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DYER v. BLAIR
February 20, 1975
GOUDYLOCH E. DYER ET AL., PLAINTIFFS,
W. ROBERT BLAIR, SPEAKER OF THE ILLINOIS HOUSE OF REPRESENTATIVES,[FN*] DEFENDANT. DAWN CLARK NETSCH ET AL., PLAINTIFFS, V. WILLIAM C. HARRIS, PRESIDENT OF THE ILLINOIS SENATE, AND W. ROBERT BLAIR, SPEAKER OF THE ILLINOIS HOUSE OF REPRESENTATIVES,[FN*] DEFENDANTS.
Before Stevens, Circuit Judge, Hoffman, Senior District Judge,
and Parsons, District Judge.
The opinion of the court was delivered by: Stevens, Circuit Judge.
The question presented in each of these cases is whether action
taken during the 78th General Assembly of the Illinois
legislature constituted "ratification" of the proposed Equal
Rights Amendment to the United States Constitution within the
meaning of article V of that instrument.*fn1 That amendment
received a favorable vote of more than a majority but less than
three-fifths of the members of each house of the Illinois
legislature. The question arises because the precise meaning of
the term "ratified" has not yet been given a federal definition,
but the Illinois State Constitution, as well as a rule adopted by
the Illinois House of Representatives and a ruling of the
President of the Illinois Senate in the 78th General Assembly,
have prescribed a three-fifths majority requirement for amendment
to the federal Constitution.
We first more fully describe the manner in which the issue
arose and identify the specific motions which are before us; we
next explain why we believe the question is justiciable,
notwithstanding defendants' argument that it is a "political
question"; we then explain our understanding of the term
"ratified" as used in article V; and finally we decide whether
Illinois ratified the proposed Equal Rights Amendment during the
78th General Assembly.
On March 22, 1972, Congress approved the proposed 27th
Amendment to the Constitution and submitted it for ratification
to the legislatures of the states:
Resolved by the Senate and House of Representatives
of the United States of America in Congress assembled
(two-thirds of each House concurring therein), That
the following article is proposed as an amendment to the
Constitution of the United States, which shall be
valid to all intents and purposes as part of the
Constitution when ratified by the legislatures of
three-fourths of the several States within seven
years from the date of its submission by the
Section 1. Equality of rights under the law shall
not be denied or abridged by the United States or by
any State on account of sex.
"Sec. 2. The Congress shall have the power to
enforce, by appropriate legislation, the provisions
of this article.
"Sec. 3. This amendment shall take effect two years
after the date of ratification."
H.J.Res. 208, 86 Stat. 1523 (1972).
Article XIV, § 4 of the Illinois Constitution of 1970
provided, for the first time,*fn2 explicit procedures for the
Illinois General Assembly to approve amendments to the United
§ 4. Amendments to the Constitution of the United
The affirmative vote of three-fifths of the members
elected to each house of the General Assembly shall
be required to request Congress to call a Federal
Constitutional Convention, to ratify a proposed
amendment to the Constitution of the United States,
or to call a State Convention to ratify a proposed
amendment to the Constitution of the United States.
The General Assembly shall not take action on any
proposed amendment to the Constitution of the United
States submitted for ratification by legislatures
unless a majority of the members of the General
Assembly shall have been elected after the proposed
amendment has been submitted for ratification. The
requirements of this Section shall govern to the
extent that they are not inconsistent with
requirements established by the United States.
No action was taken on the ratification of E.R.A. by the
Illinois House of Representatives during the 77th General
Assembly, which expired on January 9, 1973. As Representative
Juckett explained, this was in keeping with the "waiting period"
provision of article XIV, § 4.*fn3 On May 24, 1972, however, the
Senate of the 77th General Assembly did vote on Senate Joint
Resolution 62, the E.R.A. The resolution received 30 affirmative
votes with 21 members opposed and one voting "present," a
constitutional majority*fn4 of the 59 Senate members but six
votes short of three-fifths. The Journal of the Senate reports
that, on this vote, "The motion prevailed and the resolution was
adopted. Ordered that the Secretary inform the House of
Representatives thereof and
ask their concurrence therein." Journal of the Illinois Senate
At the outset of the 78th General Assembly, on February 1,
1973, the Illinois House of Representatives adopted rules to
govern the ratification of constitutional amendments. Rule 42
42. Resolutions Concerning Proposed Constitutional
(a) Resolutions proposing any changes in the
Constitutions of the State of Illinois or the United
States shall be so designated and numbered
(b) Such resolutions shall be read once in full and
assigned to committee in the manner provided in Rule
(c) Such resolutions shall be read in full a second
and third time on different days and reproduced and
placed on the members' desks before the vote is taken
on final passage.
(d) No such resolution shall pass except upon an
affirmative vote of 107 members.
(e) The provisions of this rule may be suspended only
upon an affirmative vote of 107 members.
An attempt on that date by Representative Catania, one of the
plaintiffs herein, to amend Rule 42 to require only 89 votes, a
constitutional majority, for the ratification of amendments to
the federal Constitution was withdrawn and referred to the House
Subsequently, on April 4, 1973, House Resolution 176, which
would have amended Rule 42 in that respect, was reported
favorably by the Rules Committee, but was defeated by the full
House 69-90.*fn7 Debate over this Resolution centered on an
opinion that Illinois Attorney General William Scott had given
then Speaker of the House W. Robert Blair on May 11, 1972, that
article XIV, § 4 of the Illinois Constitution, insofar as it
required both a three-fifths vote and a waiting period, was in
conflict with articles V and VI of the federal Constitution and,
consequently, of no effect.*fn8 Proponents of the amendment to
Rule 42 relied heavily on this opinion.*fn9 Opponents ...