The Atlanta Journal-Constitution
Will Equal Rights Amendment pass?
Of all the things that Virginia may pass now that Democrats have won control of the state Legislature, none have been so long in the making as the Equal Rights Amendment. First proposed almost a century ago and passed by Congress in 1972, the constitutional amendment — a single sentence reading, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex” — was ratified by only 35 of the necessary 38 states before a 1982 deadline. Nearly four decades later, in 2017, Nevada became the 36th. In 2018, Illinois was the 37th. What is expected to happen in Virginia?
Now, Virginia’s incoming Democratic leaders have promised to take up the amendment immediately when the Legislature convenes in January — and given that it failed in the Virginia Senate by only one vote when the body was under Republican control, passage is almost assured.
“If we get it to the floor and let people vote, then it will become law,” Gov. Ralph Northam, a Democrat, told reporters Wednesday. “Virginia will be next in line to pass the ERA.”
Advocates, almost giddy in interviews Wednesday, said ratification seemed more likely than it had at any point in the past 40 years.
“It was so exhilarating,” Carol Jenkins, co-president and chief executive of the ERA Coalition, said of watching the election results come in. “This was first introduced in 1923, so almost a century of someone working to get equality for girls and women in this country, and this is as close as we’ve ever gotten.”
What can Congress do?
The biggest question now is whether Congress will remove the deadline — or whether the deadline was ever enforceable to begin with. The Democratic-led House held a hearing in April on a resolution to repeal the deadline and is likely to pass it. The next step is a House Judiciary Committee markup, which has not been scheduled, but which advocates are expecting to take place within weeks.
What the Republican-led Senate will do is less certain: As is the case with any legislation, Sen. Mitch McConnell, the majority leader, could refuse to allow a vote.
Sen. Benjamin Cardin, D-Md., the primary sponsor of the Senate resolution, said in an interview Wednesday that he believed the amendment had enough votes to pass if McConnell brought it to the floor. Two Republicans, Sens. Lisa Murkowski of Alaska and Susan Collins of Maine, are co-sponsoring the resolution, which is before the Judiciary Committee.
McConnell’s office did not immediately respond to a request for comment.
Jessica Neuwirth, founder and co-president of the ERA Coalition, said supporters needed “a few more votes” in the Senate but argued that ratification in Virginia would make inaction politically untenable.
“At that point,” Neuwirth said, “what you have is Congress almost standing in the way of the states’ clear and explicit intention to ratify the ERA.”
Why did the amendment stall?
The history of the Equal Rights Amendment is long and intensely complicated. Suffragist Alice Paul wrote the first version of it and got it introduced in Congress in 1923 — meaning that when Congress gave its approval in 1972, it was a breakthrough already 50 years in the making. The momentum at that point seemed clearly on the side of its supporters, and five years into the seven-year ratification period Congress had set, 35 states had ratified the amendment.
But anti-feminist leader Phyllis Schlafly mobilized a quick and extraordinarily successful movement to stop the ERA, warning of disastrous consequences if traditional gender roles were eroded. Among other things, she argued that the amendment would force women to serve in combat and render single-sex bathrooms obsolete.
Congress extended the ratification deadline to 1982, but not a single additional state signed on.
That might have been the end of it, and so it certainly seemed for nearly four decades. But in 2017, Nevada — which had rejected the amendment in 1977 — brought it back from the dead. Illinois followed. And suddenly the question was: Well, what now?
What will be the next steps?
Legal battles are likely even if Congress does repeal the deadline. For starters, legislators in five states — Idaho, Kentucky, Nebraska, South Dakota and Tennessee — have voted to rescind their ratifications.
Based on legal precedent, that doesn’t matter: Some states also tried to rescind their ratifications of the 14th and 15th amendments, but their original ratifications were still counted. But opponents could still try to challenge the amendment on that basis.
The other question is whether Congress has the authority to remove the deadline — or, if it does, whether its removal can apply retroactively. In other words, if Virginia ratifies the ERA before Congress passes the deadline legislation, does it still count?
Supporters argue that if Congress had the authority to set a deadline to begin with, then it must also have the authority to remove it. Others note that nothing in Article V of the Constitution, which lays out the process for amendments, says ratification must happen within a certain period of time: After all, Congress approved the 27th Amendment in 1789, and the final state did not ratify it until 1992.
These people argue that Congress’ deadline was invalid from the start — particularly because it was contained in a preamble to the amendment, not the amendment itself.
The debate is not likely to be resolved soon.
“We fully anticipate that there will be a Supreme Court decision involved in this,” said Krista Niles, outreach and civic engagement director at the Alice Paul Institute, one of the main organizations promoting the Equal Rights Amendment. “Both sides of the argument have lawyers waiting to file their amicus briefs at any moment that the 38th state does ratify.”