to revoke the
    deadline on the ERA's ratification. There is no time limit on
    equality. With that, I'll turn to the Ranking Member Lindsey
    Graham for his opening statement.

              OPENING STATEMENT OF HON. LINDSEY O. GRAHAM,
            A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA

        Senator Graham. Thank you, Mr. Chairman. Well, this is a
    hearing--this has a political agenda, which is okay. We're a
    political body. I have absolutely no problem talking about
    political things. Everybody's entitled to their causes.
    Everybody in America can push as hard as they like, but you got
    to look at the facts. So in 1972, the Congress, as you said,
    Mr. Chairman, by two-thirds vote, put in motion the
    ratification of the Equal Rights Amendment, as drafted in 1972,
    for a 7-year period.
        Apparently, during that time period, they fell 3 votes
    short of 38. And this is what Justice Ginsburg said: ``The ERA
    fell three States short of ratification. I hope someday it will
    be put back in the political hopper, starting over again,
    collecting the necessary number of States to ratify it.''
        So that's what she said. Now, there was an extension by
    majority of vote from 1979 to 1982, which you referred to, to
    give three more years to try to make up the shortfall. That
    didn't happen. But what did happen, five States who had
    previously ratified the Amendment rescinded it: Kentucky,
    Idaho, Nebraska, Tennessee, and South Dakota.
        So, from the time period in question, the support for the
    Amendment went backward. And this resolution before us is
    pretty simple. It says there will be no time limit to ratify
    the Equal Rights Amendment, but it also acknowledges that the
    Equal Rights Amendment is part of our Constitution. Well,
    that's what disturbs me the most because it never received 38
    States during the time period in question.
        In Dillon v. Gloss, the Supreme Court concluded that
    Congress has the power to set time limits on when the Amendment
    must be ratified. So it's gone to the Supreme Court. You lost
    there. It never got 38 votes before 1982. There's been an
    effort to 1982 to add to the vote total. You didn't mention
    that five States rescinded. So it's never gotten 38 votes if
    you count rescinding by 5 States. And I think it'll be pretty
    obvious why five States rescinded when you look at the
    potential effect of this Amendment.
        So we will have this debate, and I think we're going to
    have a vote on the floor. I think Senator Schumer promised a
    cloture vote. I think it will fall well short of the 60 votes
    necessary. And I'll be glad to talk about the reasons why, but
    thank you for the hearing.
        Chair Durbin. Thank you, Senator Graham. Today, we welcome
    three Members of Congress to testify before the Committee on
    the Equal Rights Amendment: Senator Ben Cardin of Maryland,
    Senator Lisa Murkowski of Alaska, and Senator Hyde-Smith of
    Mississippi. Senators Cardin and Murkowski have co-led the
    bipartisan Joint Resolution to affirm ratification of the ERA
    by removing the arbitrary deadline in its preamble. Senator
    Cardin, could you please proceed with your statement?

                 STATEMENT OF HON. BENJAMIN L. CARDIN,
               A U.S. SENATOR FROM THE STATE OF MARYLAND

        Senator Cardin. Well, first, thank you, Chairman Durbin.
    And I also want to thank Ranking Member Graham for the courtesy
    of being able to testify on this bill. And thank you for
    holding this hearing.
        I do want to acknowledge the extraordinary leadership of
    Senator Murkowski on this issue, maintaining the bipartisan
    support for the Equal Rights Amendment, which we saw from its
    inception. This is not about any one issue, but it's about
    putting in our Constitution a lens of equality in judging the
    actions of our States and laws of our country.
        Senate Joint Resolution 4 simply states--and you put this
    in the video, but I want to repeat it because it's pretty
    straightforward--``Equality of rights under the law shall not
    be denied or abridged by the United States or any State on the
    count of sex.'' Quite frankly, most Americans already believe
    this is in our Constitution, but Congress needs to complete the
    job and remove any ambiguity. Thirty-eight States have ratified
    the Amendment. That's the prerequisite number, three-quarters
    of the States of our Nation.
        Article V of the Constitution puts no time limits on the
    amount of time necessary for ratification. And I point out that
    the Twenty-Seventh Amendment of our Constitution was part of
    the original Bill of Rights proposed in 1791 and ultimately
    ratified in 1992--over 200 years later--dealing with the
    congressional pay issue. Congress established a time limit for
    ratification. We're unclear of the effect on that. Congress has
    the authority to remove that time limit.
        Senate Joint Resolution 4 does exactly that. The precedent
    for Congress to declare that a requisite number of States that
    ratified a constitutional amendment, as the House and Senate
    did this in 1992 by the resolution affirming the validity of
    the Twenty-Seventh Amendment.
        So this is not the first time we see in a resolution the
    acknowledgment that the prerequisite number of States have
    ratified the constitutional amendment. And as you point out,
    there should be no time limit on equality.
        It is needed to advance equality in the fields of workforce
    and pay, sexual harassment and violence, protection for the
    LGBTQ+ community, and so many other areas where this particular
    provision would provide a strict standard for the courts to
    apply in regards to laws and governmental policies. The Equal
    Rights Amendment is all about equality, the most fundamental of
    American values.
        One hundred years ago, women received the right to vote,
    and it's been a 100-year struggle to put the Equal Rights
    Amendment in the Constitution. America's strength is in its
    values. Mr. Chairman, I would point out that 85 percent of the
    countries in the world have some form of an Equal Rights
    Amendment in their constitution, and most of our States have
    some provision against discrimination based upon sex.
        The U.S. is the only industrial democracy that does not
    have a protection in their Constitution against discrimination
    based upon sex. The ERA is important for us to pay us in
    regards to our own protections, but also for America's
    leadership on our basic values. We got to take care of our work
    at home first.
        So on behalf of my wife, on behalf of my two
    granddaughters, and my daughter, and all Americans, let us do
    what's right to put equality in our Constitution to take a
    major step forward. Thank you, Mr. Chairman.
        [Applause.]
        Chair Durbin. Thank you, Senator Cardin. Senator Hyde-
    Smith.

                  STATEMENT OF HON. CINDY HYDE-SMITH,
              A U.S. SENATOR FROM THE STATE OF MISSISSIPPI

        Senator Hyde-Smith. Good morning, Chairman Durbin and
    Ranking Member Graham, and colleagues. I sure appreciate this
    opportunity very, very much, and I'm honored to be here this
    morning to discuss the Equal Rights Amendment, the
    unconstitutional and deeply misguided effort to resurrect a
    proposed constitutional amendment that expired over 40 years
    ago. The Equal Rights Amendment proposes to add very vague
    language to the U.S. Constitution to ensure equality between
    the sexes.
        However, the ERA won't do that. In fact, it would do the
    exact opposite and instead harm the very woman it intends to
    protect.
        Since 1972, the year that the Equal Rights Amendment was
    sent to the States for potential ratification, women's rights
    have advanced by leaps and bounds. Good things came out of
    this.
        Today, every State has elected women to represent them in
    Washington, and Congress has a record number of women. That
    includes me, the very first woman to represent Mississippi in
    Congress.
        Women are already protected from discrimination under the
    law through the Fourteenth Amendment to the Constitution, which
    ensures equal protection under the law.
        Women's rights are also protected by the Equal Pay Act of
    1963, the Title VII of the Civil Rights Act of 1964, the Title
    IX of the Education Amendment of 1972, the Pregnancy
    Discrimination Act of 1978, and more.
        The Equal Rights Amendment would only muddy the waters.
    Because of its vague language, it would work to undo many of
    these great achievements, and it does not allow for any
    distinction between men and women, even when it would make
    sense to do so based on biological differences.
        I'm particularly concerned about the privacy and the safety
    for women and girls that the Equal Rights Amendment would
    destroy: Locker rooms, prisons, hospital rooms, domestic
    violence shelters, and restrooms would allow men into areas
    where women should feel safe and protected and have privacy.
        Advocates of the ERA are also no longer shy about their
    goal to use ERA to impose unrestricted abortion on demand up to
    the moment of birth across the Nation and to enforce taxpayers
    to pay for this. Their apparent goal is to use ERA to overturn
    the Dobbs decision that returned the issue of abortion to the
    legislative process and instead re-empower unelected judges to
    impose a radical abortion policy that is in line with China and
    North Korea.
        Even the most modest pro-life protections, like waiting
    periods, parental involvement laws, and restrictions on late-
    term abortions or partial-birth abortions, when the babies
    really feel this pain, could be struck down by the ERA.
        Beyond the problematic content in the Amendment, all
    Senators should be offended of the blatant disrespect for the
    legislative process with this effort to resurrect this long-
    expired Amendment. The legitimate constitutional role of
    Congress in the constitutional amendment process ended when
    Congress submitted the Equal Rights Amendments to the States on
    March the 22nd, 1972.
        In Idaho v. Freeman, Federal District Judge Marion
    Callister held that Article V does not permit Congress to
    extend a ratification deadline, writing that once the proposal
    is made, Congress is not at liberty to change it. As Ruth Bader
    Ginsburg, a long proponent of the Equal Rights Amendment said
    in 2020: ``I would like to see a new beginning. I'd like it to
    start over.''
        Congress has no power to go back in time and resurrect an
    expired constitutional amendment like the ERA. Under Article V,
    however, Congress may again propose the same or modified
    language addressing the same subject and try to approve a new
    joint resolution with the required two-thirds votes in each
    House of Congress. The 1972 Equal Rights Amendment would harm
    the rights of women and weaken the United States Constitution.
    I call on my colleagues to reject this unconstitutional and
    misguided effort. Thank you, Mr. Chairman.
        [Applause.]
        Chair Durbin. Thank you, Senator Hyde-Smith. Senator
    Murkowski.

