ERA, 28th Amendment Possibly Ratified, now part of constitution

[True Federalist (진정한 연방 주의자)]

The ball is now in the hands of the Archivist of the U.S.

Under 1 USC 102b he has the responsibility of announcing when Amendments have been ratified.

If he doesn't, I expect someone who would benefit from the amendment being in place to eventually sue for a writ of mandamus to compel such an announcement.

If he does, eventually someone who is adversely affected by the amendment will sue seeking to have his announcement overturned.

Either way, because of the two year time delay in the amendment taking effect once ratified, I find it extremely unlikely the courts will find that anyone has standing to sue until January 15, 2022, the earliest date it could possibly come into effect.

The difficulty will be in finding someone with standing. Already most Federal and State laws are gender neutral. Because of the 19th Century Civil Rights Cases, it's clear that passage of the amendment, if it is deemed to have happened, won't be considered to affect private actions in any way.

(The CRA of 1964 is deemed a use of Congress' power under the Commerce Clause.)

[UncleSam]

I mean if laws passed a long time ago that die can be brought back up that opens up a huge can of worms that no one wants to deal with.

The ERA should just be taken up with the states on an honest basis, and the language amended to satisfy abortion opponents if need be. The basis of the amendment is pretty clear and can stand some minor narrowing to make it palatable to conservatives.

[100% pro-life no matter what]

I mean if laws passed a long time ago that die can be brought back up that opens up a huge can of worms that no one wants to deal with.

The ERA should just be taken up with the states on an honest basis, and the language amended to satisfy abortion opponents if need be. The basis of the amendment is pretty clear and can stand some minor narrowing to make it palatable to conservatives.

Personally, I think that most of what it would do is already in the Constitution or enshrined in federal law.  With that said, I would have no problem with this becoming part of the Constitution with two modifications/clarifications:

-Explicitly saying that this amendment is silent on abortion (or ideally saying that there is no right to abortion in the Constitution)
-Saying that this is based on biological sex, not gender identity

I think both of those already would be the correct interpretation of this proposed amendment, but I could see activist courts twisting it.  As for the legality of the amendment itself, I think it is pretty clear that Congress put a deadline on passing the amendment, requiring it to start from scratch.

[True Federalist (진정한 연방 주의자)]

There are numerous potential challenges to the purported passage of the amendment. Since SCOTUS typically tries to resolve the fewest possible issues, I suspect that the eventual decision will be to affirm NOW vs. Idaho and rule that since Congress has not attempted to further extend the ratification deadline, the issue is still moot and that the amendment has not been adopted. It will be silent on what would be the effect if Congress were to attempt a further extension of the deadline, or whether such an extension requires two-thirds of each house.

[dead0man]

can someone explain how life would be different if it were to pass?  What rights are not equal in 2020?  (except divorce, but I'm guessing the people that most want this to pass don't want to see any equal rights in divorce law)

[Skill and Chance]

can someone explain how life would be different if it were to pass?  What rights are not equal in 2020?

I think there is some fear of a deeply conservative SCOTUS eventually gutting some of the existing 14th Amendment precedents.  There is also the situation where NM adopted ERA language in its state constitution and then the NM state supreme court used that language to strike down a state law against Medicaid funding of abortion, with the implication that the ERA language prevents the state from enacting any significant restrictions on abortion.

   

[MarkD]

can someone explain how life would be different if it were to pass?  What rights are not equal in 2020?

I think there is some fear of a deeply conservative SCOTUS eventually gutting some of the existing 14th Amendment precedents.  There is also the situation where NM adopted ERA language in its state constitution and then the NM state supreme court used that language to strike down a state law against Medicaid funding of abortion, with the implication that the ERA language prevents the state from enacting any significant restrictions on abortion.

   

Well that would be an interesting turn in jurisprudence, to base abortion rights law on the ERA when, after all these years, abortion rights law had always been inferred from the Due Process Clause of the 14th Amendment, not the Equal Protection Clause of the 14th. On the other hand, the Justices seem to treat those two clauses as if they are both little Rohrshach tests anyway, and perhaps it just doesn't matter from which of the clauses the Court infers abortion rights.