                   STATEMENT OF HON. LISA MURKOWSKI,
                A U.S. SENATOR FROM THE STATE OF ALASKA

        Senator Murkowski. Thank you, Chairman Durbin, to Ranking
    Member Graham, to Members of the Committee. It is good to be
    here today to testify about this ERA resolution, a resolution
    that Senator Cardin and I have introduced for three Congresses
    now. Three Congresses, we have introduced the same language to
    put before colleagues here. I want to thank Senator Cardin for
    his leadership in advocating for equal rights for women year
    over year over year.
        And I really am glad that we're able to get before the
    Committee here today. At least since I've been working on this
    issue, I think there's been a surprising lack of attention by
    the Senate on this. In fact, as I talk to so many people, they
    say, ``Well, we thought that the Equal Rights Amendment had
    already been adopted.'' They actually believe that we've taken
    care of.
        I'm going to speak quickly on our Resolution's contents and
    some of the process issues, but I'd like to spend most of my
    time talking about why the Resolution is important and why the
    Equal Rights Amendment is still needed.
        I think you, Mr. Chairman, have outlined much of the
    process here, and Senator Cardin has spoken to the very clear
    and, I think, very, very direct language that is included
    within the Equal Rights Amendment. It is not convoluted. It is
    not vague. It is very clear that what we're talking about is
    advocating equal rights for women under the law.
        S.J. Res. 4 removes the deadline for ratification by the
    States. It clears the hurdle for the Archivist to publish and
    certify the ERA. It also affirms that the ERA has been ratified
    by three-fourths of the States after Virginia became the 38th
    State to ratify the Amendment back in 2020.
        And I know that there is debate about the authority of
    Congress to remove that deadline. It's been noted by Senator
    Graham whether or not that the ERA has been ratified by the 38
    States given later rescission by five of them.
        What we are trying to do with this resolution, some may
    say, is a little novel, but what we're trying to say here is
    what has happened in the States should not die here in the
    Senate. The fact is there's no law, there's no Supreme Court
    precedent that says that our resolution is somehow
    unconstitutional or something that Congress cannot do.
        So, putting aside all that, I do look forward to what the
    Committee will hear in this next panel about these issues. But
    I would like to just give a few statistics in terms of why I
    think the Equal Rights Amendment is still needed, why it is not
    redundant.
        According to the 2020 Census, women are about half--50.5
    percent--of the U.S. population. Compare this to the makeup of
    the Senate, 25 percent of us are women. As Senator Hyde-Smith
    has noted, that's a record number. A record 128 women are
    serving in the House, but this is still only 29 percent of the
    Chamber's total. I don't think we're there yet. I'm not
    satisfied with that.
        This Committee--you've been very active in processing
    judicial nominations, so just look at the nominations for the
    Federal bench: 38 percent of active district court judges are
    women; 66 of 170 active circuit court judges are women. That's
    39 percent.
        So we're making some progress. We're making some progress,
    that's good. Is it good enough? It shouldn't be good enough.
        In the private sector, only about 10 percent of Fortune 500
    companies have women CEOs, and this is the first time in
    history a double-digit number has been reached.
        Notably and significantly, in 2021, women earned about 82
    cents for every dollar men earned, certainly less than that in
    many States. Peeling back the layers of the onion, the gender
    pay gap was even greater for full-time female managers, who
    earned an estimated 77 cents for every dollar earned by full-
    time male managers.
        Now, we know--we know that things have improved over the
    years, but we still have a long way to go when it comes to
    achieving equality for women. And I think that we need the
    Equal Rights Amendment to get there.
        I'm very proud of the fact that in Alaska, we ratified the
    ERA in 1972, the same year that it passed the House and the
    Senate and was signed by President Carter. A few months later,
    Alaskans amended the State constitution to prohibit
    discrimination based on sex.
        Mr. Chairman, women should have equal treatment to men
    under the law, and Congress should do all that it can to ensure
    that the ERA is finally made part of the Constitution. I think
    it's long overdue.
        Senator Graham has mentioned that he's looking forward to
    the debate here to have a discussion about the potential effect
    of this resolution. I would suggest to you that the potential
    effect of this resolution is to ensure equal treatment under
    the law for women in this country. Thank you. I thank the
    Committee.
        [Applause.]
        [Gavel is tapped twice.]
        Chair Durbin. It's a little late for me to bring this up,
    but I'm going to anyway----
        [Laughter.]
        Chair Durbin [continuing]. I ask those who are our guests
    here today and members of the audience to refrain from any type
    of interruption of the proceeding if they can, on both sides.
        I thank everybody who's here for attending, but we're going
    to try to keep this at a certain centrist level of this debate
    for fairness on both sides. Let me thank my colleagues for
    coming.
        Senator Cardin, Senator Hyde-Smith, Senator Murkowski, we
    know you have a busy schedule, but we think your contribution
    to this conversation on the Equal Rights Amendment is historic
    and important. Thank you for joining us.
        We're now going to bring the second panel to the Committee.
    We welcome five witnesses. I will introduce the Majority
    witnesses and turn to Ranking Member Graham to introduce the
    Minority witnesses.
        We have a slight change in the program. Our first witness
    is going to be Illinois Lieutenant Governor Juliana Stratton,
    who serves as my State's 48th Lieutenant Governor. She
    previously served as a member of the Illinois House of
    Representatives where she worked to ratify the ERA in Illinois.
    Lieutenant Governor Stratton is joining us remotely because,
    unfortunately, we learned this morning she tested positive for
    COVID-19. I'm grateful she's still able to participate.
        We also are joined by Thursday Williams. Ms. Williams is a
    board member of the ERA Coalition and a former cast member of a
    Broadway show, ``What the Constitution Means to Me.''
        Our final Majority witness is Kathleen Sullivan, currently
    serving as senior counsel at Quinn Emanuel and previously
    served as dean of the Stanford Law School. Let me turn to
    Ranking Member Graham to introduce his witnesses.
        Senator Graham. Thank you, Mr. Chairman. We have Ms.
    Elizabeth Foley. Professor Foley is a tenured professor and
    teaches constitutional law, civil procedure, and healthcare law
    at Florida International University College of Law. She went to
    University of Tennessee to get her J.D. and Harvard for her
    masters. She is of counsel at BakerHostetler, where her
    practice focuses on jurisdiction, separation of powers,
    appellate practice. She's a frequent media commentator, has
    published three books on constitutional law, has authored and
    co-authored numerous amicus briefs before the U.S. Supreme
    Court.
        She serves on the Florida Advisory Committee of the United
    States Commission on Civil Rights, on the editorial board of
    the Cato Supreme Court Review, and the research advisory board
    of the James Madison Institute. She is also a member of the
    American Health Law Association and the American Bar
    Association. She previously served as member of the Committee
    on Embryonic Stem Cell Guidelines at the Institute of Medicine,
    National Academy of Sciences, was Fulbright Scholar at the
    College of Law at the National University of Ireland.
        Ms. Jennifer Braceras is a lawyer, columnist, political
    analyst. She is a graduate of Harvard Law School. She was an
    editor on the Law Review at Harvard. She is director of the
    Independent Women's Law Center, a project of the Independent
    Woman's Forum. The organization defends free speech, due
    process, educational freedom, and the continued legal relevance
    of biological sex.
        Ms. Braceras is an expert on Title IX of the Education
    Amendment of 1972. She has also been widely published by
    numerous networks and previously taught courses on civil
    rights, constitutional law at Boston College Law School and
    Suffolk University Law School. She's a former member of the
    United States Commission on Civil Rights and former trustee of
    the University of Massachusetts. Thank you.
        Chair Durbin. Thank you very much, Senator Graham. Let me
    lay out the mechanics for the hearing. After I swear in the
    witnesses, each witness will have 5 minutes to provide an
    opening statement. And then, a round of questions--each Senator
    has 5 minutes to ask questions. And I ask all to try to remain
    within their allotted time.
        So I'd ask those who are physically present to approach the
    witness table and stay standing for just one moment while I
    administer the oath. And I hope Lieutenant Governor Stratton is
    remotely joining us and she will join in this oath-taking. If
    you please raise your right hand.
        [Witnesses are sworn in.]
        Chair Durbin. Let the record reflect that all of the
    witnesses have answered in the affirmative. And I'm going to
    first defer to Lieutenant Governor Stratton for her opening
    statement. Let's hope that this is working. Lieutenant
    Governor, are you with us?

    STATEMENT OF HON. JULIANA STRATTON, LIEUTENANT GOVERNOR, STATE
                   OF ILLINOIS, SPRINGFIELD, ILLINOIS

        Lieutenant Governor Stratton. Good morning. And thank you,
    Chairman Durbin, Ranking Member Graham, and the distinguished
    Members of the Senate Judiciary Committee for the opportunity
    to testify before you virtually today.
        My name is Juliana Stratton. I am the Lieutenant Governor
    of the great State of Illinois. I am the mother of four
    daughters, and I use she/her pronouns.
        I am honored to be here today on this final day of Black
    History Month and on the eve of Women's History Month to do my
    part in a fight that started long before me.
        I stand upon the shoulders of women like Sojourner Truth
    and Ida B. Wells, Fannie Lou Hamer, and so many others who
    paved the way for the rights of all women. They sacrificed so
    much to push us forward, and yet we still live in a country
    that does not guarantee we should be protected from
    discrimination in the Constitution. An explicit assertion that
    we are all equals is still missing despite the women lawmakers
    across the Nation who stood up to finish the work our
    Foremothers started.
        In May 2018, I was one of those women. As a State
    representative, I joined a bipartisan vote for Illinois to
    ratify the Equal Rights Amendment. I made it clear to my
    colleagues in the Illinois House that gender equality and
    racial equality are not a zero-sum game, that we are all lifted
    up when everyone's rights are protected. We live with the stark
    reality that despite being the most educated demographic in the
    United States, Black women are only paid 64 cents for every
    dollar paid to white men.
        There should be stronger remedies to make sure women, all
    women, are paid an equal wage based on their abilities and
    qualifications and without discrimination based on sex. These
    protections will be of particular significance to women of
    color who face more workplace discrimination than their white
    counterparts.
        And despite impressive recovery efforts, the COVID-19
    pandemic has deepened economic disparities that have already
    harmed women for generations. The recovery for jobs
    traditionally held by women have lagged woefully behind the
    jobs often worked by men.
        Also, women are twice as likely as men to work in low-
    paying occupations, and this rate is even higher for Black
    women and Latinas.
        On top of this, we are seeing the eroding of women's rights
    and their ability to determine what is best for their futures.
    Recent events have shown us all too well how easily decades of
    progress can be erased when our rights are not guaranteed by
    the Constitution.
        Every parent wants their child to have a better life. And
    that was certainly true for my late mother, Velma, who spent
    every day doing what she could to ensure doors of opportunity
    were open to me and her four children.
        And now, I have a responsibility to my daughters, Tyler,
    Cassidy, Ryan, and Mackenzie, to honor my mother's legacy and
    ensure they can go even farther on this journey toward equality
    and justice--not just for them, but for young women and girls
    everywhere who deserve nothing less.
        Make no mistake, should the ERA pass, it will not guarantee
    that women will be treated equally overnight. We all know, for
    example, that the struggle continues for racial justice and
    equal rights for Black people and other people of color under
    the Fourteenth Amendment. And women will also need to remain
    vigilant.
        We need a firm foundation for equality that is long
    overdue. Finishing this work is as important as ever to
    acknowledge the rights that women, who make up over half the
    population, so deserve.
        So I urge Congress when taking action to consider your
    mothers, your daughters, and the women in your districts. It's
    time to make real a vision 100 years in the making so that our
    daughters and our granddaughters and the next generation of
    women are seen as exactly who they are: equals. Thank you.
        [The prepared statement of Lieutenant Governor Stratton
    appears as a submission for the record.]
        Chair Durbin. Thank you, Lieutenant Governor. Our next
    witness, help me pronounce your name--Braceras? Correct? Ms.
    Jennifer Braceras, please proceed.
        Ms. Braceras. Thank you, Chairman Durbin----
        Chair Durbin. You need to turn your microphone on. Slide
    your finger over the red light. It should work. I hope it does.

       STATEMENT OF JENNIFER C. BRACERAS, DIRECTOR, INDEPENDENT
        WOMEN'S LAW CENTER, INDEPENDENT WOMEN'S FORUM, CONCORD,
                             MASSACHUSETTS

        Ms. Braceras. Yes. Okay. Thank you, Chairman Durbin,
    Ranking Member Graham, and distinguished Members of the
    Committee.
        On behalf of Independent Women's Law Center and as the
    mother of four children, including three daughters, I am here
    to warn you. The ERA is a Trojan horse. It promises equality,
    but hidden inside the empty rhetoric is a laundry list of
    policies that will harm women and girls. Back when the ERA was
    introduced in the House in 1971----
        [Disturbance occurs in the hearing room.]
        Chair Durbin. Can I ask the Capitol Police to enforce?
        [Disturbance continues in the hearing room.]
        [Gavel is tapped twice.]
        [Disturbance continues in the hearing room.]
        [Gavel is tapped.]
        Chair Durbin. Let's try to maintain order so we can get
    through this proceeding and have all points of view expressed.
        Ms. Braceras. The people who have been locked out of this
    process, frankly, are the 62 percent of American voters who
    either weren't born or were too young to vote when the ERA
    expired in 1979.
        But, as I was saying, when the ERA was introduced in the
    House in 1971, it was still lawful to deny women credit, to
    refuse to sell or rent housing to women, to sexually harass
    women at work and at school, and to bar them from certain
    schools or certain fields of study.
        Millions of Americans supported the ERA at that time as a
    solution to these problems. Frankly, I might have, too, had I
    been more than 3 years old. But 52 years later, I'm happy to
    say that sex discrimination and sexual harassment are illegal
    in the United States of America. And public policies that treat
    one sex less favorably than the other are already
    unconstitutional under the Equal Protection Clause.
        Today, my three daughters and my son are legally equal.
    Indeed, so much has changed since the 1970s that even the late
    Justice Ruth Bader Ginsburg believed that when it comes to the
    law, quote, ``there is no practical difference between what has
    evolved and the ERA.'' The ERA is therefore unnecessary in
    2023. But that is precisely why it is so dangerous.
        To begin with, the ERA does not define the word ``sex.'' In
    1971, there was no need to. We all knew that it meant
    biological sex.
        Today, ideologues are actively trying to redefine the term
    to include gender identity. And there can be no doubt that they
    will use the ERA to constitutionally mandate the ability of
    male prisoners to self-identify into women's facilities,
    taxpayer funding of puberty blockers for trans-identified
    teens, and the participation of biological males on women's
    sports teams.
        But even if the ERA did define the phrase sex consistent
    with biology, the Amendment would still jeopardize many single-
    sex spaces we take for granted.
        Layering the ERA on top of the Equal Protection Clause
    could suggest that it requires something more. And it might
    imply that it forbids public policies that ever distinguished
    between males and females. But males and females are not the
    same. We never will be. And our laws and public policies
    shouldn't treat us as if we're interchangeable.
        Do Members of this Committee really want to
    constitutionally forbid public schools from offering single-sex
    sports teams, sexual assault support groups, or even
    fraternities and sororities? Do you want to outlaw grants to
    female-owned businesses or grants that encourage women and
    girls in STEM?
        Because make no mistake, by applying the strictest
    constitutional scrutiny to sex-based programs, this is what the
    ERA will achieve. But it gets worse. The ERA has the potential
    to outlaw not only single-sex spaces, but all sex disparities,
    or so its proponents claim.
        But what if the disparities favor women? Women today earn
    the majority of bachelor's and master's degrees. Should State
    schools be forced to discriminate against women in order to
    achieve parity in all programs? Should the Government be
    required not only to draft women but to draft them and send
    them into combat in equal numbers as men? Shouldn't we at least
    let the State legislators who represent today's voters debate
    and vote on the merits of these policies before we force them
    on an unsuspecting public?
        The ERA would be devastating not only to women and girls,
    but also to religious liberty, threatening the tax-exempt
    status of religious groups that ordain only men, and prohibit
    Federal funding of religious organizations that counsel young
    people about biological sex differences.
        Americans could certainly choose to amend the Constitution
    to do any of these things, but at no point have 38 States
    agreed to an amendment that would do these things, and Congress
    cannot now dissolve the ERA's ratification deadline and claim
    that they have. Thank you.
        [The prepared statement of Ms. Braceras appears as a
    submission for the record.]
        Chair Durbin. Thank you, Ms. Braceras. Ms. Williams.