To answer deadoman, I don't even think there is any significant difference in divorce laws between how the sexes are treated. Not according to SCOTUS precedents. The Court took care of one of the aspects of divorce inequality in Orr v. Orr, 1979, when it struck down a law that provided men with no alimony pay if they divorced a wife who was making more than the husband. See here. As it says in that article, the Court applies "intermediate scrutiny" to all gender discrimination cases, and perhaps proponents of the ERA want the courts to always apply "strict scrutiny" from now on instead. That way, even the gender discrimination in the example of the draft will eventually get struck down. See Rostker v. Goldberg. The draft is still one of the examples of sex inequality in US law, so far as I know.

[Skill and Chance]

can someone explain how life would be different if it were to pass?  What rights are not equal in 2020?

I think there is some fear of a deeply conservative SCOTUS eventually gutting some of the existing 14th Amendment precedents.  There is also the situation where NM adopted ERA language in its state constitution and then the NM state supreme court used that language to strike down a state law against Medicaid funding of abortion, with the implication that the ERA language prevents the state from enacting any significant restrictions on abortion.

   

Well that would be an interesting turn in jurisprudence, to base abortion rights law on the ERA when, after all these years, abortion rights law had always been inferred from the Due Process Clause of the 14th Amendment, not the Equal Protection Clause of the 14th. On the other hand, the Justices seem to treat those two clauses as if they are both little Rohrshach tests anyway, and perhaps it just doesn't matter from which of the clauses the Court infers abortion rights.

To answer deadoman, I don't even think there is any significant difference in divorce laws between how the sexes are treated. Not according to SCOTUS precedents. The Court took care of one of the aspects of divorce inequality in Orr v. Orr, 1979, when it struck down a law that provided men with no alimony pay if they divorced a wife who was making more than the husband. See here. As it says in that article, the Court applies "intermediate scrutiny" to all gender discrimination cases, and perhaps proponents of the ERA want the courts to always apply "strict scrutiny" from now on instead. That way, even the gender discrimination in the example of the draft will eventually get struck down. See Rostker v. Goldberg. The draft is still one of the examples of sex inequality in US law, so far as I know.

Interestingly, Ginsburg stated early in her career that she would have preferred to strike down abortion bans as unconstitutional sex discrimination vs. what became the actual Roe/Casey due process rationale.

A semi-plausible turn of events: Trump is reelected and gets to replace Ginsburg and Breyer.  A highly conservative mid-2020's SCOTUS then strikes down Roe/Casey.  Then coalitions substantially change to give the left a long term advantage in controlling the Senate.  A left-leaning SCOTUS then returns to the issue circa 2045 and finds a right to abortion in the ERA or in the 14th Amendment Equal Protection clause without touching the overturned 20th century due process precedents. 

Also, there is a long history of US law evolving in such a way that a previously proposed amendment is no longer necessary.  For example, the whole 18th and 21st Amendment saga of Prohibition would be unnecessary today as banning/heavily regulating alcohol sales (and repealing such a ban) could all be done through normal legislation as an exercise of congress's commerce powers.  The same thing happened with the Child Labor Amendment.  And a SCOTUS ruling using the 14th Amendment equal protection clause that long predated the 24th Amendment to strike down an even broader range of poll taxes followed just 2 years after the 24th Amendment was adopted. 

 

[MarkD]

snip

Also, there is a long history of US law evolving in such a way that a previously proposed amendment is no longer necessary.  For example, the whole 18th and 21st Amendment saga of Prohibition would be unnecessary today as banning/heavily regulating alcohol sales (and repealing such a ban) could all be done through normal legislation as an exercise of congress's commerce powers.  The same thing happened with the Child Labor Amendment.  And a SCOTUS ruling using the 14th Amendment equal protection clause that long predated the 24th Amendment to strike down an even broader range of poll taxes followed just 2 years after the 24th Amendment was adopted.

Ugh. I am very much familiar with Harper v. Virginia State Board of Elections. I detest that opinion. And let me be clear: I am not saying that I like poll taxes and that I would detest any decision to strike them down. But the Court had once voted unanimously to uphold poll taxes (Breedlove v. Suttles, 1937) and that decision was supported by some of the greatest legal minds the Court has ever had (Hughes, Stone, Cardozo, Brandeis, Black). Then the Court unnecessarily overturns the precedent and does so with an awful opinion written by Justice William O. Douglas, one of the Court's worst judicial activists ever.