     STATEMENT OF THURSDAY WILLIAMS, COLLEGE STUDENT, FORMER CAST
       MEMBER OF ``WHAT THE CONSTITUTION MEANS TO ME,'' AND ERA
             COALITION BOARD MEMBER, HARTFORD, CONNECTICUT

        Ms. Williams. Good morning, Chairman Durbin, Ranking Member
    Graham, and Members of the Committee on the Judiciary.
        My name is Thursday Williams. I am currently a senior at
    Trinity College in Connecticut, and I serve on the board of the
    ERA Coalition. It is such an honor to be here today testifying
    on behalf of the Equal Rights Amendment. Thank you, Senator
    Durbin, for inviting me to share my story of why the Equal
    Rights Amendment is important to me, my peers, and the future
    generation.
        We are at a tipping point. The future of our democracy is
    at stake. The ERA holds the promise of a brighter future for us
    all.
        My family came to this country from Jamaica seeking the
    American dream of education and productivity, and my mission is
    to fulfill that dream. I proudly became a citizen, was accepted
    into a competitive college, took on leadership roles, became
    president of Trinity College Black Women's Organization, and
    engaged in spirited debates about rights and freedom.
        I fell in love with the United States Constitution in high
    school when I participated in constitutional debates through
    the legal outreach program. I argued multiple constitutional
    issues at NYU and Brooklyn Law School, including the Equal
    Protection Clause, the Fourth Amendment, and voting rights.
        What I love the most about the Constitution is how
    brilliantly it was designed to adapt to the changing needs of
    its people. Our Founding Fathers were visionaries. They
    understood that we needed a document that can endure throughout
    generations. That's when I knew this was the thing for me. I
    wanted to study law. I wanted to be one of the change makers.
        During my senior year of high school, I had the opportunity
    to perform in an award-winning Broadway play, ``What the
    Constitution Means to Me.'' Each night, I debated why we should
    keep the United States Constitution. There was a part in the
    play where I was talking about inequality, and I was thinking
    about the fact that not so long ago, I would have been
    considered property. Not so long ago, I wouldn't even have had
    the opportunity to stand on stage as a Black woman.
        In my closing argument during one performance, I stopped
    mid-show, and I just stood there crying my eyes out at the
    idea. Here I am defending a Constitution that at one point
    considered me three-fifths of a person, a Constitution that
    doesn't explicitly recognize women in it, a Constitution that
    in 2023 still doesn't explicitly state that I am equal to a
    man. For the first time, it became clear to me that this
    document was not written for me.
        Nevertheless, I will continue to defend this Constitution,
    and I will fight for my rightful place in it. This is why I am
    here today. I am here to defend an amendment that would finally
    guarantee me equality.
        After graduating in May, I will be starting my professional
    career at one of the most prestigious law firms in the country.
    As exciting as this should be, I proceed with caution because I
    am aware that although I am as capable as any man, the system
    is stacked against me.
        As a woman of color, I am more likely to be offered less
    than a man for the same work. I am more likely to be overlooked
    for raises and promotions. I will have to work twice as hard to
    get the same recognition as my male colleagues. And right now,
    I will have limited recourse to fight against it.
        This is why it is important for myself, my peers, and the
    future generation to have the Equal Rights Amendment. We
    deserve a Constitution that guarantees equality regardless of
    sex, a Constitution that we can use as a tool to fight
    discrimination. The Equal Rights Amendment has fulfilled all
    requirements to be added to the Constitution. Now, it is time
    for it to be recognized.
        If we continue to hold back more than half of our people
    from accessing equal opportunities, what does that say about us
    as a country? How can we be the beacon of freedom and democracy
    we claim to be if we do not declare that sex discrimination
    contradicts the American dream?
        The ERA will make the Constitution a more perfect document
    so we can have a more perfect Union. It is time we stop
    disappointing the future generation. Thank you.
        [The prepared statement of Ms. Williams appears as a
    submission for the record.]
        Chair Durbin. Thank you very much, Ms. Williams. Professor
    Foley.

     STATEMENT OF ELIZABETH PRICE FOLEY, PROFESSOR OF LAW, FLORIDA
        INTERNATIONAL UNIVERSITY COLLEGE OF LAW, MIAMI, FLORIDA

        Professor Foley. Thank you, Chairman Durbin, Ranking Member
    Graham, Members of the Committee, I'm grateful for the
    opportunity to testify about this important issue. And as a
    constitutional law professor and someone who practices
    constitutional law, I'm going to stick to the law.
        Okay, so let's talk about Article V of the Constitution.
    Article V of the Constitution gives Congress an express power
    to propose constitutional amendments, including a power to
    propose their mode of ratification, and Congress usually does
    this via a joint resolution.
        Once that joint resolution passes by two-thirds super
    majorities as required by Article V, Congress' role under the
    Constitution is done. It's exercised all the power that it has
    under Article V. And, in fact, it is the entire joint
    resolution, including its preamble, that is then submitted to
    the States for ratification. The joint resolution that you
    would pass in your Article V capacity is the proposal itself.
    So preambles are therefore not only a part of the Article V
    proposal, they are often an important part because they often
    contain the mode of ratification.
        So let me give you a quick example. When Congress passed
    the Bill of Rights proposal, the preamble specified that those
    Amendments, the first 10 Amendments to the Constitution, those
    Amendments' mode of ratification must be by State legislatures
    rather than State conventions. And the Twenty-Third through
    Twenty-Sixth Amendments, like the ERA, contain a 7-year
    ratification deadline in their preambles.
        So let's talk about the caselaw now. We've already
    mentioned Dillon v. Gloss. This is the most important Supreme
    Court case. The Court there unanimously held that a 7-year
    ratification deadline that was contained in the Eighteenth
    Amendment, the Prohibition Amendment, was judicially
    enforceable because it was an exercise of Congress' power to
    propose a mode of ratification under Article V.
        Now, ERA proponents prefer to kind of ignore Dillon, and
    they focus instead on a plurality opinion that was pinned by
    Justice Black in the 1939 decision in Coleman v. Miller. Now,
    Black's plurality in Coleman took the position, like the ERA
    proponents do now, that all ratification issues are
    nonjusticiable political questions that Congress alone can
    resolve, not the courts. But of course, we all know--most of us
    in the room are lawyers--the Black plurality is just that. It's
    a plurality. It got four votes.
        The other five Justices in Coleman, the majority of the
    Court, took a narrower view and held that Congress alone can
    decide if an amendment has been ratified in a timely fashion,
    and, importantly, it can do so by specifying a ratification
    deadline in its proposal. If there's no ratification period
    specified by Congress in its proposal, like with the Child
    Labor Amendment, which was what was at issue in Coleman, then
    the Court won't sort of superimpose one. The amendment will
    remain open indefinitely for ratification.
        And that's what happened, for example, with the Twenty-
    Seventh Amendment, which took 203 years to ratify and was
    ultimately ratified in 1992 after being one of James Madison's
    original 12 Articles proposed.
        [Disturbance occurs in the hearing room.]
        Chair Durbin. Please----
        [Gavel is tapped twice.]
        Chair Durbin [continuing]. Restore order.
        [Disturbance continues in the hearing room.]
        Chair Durbin. Disruption does not help.
        [Disturbance continues in the hearing room.]
        Chair Durbin. I'm sorry, Professor Foley. Please proceed.
        Professor Foley. Yes, no worries. All right. So if Congress
    does specify a ratification deadline in its proposal, like it
    did with the Eighteenth Amendment in Dillon and like it has
    done with the ERA, then the Court will in fact enforce that
    deadline. And either way, notice that Congress is the one in
    control. It can define the terms that it wants in its proposal
    that it initially submits to the States.
        Now, given the Supreme Court precedent, it should be
    unsurprising that we have two district court opinions that have
    both held that the ERA's ratification deadline is in fact
    enforceable.
        There was the Idaho v. Freeman case, of which I think
    someone mentioned earlier from 1981, and then, most recently,
    we have the Virginia v. Ferriero case from the D.C. District
    Court in 2021. Both of these courts have expressly rejected the
    argument that the ERA's ratification deadline is ineffective
    because it's in the preamble. In Ferriero, for example, Judge
    Contreras, who's an Obama appointee, held that the ERA's
    deadline was operative and not precatory.
        So, unlike the Constitution's preamble or preambles in
    ordinary statutes, the ERA's deadline doesn't use flowery
    language that doesn't have some sort of discernible standard.
    It's operative language.
        Moreover, and importantly, I think, Congress and the States
    have a very longstanding history of treating the mode of
    ratification that's contained in a preamble as binding. I gave
    you the previous example of the Bill of Rights preamble. This
    history is entitled to great weight and has been by courts.
        And finally, Ferriero's ratification analysis isn't dicta
    as some of the ERA proponents claim. Judge Contreras expressly
    stated twice in his opinion that his conclusions both on
    standing and ratification were what he called alternate
    holdings. And as lawyers in the room know, it's black letter
    law that alternate holdings are not dicta, and my written
    testimony cites numerous cases, including Supreme Court cases
    on this.
        If Congress can recognize ratification outside of
    proposal's specified deadline, then think about it: Congress
    will have a vast new power that is not contemplated under
    Article V or any other part of the Constitution. Congress could
    specify one mode of proposal in the actual proposal that it
    submits to the States, and then years or even centuries later,
    it could alter the mode of proposal by a simple majoritarian
    resolution. The constitutional amendment process would no
    longer be fixed and stable, but it would be a chaotic ever-
    moving target.
        This wouldn't be fair to the States, and it would
    effectively gut Article V's supermajoritarian process. So I
    would urge opposition to Senate Resolution 4 or any similar
    proposal. Thank you.
        [The prepared statement of Professor Foley appears as a
    submission for the record.]
        Chair Durbin. Thank you, Professor Foley. Ms. Sullivan.

       STATEMENT OF KATHLEEN M. SULLIVAN, SENIOR COUNSEL, QUINN
       EMANUEL URQUHART & SULLIVAN, LLP, LOS ANGELES, CALIFORNIA

        Ms. Sullivan. Thank you so much, Chairman Durbin, Ranking
    Member Graham, and distinguished Members of the Committee. It's
    a privilege to be before this Committee, which I first had as a
    privilege 37 years ago, which is a sobering thing to think
    about.
        I am delighted to have this opportunity to speak in support
    of Senate Joint Resolution 4 from the perspective of a
    constitutional scholar. And I'd like to respectfully disagree
    with my learned colleague, Professor Foley, on several points,
    but I'd like to really focus on three points today.
        First, I want to echo the points made so eloquently in the
    opening panel by Senators Cardin and Murkowski that this ERA is
    very much a bipartisan enterprise. And it has been since its
    inception 100 years ago. It was authored by Republican as well
    as Democratic authors. It was proposed in a bipartisan fashion,
    and it was ratified in bipartisan fashion. It was great
    Republican Congresswomen who reached across the aisle to
    Democratic Congresswomen to propose the ERA in 1972. And it's
    been bipartisan right through the ratifications by Illinois,
    Nevada, and Virginia.
        Second point, I would like to echo the Chairman's eloquent
    words about why the ERA is not redundant of existing equal
    protection jurisprudence as announced by the Court. It's not
    redundant. It's true, we've had--as all of my colleagues have
    said, we've had advances for women, very important advances,
    over the last 50 years. But they're not guaranteed in the
    Constitution. And under the current Supreme Court's approach to
    interpreting the Fourteenth Amendment and the other Civil War
    amendments, they look to history. And I can tell you that the
    history of the framing of the Fourteenth Amendment was not
    surrounded by the view that women were the equal of men.
        And don't take it from me. You can take it from the Supreme
    Court, which upheld in Bradwell against Illinois in 1872, a few
    short years after the Fourteenth Amendment; the power of
    Illinois to exclude women from the practice of law or the
    Supreme Court, in Minor v. Happersett, an 1874 decision in
    which the Supreme Court held women did not have an equal right
    to vote with men under either the Equal Protection or the
    Privileges or Immunities Clause of the Fourteenth Amendment.
        So if we look to 1868 to see what the Equal Protection
    Clause means, we're not going to find that it protected the
    equality of women to men. That's why the ERA is not redundant.
    That's why it should be enacted now. That's why it should be
    affirmed now.
        It's my belief that under Article V, Congress proposed that
    38 States ratified it. It is the law now, and the only thing
    standing in the way is the congressional deadline, which
    Congress set in 1972, altered in 1978, and has the power to
    change today.
        And that's what I want to end on my third point, and the
    most important point for today is to absolutely affirm, from a
    perspective of a constitutional scholar who's looked at Article
    V, that this body has the power to remove the deadline that was
    set in 1972 and extended in 1978.
        Now, why does the Congress have constitutional authority to
    eliminate the deadline? Well, to begin with, there's already a
    body of precedent in this body. This body decided it had the
    power to extend the deadline in 1978 and did so on the advice
    of the executive branch and Office of Legal Counsel memo at the
    time.
        But the most important reason why you have this power, and
    here I want to respectfully disagree with my friend, Professor
    Foley, is the prior deadline was in the preamble and not in the
    text.
        Now, over time, Congress has had a different approach to
    where it put these deadlines. It put a deadline in the text of
    the Eighteenth Amendment, the Prohibition Amendment, and it
    said it shall be inoperative unless adopted. And when it went
    out to the States for ratification, the States voted on that
    language. That was an expiration date.
        What this body said in 1972 for the ERA could not have been
    more different. It just said it shall be the Amendment, a part
    of the Constitution when ratified by the legislatures of three-
    fourths of the States within 7 years. That was advisory. It was
    hortatory. It was something that expressed the wish of the body
    then, but it can be changed.
        Now, here's the key point: When the Framers wanted to put
    time limits in the Constitution, they knew how to do it--6
    years for a term of office; 2 years for a term of office; 4
    years for a Presidential term of office; the Pocket Veto
    Clause, Article I, Section 7, ``If any Bill shall not be
    returned by the President within ten Days . . . after it shall
    have been presented to him, the Same shall be a Law.'' There is
    no time limit in Article V.
        And when this body adopted the time limit in the preamble
    by joint resolution and majority vote, it set the precedent for
    this body now today to decide by joint resolution through
    majority vote to change the deadline, to remove the deadline.
        And that is why Senate Joint Resolution Number 4 is proper,
    it's constitutional, it's within this body's power, and it will
    make clear and undisputable that the Equal Rights Amendment is
    now the Twenty-Eighth Amendment to the Constitution. Thank you.
        [The prepared statement of Ms. Sullivan appears as a
    submission for the record.]
        Chair Durbin. Thank you, Ms. Sullivan. We now will turn to
    questions, and each Member has 5 minutes.
        I'm going to try to ask two questions to clarify I think
    two important issues, and I'm going to start with you, Ms.
    Sullivan. And I want to go to this preamble question.
        Professor Foley noted Article V in her presentation to the
    Committee--I looked at Article V--there is no mention of the
    word ``preamble'' in Article V. I looked, of course, to the
    preamble to the Constitution, and as memorable as the words may
    be, I don't believe that they have driven decisions of the
    Court at any stage. The body of the Constitution does, over and
    over again. I can't recall. Maybe I'm just not aware of it.
        But the preamble has been a driving force to establish or
    to question a person's rights. And, of course, this
    Constitution in Article VII spells out exactly what
    ratification of the Constitution entails. And again, we have an
    important paragraph which does not include the word preamble at
    any stage.
        So my question to you initially is the argument that this
    is in a preamble and should be treated differently than other
    places you've stated already, but what is your comment on the
    preamble to the Constitution and the fact that it has not been
    a driving force?
        Ms. Sullivan. Preambles can have eloquent power. The
    preamble to the Constitution is perhaps the greatest preamble
    ever written. But preambles do not drive the interpretation of
    Article V joint resolutions, and they never did. And no court
    has ever declared it. And crucially, I want to focus on Dillon
    v. Gloss, which Senator Graham mentioned earlier, a 1921
    decision that, of course, did hold that the Eighteenth
    Amendment was not unconstitutional by virtue of the 7-year
    expiration date that was baked into it and ratified by the
    States. That crucially was not a preamble. It was the
    language--the 7-year deadline was an expiration date in the
    text.
        Now, why does that matter? It matters because the States
    vote on the text of the Amendment. When they ratify, the States
    are not ratifying the preamble. They are ratifying the text. So
    it's one thing to bake the deadline into the constitutional
    text and have the States vote on it, that might be binding, but
    a preamble is just advisory. It's your dialogue with the States
    saying, ``Get this done in 7 years, but maybe we'll revisit
    it.''
        And, if anything, the language of Coleman v. Miller, the
    1939 case, is supportive of the view that the Congress does
    have the power now to say we think the ERA is still vital, and
    we think we should remove the prior deadline.
        One Congress can't entrench itself into the future by
    binding a future Congress. One Congress can't prevent the
    States from exercising their ratification role by setting a
    binding deadline on the States enforceable by a court.
        So, just to--there's no constitutional decision by the
    Supreme Court standing in your way. Dillon v. Gloss is an
    apposite, because it was about a deadline in the text and not
    the preamble. And Coleman v. Miller is supportive of this
    Congress' role in deciding that the ERA still has a vital role
    to play today.
        Chair Durbin. So let me go to the second question that was
    raised by Professor Foley as well as by Senator Graham. Since
    Congress sent the resolution proposing inclusion of the ERA in
    the Constitution to the States in March of 1972, as we know, 38
    States have ratified the Amendment.
        However, five of those States have subsequently sought to
    rescind their ratification: Nebraska, 1973; Tennessee, 1974;
    Idaho, 1977; Kentucky, 1978; and South Dakota in 1979. North
    Dakota also recently voted to rescind its ratification in 2021.
        What is the legal significance, Ms. Sullivan, of these
    State legislatures voting to rescind their ratifications?
        Ms. Sullivan. It has no--a State rescission has no force
    under the text of Article V, which speaks of ratification and
    not of rescission. Number two, when two States tried to
    withdraw or rescind their ratification of the Fourteenth
    Amendment after it was proposed and adopted, this body rejected
    that. So there's precedent in this body for rejecting efforts
    to rescind. And to the extent this body has the power I
    described before, this body has the power to affirm that those
    rescissions are ineffective now just as they were for the
    Fourteenth Amendment. We wouldn't have had the Fourteenth
    Amendment today if we'd listened to rescissions.
        Chair Durbin. Thank you very much. Senator Graham.
        Senator Graham. Thank you, Mr. Chairman. Give me a little
    bit of latitude, if you don't mind. There's sort of some
    breaking news here. Apparently, the D.C. Circuit Court of
    Appeals just affirmed the holding, I think--it's Virginia v.
    Ferriero. Is that the name of it?
        Professor Foley. Yes, that's the name of it.
        Ms. Braceras. Illinois now.
        Senator Graham. Let me--give me a second to set the stage,
    Mr. Chairman, if you don't mind. So you had two States,
    basically, sue in district court, who ratified the ERA after
    the time period in question, compelling the National Archivist
    to enroll it in the Constitution. Is that generally what they
    were suing about, Ms. Foley?
        Professor Foley. Well, I don't know. I haven't read the
    opinion yet since----
        Senator Graham. No, Illinois and Nevada brought a lawsuit--
    --
        Professor Foley. Yes.
        Senator Graham [continuing]. In the district court----
        Professor Foley. Correct.
        Senator Graham [continuing]. Saying their ratification
    after 1982----
        Professor Foley. Was valid.
        Senator Graham [continuing]. Should count and get you to
    38, and the district court said no. Is that correct?
        Professor Foley. That's correct. They sought a writ of
    mandamus to force the U.S. Archivist to publish.
        Senator Graham. So the district court upheld the idea that
    we, the Congress, could set deadlines, which we did in this
    case.
        Professor Foley. Correct, citing Dillon.
        Senator Graham. Okay. So today, the D.C.'s Court of Appeals
    rejected the mandamus request and upheld the lower court. So
    that's where we're at, like, 11 or whatever time it is.
        The point I'm trying to make is that the reason we're not
    starting over and we're trying to turn the Constitution, in my
    opinion, upside down is because if you started this process
    today, you wouldn't come anywhere near two-thirds of the House
    and Senate to ratify this Amendment. And y'all all know that.
    Times have changed. Women's rights have been acknowledged. And
    why it would be so soundly rejected, this Amendment would lead
    to chaos.
        This Amendment would really punish women who are trying to
    play sports fairly. This Amendment would give the Court the
    ability to strike down every pro-life measure passed by the
    States. And if you don't believe me, this is what NARAL said--
    sent out a national alert: The ERA--what we're debating here
    today--would ``reinforce the constitutional right to
    abortion.'' It would ``require judges to strike down anti-
    abortion laws.'' Ms. Braceras, do you agree with their
    position?
        Ms. Braceras. Yes, I do.
        Senator Graham. Ms. Sullivan, do you agree with their
    position?
        Ms. Sullivan. I'm sorry.
        Senator Graham. That NARAL is saying if the ERA were
    passed, become a constitutional amendment, it would allow
    courts to strike down all restrictions on abortion that exists
    in the States today based on the ERA. Do you agree with that?
        Ms. Sullivan. Senator, I respectfully do not agree with
    that.
        Senator Graham. So you disagree with NARAL?
        Ms. Sullivan. I do, but on that point, on that prediction.
        Senator Graham. Okay. So----
        Ms. Sullivan [continuing]. I think that there would be a
    case-by-case determination that would balance the right to
    women's equality against other rights, which is how we practice
    constitutional law every day, Senator.
        Senator Graham. The ACLU wrote the House in March of 2021:
    ``The Equal Rights Amendment could provide an additional layer
    of protection against restrictions on abortion. It could be a
    tool against further erosion of reproductive rights.'' Do you
    agree with that, Ms. Braceras?
        Ms. Braceras. I certainly do. I mean, certainly, that's
    what the proponents of the ERA want to----
        Senator Graham. Okay, so let's just be honest. The people
    who are pushing politically to pass this are hanging their head
    on if it became law, every pro-life measure in this country
    would fall. You didn't say that in 1982. So if there is a law
    in a State, pick a State, that says a biological male cannot
    compete against females, would that law be subject to being
    struck down if the ERA is passed, Ms. Braceras?
        Ms. Braceras. Yes, it would. In fact, I would add that in
    my home State of Massachusetts where we have a State Equal
    Rights Amendment, schools are required to allow boys to compete
    in women's sports. And as a result, my daughter, who is now a
    Division I field hockey player in her senior year of high
    school--her team competed against at least three teams that had
    more than three men on them, as is their constitutional right
    in Massachusetts.
        Senator Graham. So if gender identity becomes the new
    standard on----
        Ms. Braceras. Oh, and this isn't gender identity. These
    were not trans-identified----
        Senator Graham. Right.
        Ms. Braceras [continuing]. Individuals. These were boys who
    identify as boys and were very good athletes in hockey and
    lacrosse and thought, wouldn't it be fun--or funny to go out
    and play field hockey against a bunch of girls, some of whom
    were future Division I athletes----
        Senator Graham. So I'll just wrap----
        Ms. Braceras [continuing]. And take their spots on varsity
    teams.
        Senator Graham. Yes. I'll just wrap this up, Mr. Chairman.
    The reason it wouldn't get two-thirds votes, most Americans
    don't like the outcome we're talking about here. Most Americans
    would be really upset to have a constitutional amendment that
    would do the things we're talking about--mandate abortion on
    demand up to the moment of birth. That's what it would do. And
    the people pushing it, that's what they want.
        And if you can't pull this rabbit-out-of-a-hat
    constitutional exercise and count the States, not count the
    ones that rescinded, count the ones that did after the time
    period, and you had to start over as Justice Ginsburg
    indicated, you would fail miserably because the times in which
    we live have changed.
        You wouldn't get anywhere near two-thirds vote in the
    Senate or the House because most Members of Congress, and I
    think a majority of Senators, do not want a constitutional
    amendment that requires abortion on demand up to the moment of
    birth.
        I think most Members----
        [Disturbance occurs in the hearing room.]
        Senator Graham [continuing]. Of the House and most Members
    of the Senate----
        [Disturbance continues in the hearing room.]
        Senator Graham [continuing]. Most Members of the House and
    most Members of the Senate would be offended by a law----
        [Disturbance continues in the hearing room.]
        Senator Graham [continuing]. A constitutional amendment,
    mandating that biological males can take over girls' sports.
    That's why you would fail so miserably.
        [Disturbance continues in the hearing room.]
        Senator Graham. Thank you. Have a good day.
        [Disturbance continues in the hearing room.]
        Senator Graham. Goodbye.
        Chair Durbin. So, if the Senator from South Carolina--bear
    with me here. I see this opinion that you've referenced in your
    statement. And as I understand it, the circuit court was
    affirming what the district court had decided, that the court
    itself was not going to overturn this decision, which puts the
    ball right smack dab back in Congress' court.
        Senator Graham. Yes, sir. That's right. And the point is
    that the courts have upheld the position of the district judge.
    And what I am saying, no, it doesn't put it back. The law of
    the land is that 7 years plus 3 years is the limit. And we're
    not buying into what you're selling here. No, we don't agree
    with that.
        Chair Durbin. And so, let me tell you the sequence of
    Members who will be called on based on the early bird rule.
    First, Senator Whitehouse, then Senator Grassley, Klobuchar,
    then Senator Lee, and the list goes on from there. So let's
    start with Senator Whitehouse.
        Senator Whitehouse. Thanks, Chairman. It's always
    interesting to me to figure out who's here in the room. So if
    you don't mind, Ms. Braceras, I'd like to ask you a few
    questions about the Independent Women's Law Center.
        Ms. Braceras. Sure.
        Senator Whitehouse. What is its relationship with the
    Independent Women's Forum and the Independent Women's Voice
    organizations?
        Ms. Braceras. We are the legal advocacy arm of the