Poll taxes had previously been upheld because there was no evidence that anyone was treated any worse than anyone else by such taxes. The Harper opinion does not contain one word explaining who was being treated worse than whom else. Here is the paragraph which states that the precedent was going to be overturned:

It is argued that a State may exact fees from citizens for many different kinds of licenses; that, if it can demand from all an equal fee for a driver's license, it can demand from all an equal poll tax for voting. But we must remember that the interest of the State, when it comes to voting, is limited to the power to fix qualifications. Wealth, like race, creed, or color, is not germane to one's ability to participate intelligently in the electoral process. Lines drawn on the basis of wealth or property, like those of race (Korematsu v. United States, 323 U. S. 214, 323 U. S. 216), are traditionally disfavored. See Edwards v. California, 314 U. S. 160, 314 U. S. 184-185 (Jackson, J., concurring); Griffin v. Illinois, 351 U. S. 12; Douglas v. California, 372 U. S. 353. To introduce wealth or payment of a fee as a measure of a voter's qualifications is to introduce a capricious or irrelevant factor. The degree of the discrimination is irrelevant. In this context -- that is, as a condition of obtaining a ballot -- the requirement of fee paying causes an "invidious" discrimination (Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541) that runs afoul of the Equal Protection Clause. Levy "by the poll," as stated in Breedlove v. Suttles, is an old familiar form of taxation, and we say nothing to impair its validity so long as it is not made a condition to the exercise of the franchise. Breedlove v. Suttles sanctioned its use as "a prerequisite of voting." To that extent the Breedlove case is overruled.

So in the name of a tradition, we hereby overturn our precedent? Gotcha.

It seems to have not occurred to Justice Douglas that the state's only interest when it coms to issuing driver's licenses is also whether or not a driver is qualified to drive, and the ability to pay the license fee or not is just as capricious and irrelevant to whether they are qualified to drive. Using Justice Douglas's "reasoning" in that paragraph, it would not surprise me if Justice Douglas did come to the conclusion that expecting all prospective drivers to pay a fee to obtain a driver's license is unconstitutional "discrimination based on wealth," (no matter what the other members of the Harper majority may have to say about that).

That's not the only awful paragraph in Harper. You talked about how the law "evolves" sometimes. Douglas did the same thing. (I positively HATE what I am about to quote.)

We agree, of course, with Mr. Justice Holmes that the Due Process Clause of the Fourteenth Amendment "does not enact Mr. Herbert Spencer's Social Statics" (Lochner v. New York, 198 U. S. 45, 198 U. S. 75). Likewise, the Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights. ... Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.

Yeah, that's "evolution" for ya. The "notions" of what the 14th Amendment protects can and will constantly change. Yippee. And there was much rejoicing; yay. I suspect that Justice Holmes would have wanted to slap Justice Douglas silly for taking his famous quip about Herbert Spencer out of context like that and using the quote to justify a line of thinking that would make Holmes's stomach churn. Holmes had said what he did in order to address what the 14th Amendment was not intended to mean. Douglas twists the statement in order to justify an argument that the Court has freedom to transcend what the 14th Amendment was intended to mean. Dissenting Justice Black had an appropriately angry reaction to the above paragraph.

The Court's justification for consulting its own notions, rather than following the original meaning of the Constitution, as I would, apparently is based on the belief of the majority of the Court that for this Court to be bound by the original meaning of the Constitution is an intolerable and debilitating evil; that our Constitution should not be "shackled to the political theory of a particular era," and that, to save the country from the original Constitution, the Court must have constant power to renew it and keep it abreast of this Court's more enlightened theories of what is best for our society. It seems to me that this is an attack not only on the great value of our Constitution itself, but also on the concept of a written constitution which is to survive through the years as originally written unless changed through the amendment process which the Framers wisely provided. Moreover, when a "political theory" embodied in our Constitution becomes outdated, it seems to me that a majority of the nine members of this Court are not only without constitutional power, but are far less qualified, to choose a new constitutional political theory than the people of this country proceeding in the manner provided by Article V.

And to top it all off, Justice Douglas, after letting loose with his "notions ... do change" argument, also claimed, "Our conclusion ... is founded, not on what we think governmental policy should be, but on what the Equal Protection Clause requires." Dissenting Justice Black said he doesn't believe it. An author, John C. Hughes, in a book called "The Federal Courts, Politics, and the Rule of Law," published in 1995, said "Douglas's formalist rhetoric should not be taken seriously." Judge Robert Bork wrote, "Douglas must have enjoyed that line, ... stating emphatically that the Court was not doing precisely what the Court was doing."