    Independent Women's Forum and Independent Women's Voice.
        Senator Whitehouse. So they share support for the
    organization that you are here representing, together?
        Ms. Braceras. Correct. We're a part of Independent Women's
    Forum.
        Senator Whitehouse. I'm sorry. You're a part of Independent
    Women's Forum or you're a part of Independent Women's Voice?
        Ms. Braceras. We're a part of, well, both.
        Senator Whitehouse. Okay. Got it. What else do Independent
    Women's Forum and Independent Women's Voice share? Do they
    share officers?
        Ms. Braceras. I'd be happy to respond to those questions in
    writing. I don't really have the corporate structure in front
    of me right now.
        Senator Whitehouse. You don't know if they share officers
    or not?
        Ms. Braceras. We have overlapping employees, some, not all.
        Senator Whitehouse. Okay. So you share staff--some staff.
    Correct?
        Ms. Braceras. Correct.
        Senator Whitehouse. You're not sure whether you share
    officers or not, but you'll get that to me in writing. Correct?
        Ms. Braceras. If you'd like.
        Senator Whitehouse. I would like. Do you share donors?
        Ms. Braceras. I have no idea. I'm an employee. I'm not a
    part of the fundraising arm.
        Senator Whitehouse. Okay. Could we add that to the
    questions you'll get back to me in writing on, whether you
    share--the organizations share donors?
        Ms. Braceras. Sure. I'm quite sure they don't share
    donations. Individuals may donate to either Independent Women's
    Voice, Independent Women's Forum, or both. But no, they don't
    share the donations.
        Senator Whitehouse. But they may have the same donors.
    Correct?
        Ms. Braceras. It's possible.
        Senator Whitehouse. That's what you'll let me know.
    Correct?
        Ms. Braceras. Sure.
        Senator Whitehouse. And office space, do they share office
    space?
        Ms. Braceras. We're a virtual office. We have been since
    long before COVID, actually. Our staff almost is entirely of
    women. And for a variety of reasons, our organizations made the
    decision long ago to allow our staff to work from home.
        Senator Whitehouse. What distinctions would we find between
    the office arrangements for Independent Women's Voice and
    Independent Women's Forum?
        Ms. Braceras. Well, as I said, we're both virtual
    companies.
        Senator Whitehouse. So there's no difference between the
    office----
        Ms. Braceras. There is no office----
        Senator Whitehouse [continuing]. For either of them?
        Ms. Braceras [continuing]. There is no office for either of
    them.
        Senator Whitehouse. There's no physical office.
        Ms. Braceras. There's no physical office.
        Senator Whitehouse. You get together, you have meetings,
    you do Zooms, you do phone calls, all of that sort of thing
    that offices do. Correct?
        Ms. Braceras. Correct.
        Senator Whitehouse. And when you do that, is there a
    distinction between whether it's being done by Independent
    Women's Voice or Independent Women's Forum?
        Ms. Braceras. Yes, depending on the meeting. I mean, if IWF
    policy staff calls a meeting, then it's a meeting of the IWF
    policy staff.
        Senator Whitehouse. Okay. The history of your organization,
    as I understand it, is that Independent Women's Forum was led
    from 2000 to 2005 by Koch Industries' lobbyist Nancy
    Pfotenhauer. I don't know if I pronounced that name right, but
    is that true?
        Ms. Braceras. Nancy Pfotenhauer was president of IWF for a
    time period. I don't have the exact dates in front of me.
        Senator Whitehouse. And as I understand it, in 2003, she
    was also president of Americans for Prosperity, which is the
    Koch organization's primary political battleship, I would call
    it, entity.
        Ms. Braceras. I have no idea, Senator. And I'm pleased that
    you're so interested in the work of IWF. I hope that you'll ask
    the other panelists here today, and other panelists that come
    before you on other----
        Senator Whitehouse. Well, there are more mysteries around--
    --
        Ms. Braceras [continuing]. Similar questions.
        Senator Whitehouse [continuing]. I think there are more
    mysteries around yours than the others. So if you don't mind,
    I'll focus on that.
        Ms. Braceras. Oh there's no mystery about IWF.
        Senator Whitehouse. It originated as Women for Judge
    Thomas. Correct?
        Ms. Braceras. Yes, it did, founded by Ricky Silberman, who
    had been vice chair of the EEOC with Justice Thomas.
        Senator Whitehouse. And the Koch Industries' lobbyist ran
    both those organizations at the same time that she ran
    Americans for Prosperity for those years.
        Ms. Braceras. I have no idea what you're talking about----
        Senator Whitehouse. Okay.
        Ms. Braceras [continuing]. A Koch Industry lobbyist. I
    think you're--I have no knowledge of that.
        Senator Whitehouse. All right. You do take positions on
    judicial nominees. Do you not?
        Ms. Braceras. We do.
        Senator Whitehouse. Have you ever taken a position in favor
    of an appointee of a Democratic President?
        Ms. Braceras. Have I personally, or has the organization?
        Senator Whitehouse. Either organization or yourself, all
    three.
        Ms. Braceras. I'm sure that I have.
        Senator Whitehouse. Okay, let's put that aside then and
    look at the two organizations since that's where my question
    was going. Have they----
        Ms. Braceras. Well, the organizations--to be honest with
    you, the organizations have for the most part only weighed in
    on Supreme Court nominations. I think there were a----
        Senator Whitehouse. Have you ever supported a Democratic
    nominee--has either organization ever supported a Democratic
    nominee to the Supreme Court?
        Ms. Braceras. Not in my knowledge, no.
        Senator Whitehouse. Has the----
        Ms. Braceras [continuing]. We support nominees who support
    an originalist interpretation of the Constitution.
        Senator Whitehouse. Had the International--this will be my
    last question. Did the International--sorry--the Independent
    Women's Forum call the testimony here to this Committee by Dr.
    Christine Blasey Ford a publicity stunt?
        Ms. Braceras. Did the Independent Women's Forum say that?
        Senator Whitehouse. Yes.
        Ms. Braceras. I don't recall.
        Senator Whitehouse. Okay. My time's up.
        Chair Durbin. Senator Grassley.
        Senator Grassley. Ms. Braceras, Justice Ginsburg quote
    about the Equal Rights Amendment falling three States short of
    ramification has already been referred to, and she said it
    should start all over again. Given how rare it is for our
    history to amend the Constitution, do you agree with Justice
    Ginsburg that the amendment process should start over to ensure
    constitutionality and the confidence of the American people?
        Ms. Braceras. I do, and particularly because the
    circumstances have changed so much that the Amendment that is
    currently before you today is effectively a different amendment
    than the one that the States voted to approve--the 35 States
    voted to approve in the early 1970s. I would also argue that 62
    percent of the American voters, at least 62 percent, were not
    of voting age or were not yet born at the time that the States
    first considered this Amendment. The majority of American
    voters today are women. And today's women and their elected
    representatives in the States should have an opportunity to
    weigh in on whether or not this is necessary in 2023.
        Senator Grassley. Also, the Department of Justice issued an
    opinion that the Equal Rights Amendment has expired--expired
    was their word--and it is constitutionally required that the
    process start again. So can you talk about why this is the case
    and what effects it would have on the Amendment to continue as
    it stands? And I think you already spoke to that point a little
    bit, but if you want to expand on it, feel free to do that.
        Ms. Braceras. Yes, sir. When the Amendment fails to garner
    38 States in the time allotted by Congress, the Amendment died.
    And there's nothing to--there's effectively--you're talking
    about lifting a deadline on something that no longer exists. It
    died when it expired in 1979, I would argue. Some people argue
    it expired in 1982, but regardless, it is dead now and
    therefore cannot be resurrected from the dead.
        Senator Grassley. Yes. Professor Foley, the Supreme Court
    held that Congress could fix a reasonable time for ratification
    about an amendment. Congress fixed the time for this
    constitutional amendment, and, of course, this expired. Are you
    aware of any constitutional amendments that were ratified after
    the deadline for ratification of the amendment?
        Professor Foley. No, this is the only one.
        Senator Grassley. Also, do you explain to us whether
    Congress has the constitutional authority to pass a proposed
    amendment without a ratification deadline and then years later
    impose a ratification deadline before the threshold for State
    ratification has been satisfied?
        Professor Foley. No. As I said in my testimony, you know,
    the only power Congress has is under Article V, and that is to
    make a proposal that is submitted to the States. Once that
    proposal is submitted to the States, your job is done and
    you're locked in, and you can't change it by simple
    majoritarian resolutions in the future.
        So, for example, your mode of ratification that you choose
    can include not only a ratification deadline should you choose
    to impose one, but it can also include, and does generally
    include, the mode of ratification that's expressly mentioned in
    Article V, which is specifying whether the ratification should
    occur via State legislatures versus State conventions. And once
    you pick State conventions or State legislatures, you're also
    locked in just like you're locked in on the deadline. So
    whatever mode of ratification you pick is fixed.
        Senator Grassley. Yes. And my last question will be to you
    also, Professor Foley. What are the legal risks of disregarding
    the ratification deadline for this constitutional Amendment?
        Professor Foley. Well, I think the biggest problem of all
    is that if you sort of arrogate to yourself through a
    majoritarian resolution the idea that you have this sort of new
    power to change the mode of ratification, then that means the
    mode of ratification, including picking State legislatures
    versus State conventions, and any deadline is changeable at
    whim of any future Congress.
        And, you know, that's a moment of constitutional
    instability. It's deeply unfair to the States who always
    treated your modes of ratification as fixed and binding on
    them, and it basically guts the super majoritarian process of
    Article V. So I think it's a very dangerous precedent to set.
        Senator Grassley. Thank you.
        Chair Durbin. Thank you, Senator Grassley. And next is
    Senator Klobuchar.
        Senator Klobuchar. Well, thank you very much, Mr. Chairman.
    I have long supported the Equal Rights Amendment--I guess long
    is the right adjective to use here--and I've really appreciated
    all the testimony, especially Senator Murkowski's willingness
    to talk about the importance of bipartisan support for this.
    And I'd start with you, Lieutenant Governor Stratton. Could you
    talk about Illinois where just in 2018, Illinois ratified the
    ERA with bipartisan support, including from the House
    Republican leader, nine other Republicans, and how the ERA
    gathered that kind of bipartisan support in Illinois and still,
    in fact, has it nationally?
        Lieutenant Governor Stratton. Yes. Thank you so much,
    Senator, for that question. In 2018, as I served in the
    Illinois House, I was proud to not only vote for the
    ratification of the Equal Rights Amendment in Illinois but to
    do so alongside of my colleagues on both sides of the aisle. It
    was a bipartisan vote. And I think that one of the things that
    was so influential in that debate on the House floor was to
    talk about the implications not just for women today, but for
    women and girls of the next generation and the generations to
    come.
        I think I heard a statement in one of the previous speakers
    talking about what would happen if we needed to wait for every
    vote--wait until we had the next generation to be alive and
    able to make a vote. Well, certainly that is not something that
    I would have wanted as it relates to the Fourteenth Amendment
    as a Black woman, for someone to say, well, let's just wait
    until the next generation is alive and can vote.
        I'm grateful that there are votes that can be taken and
    amendments that can be made to our Constitution that enshrine
    rights, that demonstrate that we should be able to live free
    from discrimination----
        Senator Klobuchar. Thank you.
        Lieutenant Governor Stratton [continuing]. Right now in
    Illinois.
        Senator Klobuchar. Thank you. Okay, thanks. I just have a
    few more questions. We have our little 5 minutes here, so I
    guess I will go to you, Professor Sullivan.
        Last year, I joined Senators Blumenthal and Cortez Masto,
    as well as former Representative Maloney, who's here today,
    returned--thank you for being here--and Speier--in urging the
    Justice Department to withdraw an opinion issued under the
    previous administration seeking to stand in the way of the ERA
    being added to the Constitution.
        The Justice Department said that the prior opinion did not
    prevent the Congress, in fact, from taking action related to
    the ratification of the ERA. Quickly, do you agree with the
    Justice Department that there's nothing stopping Congress from
    taking action regarding the ERA?
        Ms. Sullivan. Yes.
        Senator Klobuchar. Okay. Well, that is nice and succinct.
    Thank you. The other question I wanted to ask you was that,
    given the Supreme Court's willingness to roll back fundamental
    rights, do you agree that it is more important than ever to
    enshrine formal protections in our Constitution guaranteeing
    women's equality?
        Ms. Sullivan. Yes, absolutely.
        Senator Klobuchar. Okay. And I think that's very important
    for people to know the moment that we are in time. While this
    has been going on, as I described it early on, for a long, long
    time, and women have been fighting for their rights, and it has
    been, in fact, ratified in so many States, it is all the more
    relevant today.
        I guess I would end with you, Ms. Williams. I know in high
    school you performed on Broadway in ``What the Constitution
    Means to Me.'' I actually got to personally see the play when
    it came to Minneapolis, and it was an amazing experience, and I
    know different high schoolers have performed as part of that
    play for many years.
        I want to give you the opportunity to tell the Committee
    what a guarantee of equality in the Constitution would mean to
    you.
        Ms. Williams. Yes. So, as I've previously mentioned in my
    testimony, in May, I will be starting a position as a
    litigation paralegal at one of the most prestigious firms. And
    I think when thinking about the experience of women, especially
    Black women, in this country, it is important for us to have
    tools to fight against discrimination, to have tools that will
    help us gain the equality we deserve.
        As I've said, women in this country are not offered as much
    as men. I will have to work as hard as my male colleagues. I
    may not receive the same respect as my male colleagues, and I
    will have limited recourse to fight against that, and I deserve
    that.
        As a Black woman, I experience this world very differently
    from each and every person on this Committee. And it is
    important that my perspective and my experience is in this
    Constitution, is in this document. So this is why we need the
    ERA.
        Senator Klobuchar. Very good. Thank you.
        Chair Durbin. Thanks, Senator Klobuchar. Senator Lee.
        Senator Lee. Thank you very much, Mr. Chairman, and thanks
    to all of you for being here. It's important to remember that
    when Congress proposed this Amendment in 1972, it didn't happen
    in a vacuum. When Congress went to propose it, it didn't have
    the votes that it needed. It added the 7-year limitation in
    order to secure the consensus necessary to achieve a two-thirds
    supermajority vote in both Houses.
        In other words, there were Members of Congress needed to
    vote for it who weren't willing to vote for it without that
    provision. So that's how they achieved the bargain. And we
    can't just ignore that. That shouldn't be ignored. You can't
    ignore it without doing violence to the process articulated in
    Article V of the Constitution for how to amend it. It's
    important anytime we amend the Constitution to make sure that
    we understand what the language means.
        We've seen through other amendments--one of many examples
    would be the Fourteenth Amendment. You can't always anticipate
    at the outset, when you adopt something like this, what
    ramifications it might have. And that's one of the many reasons
    it's important to get this right.
        All sorts of things have changed since 1972, and that's yet
    another prudential reason why it makes sense to put limitations
    in there. But to be very clear, there is a remedy for what
    you're talking about.
        When something expires, it's not like it can't ever be
    brought up again. It's just that it becomes a different
    proposal. That proposal has a shelf life. That shelf life has
    now passed. It has expired. Congress could propose another
    Equal Rights Amendment. It has yet to do so, and that matters.
    It matters in a way that's been recognized by the courts. The
    U.S. District Court for the District of Columbia ruled against
    the position that this can be extended. And the U.S. Court of
    Appeals for the D.C. Circuit today affirmed that ruling.
        So, this argument has lost at the district court. It has
    lost at the court of appeals. If it were to come before the
    United States Supreme Court, it will lose there, too. And so,
    that really is a significant thing.
        There are some policy considerations that also need to be
    taken into account. In the 1970s, my dad wrote a book. It was
    called ``The Lawyer Looks at the Equal Rights Amendment.'' And
    he asked a number of questions about the legislation. And one
    of the questions he asked, that he identified as the most
    important question, relates to what standard of review would be
    applied if the Equal Rights Amendment were to become law of the
    land. He asked, for example, is it going to be rational basis?
    Is it going to be strict scrutiny? Is it going to be
    intermediate scrutiny? Or what's it going to be? Or is it going
    to be a complete prohibition or a complete prohibition with
    qualifications?
        Ms. Braceras, does the text of the 1972 ERA make clear what
    standard of review courts would apply?
        Ms. Braceras. It does not, but the advocates of the ERA
    hope and will argue that it requires strict scrutiny.
        Senator Lee. Okay. And under strict scrutiny, if it were to
    apply, how would that be different? Because, currently,
    something like this where there is a Government-imposed
    distinction, a differentiation on the basis of sex, it is not
    strict scrutiny that applies. It's a form of intermediate
    scrutiny. Tell us why that matters. Why do you think that
    matters? What's the difference between switching from
    intermediate scrutiny to strict scrutiny?
        Ms. Braceras. So, strict scrutiny is the standard that
    courts use to analyze policies that deal with race, and it's
    the right standard to use with race because in the racial
    context, separate is unequal.
        That is not true in the context of sex. Separate is not
    always unequal for women and men when it comes to issues of
    privacy or places where biological differences matter, such as
    sports. And so, sex should not be treated the same as race
    under the Constitution. Our current intermediate scrutiny
    standard leaves space for courts to take into consideration
    biological differences where they matter. And in all other
    cases----
        Senator Lee. And strict scrutiny doesn't accommodate that
    in the same way.
        Ms. Braceras. No, it does not.
        Senator Lee. So what might this do for sex-segregated
    prisons, prisons for women? What might this do for Government-
    sponsored, Government-funded and operated shelters for abused
    women, for example, or public restrooms, locker rooms, athletic
    facilities, athletic competitions? What might strict scrutiny
    do to every one of those?
        Ms. Braceras. So, in the racial context, courts have been
    very clear that prisons cannot separate inmates on the basis of
    race, even where doing so would prevent certain gang violence
    in the prison, and that's the right standard. They should not
    be able to separate inmates on the basis of race.
        If you applied that same standard to men and women, that
    would mean that prisons could never--they would have to have
    coed prisons. You could never separate inmates on the basis of
    sex, and male and female prisoners would have to be housed
    together.
        Senator Lee. So protections in law, State, and Federal as
    they now exist, protections put in place for women reflecting
    biological differences between men and women--based on
    differences between men and women, would be at stake. They
    would be jeopardized. They would be threatened, and, in many
    cases, undone through judicial order.
        Ms. Braceras. That's correct.
        Senator Lee. Thank you, Mr. Chairman.
        Chair Durbin. Thank you, Senator Lee. Senator Blumenthal.
        Senator Blumenthal. Thanks, Mr. Chairman. Thank you for
    having this hearing. Thank you all of our witnesses, all of our
    audience for being here today, everybody who's watching. This
    issue is supremely important.
        Ms. Williams, I'm really proud that you're here today----
        Ms. Williams. Thank you.
        Senator Blumenthal [continuing]. And that you go to school
    at Trinity in my home State of Connecticut. I hope one day
    maybe it'll be your home State, too, and maybe you'll be
    sitting up here----
        Ms. Williams. Thank you.
        Senator Blumenthal [continuing]. In the chair that I have.
        I'm really proud of your testimony. You know, there are not
    too many people in this country who can say, quote, ``I fell in
    love with United States Constitution in high school.'' But
    thank you for your commitment to our Constitution and for your
    understanding about the brilliance of that Constitution. And
    you say it in your testimony, ``Our Founding Fathers''--I'm
    quoting--``Our Founding Fathers were visionaries. They
    understood that we needed a document that could endure
    throughout generations.''
        Ms. Williams. That's right.
        Senator Blumenthal. The fact is, generations have fought
    for the ERA. I've been proud to support the ERA for a long
    time. And now your generation is fighting for it. And whether
    it occurs in this Congress or not, I believe that your
    generation will finally accomplish the ERA if we don't. And I
    want to ask you what you would tell others in your generation
    about the importance of the ERA to them in their daily lives.
        Ms. Williams. So, as I've been sitting here listening to
    the testimonies and the questions, there are a lot of concerns
    about men performing in women's sports. And I am here as a
    young woman of color who is in her senior year of college.
    We're not worried about that. I am not worried about that. It's
    the truth. We're not.
        We have way more important issues that we need to be
    focusing on. And I will tell every young person, and I've been
    telling as many as I can, this is important for us. The ERA
    protects everyone, me, Black women, white women, white men. So
    it's important to all of us, and it's important now. It was
    important before and it will be important in the future.
        Senator Blumenthal. Now, you happen to be going to a school
    in Connecticut, which ratified----
        Ms. Williams. Yes.
        Senator Blumenthal [continuing]. The ERA overwhelmingly,
    and in 1974, in fact, adopted its own constitutional amendment
    by 77 percent--the equivalent of the ERA in our State. Is it
    good enough that Connecticut has done it? You live in
    Connecticut.
        Ms. Williams. So, it's not good enough. I actually just
    want to say that, as a young person, I've been concerned about
    the most recent activity of our Supreme Court, the fact that a
    lot of our rights are continuing to be rolled back, and I am
    now actually seeing the importance of having this Amendment
    because of that.
        So having a law in Connecticut is not enough. We need this
    Amendment. We need it so when things are being rolled back, we
    can use it to continue to fight against.
        Senator Blumenthal. And in the future, are you going to
    continue to work for the ERA?
        Ms. Williams. Absolutely, absolutely. I joined the ERA when
    I was I think 18, and I am now about to be 22. And I am even
    more determined than I've been before. I am even more for it
    now than ever.
        Senator Blumenthal. Thank you. Thanks, Mr. Chairman.
        Chair Durbin. Thank you. Senator Hirono.
        Senator Hirono. Mr. Chairman, you know, I'd like to say
    that, you know, yes, the times have changed, the times in which
    we live, where, sadly, violence--gun violence is rampant, where
    we see a rise in hate crimes against Asian Americans, Jews,
    LGBTQ persons, when FBI Director Wray says that domestic
    terrorism and white supremacy are major concerns. So I'd say
    yes, the times have changed. And the times--when we live in the
    times when sex discrimination is deemed okay, it's not okay.
    This is why I would say we need the Equal Rights Amendment.
        Ms. Sullivan, we've been hearing some scare stories about
    how our prisons have got to be--that men and women will be put
    together, but that is not the strict scrutiny test. The strict
    scrutiny test says the law must achieve a compelling State
    interest and be minorly tailored to that interest. So it's not
    as though the floodgates open and all of these terrible things
    that--to some, terrible things--will happen. Can you talk a
    little bit more about how the Equal Rights Amendment, once in
    the Constitution, will lead to strict scrutiny?
        Ms. Sullivan. Thank you very much, Senator. And I just want
    to reiterate the points so eloquently made earlier today by
    several Senators, including the Chairman, that the Equal Rights
    Amendment is about everyone. It's about your wives, your
    daughters, your granddaughters, your mothers, your aunts, your
    cousins. It's about all women.
        It's not about--and why would you be against an Equal
    Rights Amendment, which is part of the Constitution, as
    mentioned earlier, of all the other democracies with written
    constitutions? Why would we want to be allied with nations that
    don't have equality for women, that don't let girls go to
    school with boys, that don't let women appear outside with
    their hair uncovered? Why would we want to filibuster something
    that's about fundamental equal rights for all people?
        And Senator Lee, your father was a great constitutional
    lawyer who I admired so greatly, but Senator Hirono's
    absolutely right. This amendment is not about the level of
    scrutiny. This is about a fundamental guarantee, in the
    majestic words of the Constitution, of equality. And the courts
    will work it out later in spirited debates between lawyers in
    courts about what the standard of scrutiny should be.
        And this Amendment is not saying women and men have to be
    treated the same when they're different. It's saying all people
    have to be treated equally. And there is plenty of room in the
    majestic guarantee of equality to recognize times when women
    have to get protection because only women can get pregnant,
    that women have to have rectification of past discrimination.
    All those benefits for women that Senator Hyde-Smith was
    worried would disappear, I think that's a false picture, and
    this parade of horribles is very misleading.
        All this Amendment will do is make sure we can't have a
    court roll the clock back to 1868 or 1874 under the Equal
    Protection Clause by interpreting it historically. And as
    Senator Klobuchar said, guaranteeing equality in its broad,
    vague terms that will be worked out later in specific cases.
        So, Senator, no, it is scare tactics that this body should
    ignore to suggest that anything is fixed about how the ERA will
    be interpreted. I believe it will be interpreted in ways that
    empower women and girls into the future as Ms. Williams has so
    eloquently suggested it would do, but I don't think you should
    listen to these parade of horribles you've heard today.
        Senator Hirono. I agree with you. And by the way, we've
    heard Ruth Bader Ginsburg mention a number of times, but it was
    very clear that she thought that the ERA should be part of the
    Constitution. And whatever statement she was making was in the
    context of that she thought it should be in the Constitution.
    And here is a woman who spent her entire adult life fighting
    for equal rights for everyone.
        And in spite of that, she didn't think we had gotten it
    done, and she thought that the ERA should be part of our
    Constitution. So I think that the people who are continuing to
    toss her name out as though she supports the proposition that
    we should not be supporting this resolution are really off
    base.
        Also, Ms. Sullivan, can you explain very briefly how the
    ERA, by explicitly prohibiting against sex discrimination,
    would supplant the current patchwork of Federal, State, and
    local laws that currently address sex discrimination and
    provide a bedrock of a legal protection against it, and why
    it's important?
        Ms. Sullivan. Senator, the ERA would nationalize
    protections against sex discrimination that already exist in
    many of our statutes at the Federal level and many of our State
    constitutions. That's important because of federalism. We
    believe that people have the right to move between States in
    our country, and that means that your rights won't disappear
    when you cross a State border from Senator Blumenthal's
    Connecticut to another State. So, it simply guarantees for all,
    all women nationwide, what is already recognized in a patchwork
    of other laws. That's a good thing.
        Senator Hirono. Thank you. Thank you, Mr. Chairman.
        Senator Lee. Mr. Chairman.
        Chair Durbin. Senator Lee.
        Senator Lee. Since my name was invoked, I'd like 20 seconds
    to respond.
        Chair Durbin. Sure, 20 seconds to Senator Lee.
        Senator Lee. Professor Sullivan made the argument that we
    don't know whether this is about strict scrutiny. It's not a
    credible plausible argument to make. There is no reason to push
    for the Equal Rights Amendment unless you're trying to push it
    into strict scrutiny. That's the only difference between them.
    Strict in scrutiny, fatal in fact is the exact reason why
    distinctions in law on the basis of sex need to be evaluated
    under intermediate scrutiny.
        So if you say we don't know what standard will be used,
    that simply isn't true. And what we do know is that you'll push
    it into strict scrutiny. Strict scrutiny is not accommodating
    of the same things. It is strict in scrutiny, strict in theory,
    fatal in fact. So, this is not a theoretical argument. It is a
    virtual certainty that it will be strict scrutiny. Thanks.
        Chair Durbin. Senator was given the Senatorial 20 seconds.
        Senator Lee. Did I go over that?
        Chair Durbin. Slightly. Senator Welch.
        Senator Welch. Thank you very much. In 2019, we have this
    wonderful high school girls' soccer team, the Burlington High
    School soccer team. And they got national attention when they
    advocated and supported the U.S. Women's National Soccer Team's
    fight for equal pay. And last year, as you know, the U.S.
    Women's National Soccer Team finally won their long-running
    battle for equal pay. And all of us here, I think, agree that
    everyone's entitled to equal pay. I'm going to ask my first
    question for Thursday Williams. You went to Trinity College in
    Hartford?
        Ms. Williams. I am still there. I graduate in May.
        Senator Welch. Well, my daughter went there. So I sent her
    a picture of you, told her you were----
        [Laughter.]
        Senator Welch [continuing]. You know, a person was
    testifying here, but thank you for coming. That's fantastic.
    So, how can the ratification of the ERA help advocates win
    their fight to eliminate gender disparities in pay? And try to
    be brief so I can ask a few more questions.
        Ms. Williams. Okay. So in my testimony, I did mention that
    after graduating in May, I will be starting a litigation
    position----
        Senator Welch. Right.
        Ms. Williams [continuing]. At a very prestigious law firm.
    And I am aware that, as I've mentioned, the system is stacked
    against me. I'm aware that while right now I might be okay, in
    the future, there is a wealth disparity between a woman,
    especially a Black woman, and my male colleagues--or my male
    peer. And so, that is why this is important.
        Senator Welch. Thank you.
        Ms. Williams. Thank you.
        Senator Welch. Professor Sullivan, two things: One, just--I
    want you to comment on how recognizing the ERA strengthens
    enforcement of laws that are intended to ensure wage parity;
    and second, you might just follow up on Senator Lee's concern
    about having the Amendment push analysis into strict scrutiny
    because I'm not quite sure most of us know exactly what that
    has to do with the question of treating women equally and not
    being discriminated against on the basis of a gender.
        Ms. Sullivan. Well, thank you, Senator. To start with the
    second point, the ERA would simply make constitutional bedrock
    something we already recognize, which is women and men should
    not be treated unequally.
        Senator Welch. Mm-hmm.
        Ms. Sullivan. How that gets worked out when there are real
    differences between men and women is a question for the future.
    And this court--excuse me--the Senate need not specify to
    courts of the future how to work those questions out. I believe
    it will strengthen protections for women, all women, and it
    will not destroy any special protections women may receive now
    as it was suggested earlier.
        Senator Welch. Okay. Thank you. And for Lieutenant Governor
    Stratton, if the ERA is to be officially included in the
    Constitution, how would that impact your ability as Lieutenant
    Governor to ensure your continuing efforts for equal pay and
    for equal work?
        [Pause.]
        Senator Welch. I don't know if you heard me. Did you hear
    the question?
        Lieutenant Governor Stratton. Yes, I did. There's a little
    bit of a delay.
        Senator Welch. Okay.
        Lieutenant Governor Stratton. Thank you, Senator, for that
    question. I am proud to chair the Illinois Council on Women and
    Girls. And whether it's an issue of addressing equal pay or the
    pay gap or the wealth gap, whether it's an issue of access to
    healthcare, whether it's opportunities to help more women and
    girls enter the fields of science and math, or access quality
    healthcare, there are so many issues that would allow us with
    the foundation in our Constitution--enshrined in our
    Constitution that says that no one should be discriminated
    against on the basis of sex. It would give us that starting
    point, that grounding and baseline, to say, whatever we fight
    for, we know it's a value of our country that's enshrined in
    the Constitution, and now we can fight for rights for everyone
    to be equal.
        Senator Welch. Thank you very much. Mr. Chairman, I yield
    back.
        Chair Durbin. Thank you, Senator. Senator Cruz.
        Senator Cruz. Thank you, Mr. Chairman. Welcome to each of
    the witnesses. Many judges across the country follow a
    straightforward mode of constitutional interpretation that is
    looking to the original public meaning of constitutional
    language. Original public meaning posits that the object of
    interpretation is the constitutional or statutory text as
    reasonably understood by the American people at the time of the
    provision's enactment.
        The ERA resolution was passed out of Congress in 1972, and
    it had a clear and unambiguous deadline. Every person in this
    room understands what that deadline was. And in 1972, every
    person understood it as well. In this Congress, I've
    reintroduced legislation that did not pass in the preceding
    Congress. I'm quite confident Chairman Durbin has reintroduced
    legislation in this Congress that did not pass in the previous
    Congress. Why do we have to do that? Because there's a
    deadline.
        When the previous Congress expired, legislation you
    introduced in the previous Congress is no longer before the
    Congress. Now, it's not only those of us in the room who