I don't want to go back to the days of poll taxes, but I do want to understand that the 24th Amendment was a better way to get rid of them than having the Court hand down such a ludicrous opinion that lamely overturned a sound precedent.

[Skill and Chance]

can someone explain how life would be different if it were to pass?  What rights are not equal in 2020?

I think there is some fear of a deeply conservative SCOTUS eventually gutting some of the existing 14th Amendment precedents.  There is also the situation where NM adopted ERA language in its state constitution and then the NM state supreme court used that language to strike down a state law against Medicaid funding of abortion, with the implication that the ERA language prevents the state from enacting any significant restrictions on abortion.

   

Well that would be an interesting turn in jurisprudence, to base abortion rights law on the ERA when, after all these years, abortion rights law had always been inferred from the Due Process Clause of the 14th Amendment, not the Equal Protection Clause of the 14th. On the other hand, the Justices seem to treat those two clauses as if they are both little Rohrshach tests anyway, and perhaps it just doesn't matter from which of the clauses the Court infers abortion rights.

To answer deadoman, I don't even think there is any significant difference in divorce laws between how the sexes are treated. Not according to SCOTUS precedents. The Court took care of one of the aspects of divorce inequality in Orr v. Orr, 1979, when it struck down a law that provided men with no alimony pay if they divorced a wife who was making more than the husband. See here. As it says in that article, the Court applies "intermediate scrutiny" to all gender discrimination cases, and perhaps proponents of the ERA want the courts to always apply "strict scrutiny" from now on instead. That way, even the gender discrimination in the example of the draft will eventually get struck down. See Rostker v. Goldberg. The draft is still one of the examples of sex inequality in US law, so far as I know.

Interestingly, Ginsburg stated early in her career that she would have preferred to strike down abortion bans as unconstitutional sex discrimination vs. what became the actual Roe/Casey due process rationale.

A semi-plausible turn of events: Trump is reelected and gets to replace Ginsburg and Breyer.  A highly conservative mid-2020's SCOTUS then strikes down Roe/Casey.  Then coalitions substantially change to give the left a long term advantage in controlling the Senate.  A left-leaning SCOTUS then returns to the issue circa 2045 and finds a right to abortion in the ERA or in the 14th Amendment Equal Protection clause without touching the overturned 20th century due process precedents. 

Also, there is a long history of US law evolving in such a way that a previously proposed amendment is no longer necessary.  For example, the whole 18th and 21st Amendment saga of Prohibition would be unnecessary today as banning/heavily regulating alcohol sales (and repealing such a ban) could all be done through normal legislation as an exercise of congress's commerce powers.  The same thing happened with the Child Labor Amendment.  And a SCOTUS ruling using the 14th Amendment equal protection clause that long predated the 24th Amendment to strike down an even broader range of poll taxes followed just 2 years after the 24th Amendment was adopted. 

 

Had this ruling gone the other way, there could still be poll taxes in state level elections.  The 24th Amendment specifically exempted them and there was no prospect of passing another poll tax amendment right after that one.

I agree that opinion looks like making it up as they go along, but the federal courts simply should not stand for such an end run around the original intent of the Civil War Amendments as the Southern poll taxes were.  I would have loved for SCOTUS to instead find an affirmative right to vote (for all US citizens of age) in the 1st Amendment petition clause and then incorporate it on the states.  What would you think about that?

[MarkD]

No, I don't agree with that interpretation of the Petition Clause of the First Amendment. Petitioning and voting are different things. It's often said that your vote is your voice in government, but that expression does not mean that voting can be inferred from the Free Speech Clause of the First either.

To me, the fact that the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments were adopted makes it clear that the Fourteenth Amendment was not intended to grant general voting rights to its citizens. Nonetheless, the SCOTUS has been inferring general voting rights are protected anyway by the Equal Protection Clause of the Fourteenth, as seen in cases such as Reynolds v. Sims, Harper v. Virginia State Board of Elections, Kramer v. Union Free School District, Dunn v. Blumstein, and so on and so forth, including, most tragically, Bush v. Gore. I don't agree with any of it, but who am I? What can I do? I decided to propose a constitutional amendment that rewrites the Fourteenth Amendment to make its meaning narrower, more precise, and clearer. My first thoughts in that direction was to propose something that would restore the original, Nineteenth Century meaning of the Fourteenth. But when I thought about how unpopular that idea would be with today's lefties, I decided to compromise with them and include clauses that embrace and preserve many of the Twentieth Century's and Twenty-First Century's interpretations of the Equal Protection Clause. If, by some miracle, my proposal does get adopted, then we won't have to worry about inferring voting rights from the First Amendment.