    understood the deadline to mean what the deadline actually
    says.
        In 1978, Congress passed a resolution extending the
    ratification deadline until 1982. If the original deadline
    wasn't valid, there would have been no need to extend it to
    1982. And even judges who don't subscribe to originalism
    acknowledged the obvious reality.
        Justice Ruth Bader Ginsburg, a trailblazing advocate, said
    the following about the Equal Rights Amendment in 2019, quote,
    ``The ERA fell three States short of ratification. I hope
    someday it will be put back in the political hopper, starting
    over again, collecting the necessary number of States to ratify
    it.'' Professor Foley, what was the Corwin Amendment?
        Professor Foley. Corwin Amendment was an amendment that
    would have basically prohibited Congress from, or the States
    from--well, Congress specifically--from messing with slavery.
        Senator Cruz. And are there States that have attempted to
    rescind their earlier approval of the Corwin Amendment?
        Professor Foley. Yes, several.
        Senator Cruz. So Maryland in 2014, Illinois in 2022?
        Professor Foley. Mm-hmm.
        Senator Cruz. It would seem that legislators from those
    States, Illinois in particular, want to have their cake and eat
    it, too. On one hand, they want to say in the ERA context that
    a State cannot rescind its previous ratification, but at the
    same time, they want to be able to rescind their own
    ratification and conclude that doing so is perfectly
    permissible when it concerns a different topic, when it
    concerns slavery. Are those two positions consistent?
        Professor Foley. They don't seem consistent to me.
        Senator Cruz. Professor Foley, have other constitutional
    amendments contained deadlines?
        Professor Foley. Sure. Every constitutional amendment since
    the Eighteenth Amendment has contained a deadline except for
    the Nineteenth, which is gender voting rights.
        Senator Cruz. So eight of the last nine Amendments have had
    deadlines.
        Professor Foley. Yes.
        Senator Cruz. Is there Supreme Court precedent that deals
    with Congress' ability to include a deadline when it provides
    instructions for ratification?
        Professor Foley. Yes, absolutely. Dillon v. Gloss and
    Coleman v. Miller.
        Senator Cruz. Ms. Braceras, good to see you. Welcome.
        Ms. Braceras. Nice to see you, sir.
        Senator Cruz. You and I were classmates in law school. Good
    to see you. Let me ask you, when the original version of the
    ERA was introduced, what was the state of the law concerning
    discrimination against women? And what protections are there to
    protect women against discrimination today?
        Ms. Braceras. It was very different. When the House intro--
    it was introduced in the House first in 1971. And at that
    point, the Supreme Court had not yet decided Reid v. Reid,
    which is the famous case brought by the late Justice Ruth Bader
    Ginsburg, that established that the Equal Protection Clause of
    the Fourteenth Amendment prohibits government from treating
    similarly situated men and women differently. So that had not
    been decided when the ERA was first introduced. There were a
    lot of other things--laws that had not been passed to protect
    women. Pregnancy----
        Senator Cruz. So there are today vigorous protections
    against gender discrimination. And let me ask you----
        Ms. Braceras. Both constitutional and statutory.
        Senator Cruz. Since my time has expired, let me just ask
    you, what are some of the potential consequences for American
    society if the ERA were ratified now into the Constitution?
        Ms. Braceras. Well, I think one very important thing is
    that the meaning of the word sex was quite clear in 1971.
    Today, there are many people who are trying to argue that the
    word sex also includes gender identity. And so----
        Senator Cruz. Including to the Supreme Court in Bostock.
        Ms. Braceras. Right. So, if the ERA were to be passed
    today, it would open up a whole host of areas to private
    women's spaces to men who identify as women.
        Senator Cruz. Mr. Chairman, I would ask unanimous consent
    to enter into the record a letter from Concerned Women for
    America concerning this Amendment.
        Chair Durbin. Without objection.
        [The information appears as a submission for the record.]
        Senator Cruz. Thank you.
        Chair Durbin. Senator Ossoff.
        Senator Ossoff. Thank you, Mr. Chairman, and thank you to
    our panelists for your expertise, for lending your experience
    and counsel to the Committee. It was a century ago that the ERA
    was authored by Alice Paul and others. Nearly 50 years ago, my
    mother, who had just immigrated to the United States as a young
    woman, marched in support of the Equal Rights Amendment. Here
    we are a century after this was drafted, still not yet having
    made the Amendment to our Constitution that protects against
    discrimination on the basis of sex.
        I'd like to ask each of you, beginning with you, please,
    Ms. Sullivan, if you can concisely articulate for us what you
    believe the impact would be on U.S. law, on State policy, on
    the provision of services to Americans were this to be ratified
    and the Constitution thus amended.
        Ms. Sullivan. Thank you, Senator. It would guarantee that
    women cannot be treated as lesser than men, that girls cannot
    be treated as lesser than boys, that the privilege to attend
    school, to open businesses, to work, to prosper, to raise
    families, cannot be changed on the basis of sex by government.
    And that guarantee would be built into the Constitution rather
    than relying on shifting and politically appointed Justices of
    the Supreme Court to interpret.
        Senator Ossoff. It would enshrine in constitutional law not
    requiring reliance upon the latest jurisprudence or the
    disposition of Congress the fundamental principle that there
    should not be discrimination on the basis of sex. Correct?
        Ms. Sullivan. Exactly so, Senator.
        Senator Ossoff. Professor Foley, same question for you,
    please.
        Professor Foley. I think the most significant legal effect
    would be a shift from intermediate scrutiny to strict scrutiny.
    And I think, as Senator Lee pointed out, that would mean that
    more laws and distinctions between men and women would be ruled
    unconstitutional than they currently are. I think the most
    obvious example would be the distinction between men and women
    today on Selective Service registration and military draft. So,
    presumptively, those would be unconstitutional, that women
    would have to register and would be subject to the draft should
    this Amendment go into effect.
        Another possibility would be, right now under intermediate
    scrutiny, it is possible to make distinctions between men and
    women based on their gender, particularly when women are
    pregnant, and there is concern about exposing an unborn child
    to some hazard in the workplace. And I'm not sure--I would
    assume under strict scrutiny that that would not be possible
    anymore.
        Senator Ossoff. Thank you, Professor. Ms. Williams.
        Ms. Williams. So, as a young person, I believe while this
    Amendment will give me the tools to fight against workplace
    discrimination, workplace harassment, once it is passed, State
    laws would be passed and enforced to ensure that I am protected
    as a Black woman and that other Black women are also protected.
    So that's--yes.
        Senator Ossoff. Thank you, Ms. Williams. Ms. Braceras.
        Ms. Braceras. Well, sex discrimination and sexual
    harassment are already illegal in this country. And there are
    plenty of tools at the disposal of women who are victims to
    remedy those wrongs. That doesn't mean those things don't occur
    in our society today. They certainly do. But I'm happy that my
    three daughters live in a world where if they are discriminated
    against or harassed, they can bring a lawsuit to vindicate
    their rights. That is true today. That was not true completely
    in 1971 when this Amendment was introduced.
        Senator Ossoff. Thank you, Ms. Braceras.
        I appreciate all of your contributions. I'd reflect on the
    experience of my mother, immigrated to this country, supporting
    the ERA 50 years ago, on the founding principles enshrined in
    the text of our Constitution about the fundamental equality of
    human beings, at the time of their drafting referring
    exclusively to men.
        It strikes me with great respect for all of your views that
    it is a profound common sense that at this point in our
    Nation's development, we would enshrine in the most fundamental
    legal document that defines our country the basic principle,
    which I believe the overwhelming majority of Americans agree,
    that there should not be discrimination on the basis of sex and
    that we should not rely upon the shifting tides of
    jurisprudence or the political disposition of the Congress to
    make that fundamental value a core part of American law. Thank
    you, all, for your contributions. Thank you, Mr. Chairman.
        Chair Durbin. Thank you, Senator Ossoff. And thanks to this
    panel.
        I'd like to say a few words. Fifty years ago when I was a
    brand-new lawyer fighting for the passage of the Equal Rights
    Amendment in the Illinois State Senate, many people, including
    a woman named Phyllis Schlafly, who was from the State of
    Illinois, told us that what we thought were the issues were not
    really the issues. The real issue was the fate and future of
    public restrooms and whether or not you would have privacy in
    those restrooms based on gender.
        Now we hear that what's at stake really is not a
    constitutional right for women, but the fate of field hockey. I
    mean, I'm trying to keep up with the arguments here, but it's--
    --
        Ms. Braceras. It might not mean a lot to you, sir, but it
    means a lot to the girls who play.
        Chair Durbin. See, I believe you have a sincere belief in
    that. And I believe those girls would probably feel very
    strongly about the issue if they're field hockey players.
        Ms. Braceras. Particularly when they're displaced by males
    on the varsity team.
        Chair Durbin. But you see, that's what the argument comes
    down to, the fate of field hockey. And I think it is much more
    fundamental. We are talking about the role of women in the
    United States of America and where we stand.
        Ms. Williams, I heard your reference earlier to younger
    generations puzzled, shaking their head at all these gray-
    haired politicians who are struggling with the very basic
    question as to whether women's rights should be enshrined in
    the Constitution. And they're off on tangents that most young
    people just don't get.
        Ms. Williams. We don't, right.
        Chair Durbin. Am I putting words in your mouth?
        Ms. Williams. I agree. No, I agree. I definitely agree. The
    concern about the sports, that's not what we're worried about.
    I'm pretty sure there are way more important things for young
    people to be stressing about at the moment.
        Chair Durbin. And at the heart of this is the Dobbs
    decision, and other decisions, which relate to the right and
    role of women today. I think there has been a dramatic
    evolution in my lifetime of the role of women. And I'm sure
    glad that my daughters, and I assume my granddaughters, will
    benefit from that.
        But we can't stop. If we don't get down, Ms. Sullivan, to
    the basics of whether or not there's a constitutional
    guarantee--I think we have another Senator on the way, so I'll
    speak for a few minutes more, which is the Chairman's
    prerogative, I guess.
        If we don't get down to the fundamental basics of whether
    the law recognizes that, then I guess we have to ask ourselves,
    why is there so much fear of this on the other side? Why do
    they think this is so threatening in terms of families, the
    role of women? We hear about prisons and all these things, and
    yet, if you went to the basic question of should we maintain
    strict scrutiny when it comes to race, I haven't heard a single
    person here say, no, let's get rid of it.
        They should, I believe, apply that standard and honor that
    standard in the future. So why not the role of women as opposed
    to men?
        I'm glad Senator Padilla is here. I'm going to let him--
    I'll recognize him if he's prepared. Are you ready, Alex?
    Senator Padilla.
        Senator Padilla. Thank you, Mr. Chair. I appreciate the
    patience and understanding. I just returned from presiding over
    the Senate. There's a vote open. I'm sure you're aware. So
    we'll be making our way soon. But I wouldn't want to miss this
    opportunity to offer some remarks.
        I appreciate you and Ranking Member Graham for holding this
    important hearing. As we've discussed this morning, the ERA is
    and always has been about addressing sex-based inequality.
        For generations, women have had to fight for access to some
    of our most basic rights. And in my view, last summer's Dobbs
    opinion was significant. Across the country, Americans have
    made their opposition loud and clear. And as we work to uplift
    their voices, we must ensure that we remember that, what is at
    stake here: Rights once recognized by the Supreme Court and
    held dear by Americans may no longer be safe unless they are
    enshrined in the Constitution.
        I know some of our colleagues on the other side of the
    aisle talked about--what's the issue, what's the problem. It's
    already unlawful in America. It's already unlawful in certain
    States to do X, Y, and Z, but we know those rights can easily
    be compromised.
        So, with that in mind, a modernization of the law to
    recognize sex equality is needed, and the guarantee of equal
    rights for women is non-negotiable. As we analyze this issue, I
    look forward to working with my colleagues to end sex-based
    discrimination in our country, once and for all.
        Now, I do have a question if Lieutenant Governor Stratton
    is still with us. I know she was participating virtually.
    Before becoming Lieutenant Governor of Illinois, you served as
    a member of the Illinois House of Representatives and were a
    leading advocate for the bipartisan vote--bipartisan vote that
    ratified the ERA in Illinois.
        I want you to describe your perception of the future of
    equality in America and what the impact the ERA ratification
    could have on future generations.
        Lieutenant Governor Stratton. Thank you so much for that
    question, Senator. I think the most important thing that I want
    to emphasize is that the Equal Rights Amendment will remove
    ambiguity and will make it abundantly clear that no one should
    be discriminated against on the basis of their sex. We have
    made progress, and we've heard today, yes, there's been
    progress made.
        Of course, there's been progress because there's been a lot
    of women for many generations who have been fighting for this
    progress.
        But we have to make sure that we not only keep the progress
    moving forward but that we protect any attacks on the progress
    that has already been made. That is what we talked about on the
    floor in 2018, in Illinois in that bipartisan vote. And that's
    why the Equal Rights Amendment is so important to provide a
    constitutional safeguard to prevent any efforts to roll back
    the gains that we have made toward women's equality.
        Senator Padilla. Thank you. I just want to make sure I get
    in at least one more question with my time remaining.
    Enshrining an explicit guarantee of sex equality in the
    Constitution would provide the strongest protection against
    sex-based discrimination.
        Unfortunately, State and Federal legal protections are
    vulnerable to future attempts to undermine women's security.
    And we need to look no further than the recent bills being
    introduced across the country targeting women's access to
    abortion care.
        A question for Ms. Sullivan: In your opinion, are judicial
    remedies like the Equal Protection Clause and the Due Process
    Clause strong enough to protect a woman's right to abortion
    access and care?
        Ms. Sullivan. Senator, the Equal Rights Amendment will
    guarantee that women are equal to men. It will not determine
    for all time difficult debates in our country like debates over
    reproductive rights. Constitutional rights are always subject
    to a balance, and I have no illusion that the ERA will end
    those debates. But Senator, it will guarantee equality. It will
    guarantee equality that women can't be treated as lesser than
    men.
        And this body has the chance to, as the Lieutenant Governor
    said, remove ambiguity. Who would answer the question, ``Are
    you for or against equal rights for women? '' Elsewhere in the
    world, there are people who would say they're against it. In
    this country, no one would say, ``I'm against equal rights for
    women.''
        So why not remove ambiguity about that? Why not remove
    ambiguity? And ambiguity is all that led the D.C. Circuit to
    act today. They said it was not clear and undisputable that
    Congress can--that the congressional deadline is incapable of
    binding the States. Make it clear and indisputable. Pass Senate
    Joint Resolution Number 4 and remove any doubt about that
    deadline. Conservatives tend to like two things, Senator. They
    like looking at the text, Article V has no deadlines, and they
    normally like States' rights.
        So why not allow Illinois, Nevada, and Virginia to deliver
    us into the modern world where we, like other nations of the
    world, have equal rights for women, as you said, Senator,
    enshrined in our most foundational document?
        Senator Padilla [presiding]. Well, thank you very much.
    Wish we had time for many more questions and much more
    discussion.
        But on behalf of Chairman Durbin, I want to thank the
    witnesses appearing before the Committee today. Today's hearing
    makes clear that we have waited far too long for the
    Constitution to finally explicitly recognize that equal rights
    should not be denied on the basis of sex.
        Tomorrow marks the beginning of Women's History Month.
    There is no better time to move forward on this joint
    resolution: Remove the arbitrary deadline that has held
    equality at bay, and, once and for all, enshrine equality into
    the United States Constitution. And with that, this hearing is
    adjourned. Thank you.
        [Whereupon, at 12:13 p.m., the hearing was adjourned.]
        [Additional material submitted for the record follows.]