[StateBoiler]

can someone explain how life would be different if it were to pass?  What rights are not equal in 2020?

Women should absolutely be required to sign up for the draft because men are. Now we don't really draft people today, but if you don't sign up for the Selective Service, you're not eligible for a bunch of college scholarships.

In theory, I can see an argument of a father stopping a mother that wants an abortion because based on the amendment he should have equal parenthood rights to the child.

[MarkD]

The ball is now in the hands of the Achivist of the U.S.

Under 1 USC 102b he has the responsibility of announcing when Amendments have been ratified.

If he doesn't, I expect someone who would benefit from the amendment being in place to eventually sue for a writ of mandamus to compel such an announcement.

If he does, eventually someone who is adversely affected by the amendment will sue seeking to have his announcement overturned.

Either way, because of the two year time delay in the amendment taking effect once ratified, I find it extremely unlikely the courts will find that anyone has standing to sue until January 15, 2022, the earliest date it could possibly come into effect.

The difficulty will be in finding someone with standing. Already most Federal and State laws are gender neutral. Because of the 19th Century Civil Rights Cases, it's clear that passage of the amendment, if it is deemed to have happened, won't be considered to affect private actions in any way.

(The CRA of 1964 is deemed a use of Congress' power under the Commerce Clause.)

To some scholars, the ERA is already dead. But one or two scholars do not have the authority to settle this, so I think you're right, TF. Does the Achivist (sp?) have two years to figure this out?

[True Federalist (진정한 연방 주의자)]

The ball is now in the hands of the Archivist of the U.S.

Under 1 USC 102b he has the responsibility of announcing when Amendments have been ratified.

If he doesn't, I expect someone who would benefit from the amendment being in place to eventually sue for a writ of mandamus to compel such an announcement.

If he does, eventually someone who is adversely affected by the amendment will sue seeking to have his announcement overturned.

Either way, because of the two year time delay in the amendment taking effect once ratified, I find it extremely unlikely the courts will find that anyone has standing to sue until January 15, 2022, the earliest date it could possibly come into effect.

The difficulty will be in finding someone with standing. Already most Federal and State laws are gender neutral. Because of the 19th Century Civil Rights Cases, it's clear that passage of the amendment, if it is deemed to have happened, won't be considered to affect private actions in any way.

(The CRA of 1964 is deemed a use of Congress' power under the Commerce Clause.)

To some scholars, the ERA is already dead. But one or two scholars do not have the authority to settle this, so I think you're right, TF. Does the Archivist have two years to figure this out?

The Archivist is supposed to make a determination as soon as NARA has received notice of ratification from the necessary number of States. The two year delay is because by the terms of the amendment itself, it doesn't take effect for two years (presumably to give governments time to make the necessary adjustments) and until it theoretically could've taken effect, I can't see anyone likely to have standing to sue over whether the ERA has been adopted or not.

[StateBoiler]

...so anything going on with this?

[Mr. Reactionary]

...so anything going on with this?

Hypocritical Attorney General blackface is wasting a bunch of taxpayer money to frivolously sue over this. Nothing will be known for years, at which point the Court will confirm what we already know: that this is nothing but a big waste of time and money by virtue signaling SJWs.

[Attorney General, LGC Speaker, and Former PPT Dwarven Dragon]

...so anything going on with this?

House is voting next week on a joint resolution to remove the deadline, but let's not pretend that it will see the light of day in the Senate.

[True Federalist (진정한 연방 주의자)]

Given the lack of action by the Archivist so far, I think it's safe to say that until Congress passes a joint resolution to eliminate the deadline, there will be no action from that office and maybe not even then. Sadly, this means not until 2021 at the earliest, since even if there are enuf Senate Republicans to vote to do so, Mitch will not allow a vote on anything seen as being even marginally critical of Trump or beneficial to Democrats.

[Attorney General, LGC Speaker, and Former PPT Dwarven Dragon]

Given the lack of action by the Archivist so far, I think it's safe to say that until Congress passes a joint resolution to eliminate the deadline, there will be no action from that office and maybe not even then. Sadly, this means not until 2021 at the earliest, since even if there are enuf Senate Republicans to vote to do so, Mitch will mot allow a vote on anything seen as being even marginally critical of Trump or beneficial to Democrats.

And maybe not even 2021, because if its a very narrow democratic majority, filibuster abolishment won't happen, and I don't see deadline removal getting 8 or 9 republican votes.

[100% pro-life no matter what]

Given the lack of action by the Archivist so far, I think it's safe to say that until Congress passes a joint resolution to eliminate the deadline, there will be no action from that office and maybe not even then. Sadly, this means not until 2021 at the earliest, since even if there are enuf Senate Republicans to vote to do so, Mitch will mot allow a vote on anything seen as being even marginally critical of Trump or beneficial to Democrats.

And maybe not even 2021, because if its a very narrow democratic majority, filibuster abolishment won't happen, and I don't see deadline removal getting 8 or 9 republican votes.

Even still, there would be issues of whether a deadline can be removed after it passes and whether the states that rescinded passing the amendment had the right to do so.

[StateBoiler]

Given the lack of action by the Archivist so far, I think it's safe to say that until Congress passes a joint resolution to eliminate the deadline, there will be no action from that office and maybe not even then. Sadly, this means not until 2021 at the earliest, since even if there are enuf Senate Republicans to vote to do so, Mitch will not allow a vote on anything seen as being even marginally critical of Trump or beneficial to Democrats.

It was argued earlier in the thread that joint resolutions have zero meaning. Once Congress passes a bill off to the states, they have no role.

[True Federalist (진정한 연방 주의자)]

Given the lack of action by the Archivist so far, I think it's safe to say that until Congress passes a joint resolution to eliminate the deadline, there will be no action from that office and maybe not even then. Sadly, this means not until 2021 at the earliest, since even if there are enuf Senate Republicans to vote to do so, Mitch will mot allow a vote on anything seen as being even marginally critical of Trump or beneficial to Democrats.

And maybe not even 2021, because if its a very narrow democratic majority, filibuster abolishment won't happen, and I don't see deadline removal getting 8 or 9 republican votes.

Even still, there would be issues of whether a deadline can be removed after it passes and whether the states that rescinded passing the amendment had the right to do so.

In any case, I said that it would be 2021 at the earliest, not that it would happen in 2021.

Moreover, even if deadlines are changeable, arguably it would take the same supermajority needed to propose an amendment to begin with. Then there's the issues of whether States can withdraw ratification before the necessary three-quarters have done so, and whether Congressional extension of a deadline must preceed States can resume efforts to ratify a proposed amendment.

[Frodo]

No previous constitutional amendment allowed states to rescind their ratifications, so why should an exception be made for the Equal Rights Amendment? 

[True Federalist (진정한 연방 주의자)]

No previous constitutional amendment allowed states to rescind their ratifications, so why should an exception be made for the Equal Rights Amendment? 

No previous constitutional amendment allowed Congress to change a ratification deadline, so why should an exception be made for the Equal Rights Amendment?

No previous amendment would've been undone by a rescission. There's also South Dakota's sunset provision which said that their prior approval would only be good until the original deadline of March 22, 1979.

In short, even if Congress were to approve an extension now, there's much litigating to be done.

Incidentally, Idaho v. Freeman 529 F. Supp. 1107 (1981) found that both state rescission was valid and that Congressional deadline extension was invalid. SCOTUS first stayed, then declared moot that decision of the United States District Court for the District of Idaho because there were not yet enuf states that could be argued to have ratified the ERA for it to be a case properly before the courts. Still, I think there's little doubt that the current SCOTUS would rule in favor of allowing at least South Dakota's sunset provision to be valid. Since at present, that's all it would take to reduce the number of ratifications below thirty-eight, that might be as far as it rules.  In any event, I can't see SCOTUS addressing whether Congress can extend the ratification deadline of an amendment, and if so whether it can do so by a simple majority without first finding that States can't revoke ratifications of outstanding amendments.

[StateBoiler]

No previous constitutional amendment allowed states to rescind their ratifications, so why should an exception be made for the Equal Rights Amendment? 

It's not that they were disallowed inasmuch they were completely silent on the issue. It's a question that requires an answer from the Supreme Court either for or against recissions having any legal meaning.