                                A P P E N D I X

    Submitted by Chair Durbin:

     #Faith4ERA Campaign, statement...................................   114

     American Constitution Society, statement.........................   124

     American Federation of Government Employees, AFL-CIO, letter.....   126

     American Federation of Labor-Congress of Industrial
        Organizations, statement......................................   127

     Angus, Anne, letter..............................................   128

     Benenati, Audrey, MHA, letter....................................   129

     Bush, Hon. Cori, a Representative in Congress from the State of
        Missouri, statement...........................................   130

     California Commission on the Status of Women and Girls, letter...   133

     Catholics for Choice, letter.....................................   135

     Dahlen, Eric R., letter..........................................   138

     Democrats Abroad, letter.........................................   139

     Denton, Davida, letter...........................................   141

     Equal Rights Amendment North Carolina Alliance, statement........   142

     Equal Rights Amendment Project at Columbia Law School, statement.   145

     Equality Now, statement..........................................   152

     ERA Coalition, statement.........................................   154

     Feminist Front, statement........................................   159

     Generation Ratify, statement.....................................   161

     Leading Women of Tomorrow, letter................................   163

     League of Women Voters of the United States, statement...........   166

     Legal Momentum, statement........................................   169

     Maryland National Organization for Women, statement..............   171

     Mid-Day Women's Alliance, statement..............................   173

     National Federation of Democratic Women, statement...............   174

     National Organization for Women, statement.......................   178

     National Women's Political Caucus, statement.....................   180

     Nourse, Victoria, statement......................................   181

     Ohio National Organization for Women, letter.....................   185

     Pyron, Anne, email correspondence................................   187

     South Carolina Equal Means ERA, statement........................   188

     Suk, Julie C., letter............................................   190

     Vote Mama, statement.............................................   196

     Women Lawyers on Guard Action Network, letter and attachment.....   197

     Wright, Danaya C., statement.....................................   215

     YWCA USA, letter.................................................   221

     Zonta USA Caucus, statement......................................   224

    Submitted by Ranking Member Graham:

     National Right to Life Committee, article........................   226

     National Right to Life Committee, report.........................   236

    Submitted by Senator Cruz:

     Concerned Women for America and Young Women for America, letter 1   257

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