Bob Brown/Richmond Times-Dispatch via AP
ERA supporters stand under a portrait of Thomas Jefferson as Virginia state Senator Glen H. Sturtevant presents his Equal Rights Amendment bill in Richmond, Virginia, on January 9, 2019, the first day of the 2019 General Assembly session.
In November, Virginia Democrats flipped the state legislature, which many observers took as a bellwether for national trends. The legislature’s first priority also signals a new political dawn. In the new session next January, lawmakers plan to make Virginia the 38th and final state needed to ratify the Equal Rights Amendment to the United States Constitution. Virginia Democratic Party Chairwoman Susan Swecker says, “We’ll be the 38th state, unless someone beats us to it!” But legal experts say this will only start a new chapter in the amendment’s battle.
First introduced in 1923 and advanced through Congress in 1972, the amendment may finally be on the cusp of becoming a constitutional reality. Virginia attempted to ratify the amendment in its last legislative session, but with both houses still under Republican control, it came up one vote shy of the necessary simple majority. It is unclear if any Republicans will support the legislation. Swecker says Republicans would do well to support the ERA, “or they’ll continue to lose women’s support in record numbers.”
The Virginia Republican Party did not respond to requests for comment.
The ERA would guarantee equal protections for all sexes under the Constitution, and would provide a legal basis to push back on discriminatory laws. “I think that having an ERA is not just a symbol, it’s a foundation legally for other forms of legislation, and that’s really what they had in mind in the 1970s,” says Julie C. Suk, a professor of sociology and political science at the CUNY Graduate Center. “There were still vestiges even in the early 1970s of a world in which women just didn’t have equal rights under the law. Proponents wanted the ERA to get rid of those things.”
But Virginia’s vote on the four-sentence-long amendment will not settle the matter. When Congress finally passed the ERA in 1972, it attached a seven-year deadline by which the required three-quarters of all states had to ratify the amendment for it to be added to the Constitution. Some states voted on the amendment and referred to the deadline in their resolutions; others just voted on the amendment text.
The addition of a deadline mirrors the ERA’s circuitous path to progress since its conception in the early-20th-century women’s movement. It took decades for Congress to vote on the amendment and then it was coupled with other unpopular resolutions, such as school prayer and busing, in an attempt to kill the legislation, says Suk.
Congress later extended the deadline from 1979 to 1982. ERA activists traveled the country rallying support for the amendment during those years, garnering “yes” votes in 20 states in the first year. But they were countered by the equal vigor of anti-feminists like Phyllis Schlafly, who lobbied against it by claiming it would require women to serve in combat roles in the military. In 1982, the ERA failed, only getting 35 states to vote “yes” by that time.
When the second deadline passed, it seemed that all the work of a decade had been lost, until the 1990s, when Congress took up the 27th Amendment. Initially proposed by James Madison in 1789, the amendment wasn’t ratified until 1992, 203 years later. Wendy Murphy, legal counsel for Equal Means Equal, an organization advocating for ratification of the ERA, says that in a 1921 Supreme Court case, the court ruled that to ratify the “Madison Amendment” more than 100 years after it had been proposed would be too late. “So if in 1921 it was already too late to ratify the Madison amendment according to the Supreme Court, then how the hell did it become ratified in 1992?” Murphy asks.
AP Photo
Longtime ERA foe Phyllis Schlafly in November 1977
The Madison Amendment ratification reignited activists. Nevada passed the ERA in 2017 and Illinois a year later, leaving the amendment one state short of the requirement for ratification. Virginia will put it over the top next year. The question then becomes whether it exists as a constitutional amendment, or not.
Congress has regularly imposed state-ratification deadlines on constitutional amendments since it sent the 23rd Amendment (which gave the District of Columbia votes in the Electoral College) to the states in 1960. But there are questions today about whether Congress has the authority to authorize a deadline at all. Most amendments in the Constitution’s history were ratified without deadlines. “This history is really important for whether we should think of this deadline as a normal standard or something that was used to try and thwart the progress of women’s rights,” says Suk.
Suk argues that amendments that expand the constitutional definition of who is included in “We the People” take longer. The amendment granting women the right to vote took several decades: First proposed in 1878, it wasn’t ratified until 1920, and the movement to gain suffrage had actually started decades earlier. Susan B. Anthony was known as the “mother of the amendment,” but she did not live to see its ratification. Progress in the women’s movement and expansions of who is protected by the Constitution are built upon “intergenerational progress,” says Suk, who is also the author of the forthcoming book We the Women: The Forgotten Mothers of the Equal Rights Amendment. Women’s movements in particular, she says, often rely on several generations’ worth of progress. Suk also highlighted the significant delay between the earliest anti-slavery proposals when the Constitution was written to the time the 13th Amendment passed in 1865.
On November 13, the House Judiciary Committee marked up a joint resolution that would eliminate the deadline on the ERA, in anticipation of Virginia’s “yes” vote. That bill has bipartisan support, composed of 215 Democrats, and Republicans Tom Reed of New York and Brian Fitzpatrick of Pennsylvania. Senators Lisa Murkowski (R-AK) and Ben Cardin (D-MD) have co-sponsored a companion resolution in the upper chamber.
But by working to eliminate the deadline, Congress may be giving credence to the legal principle that Congress can set deadlines for amendment ratification at all. Some ERA proponents prefer to use the courts to invalidate the deadline over lobbying Congress to pass legislation eliminating it.
Murphy, who works with activist group Equal Means Equal, contends that “it’s only a valid deadline if Congress validly enacted it in the first place. Article 5 does not grant Congress the authority to impose deadlines on any ratification process. It doesn’t say anything about deadlines. Therefore, deadlines are not possible.”
When Congress sets deadlines, Murphy says, it removes power from the states. “If Congress can impose a very long deadline on one amendment and a very short deadline on another, then it is, in a sense, completely under Congress’s control whether the Constitution gets amended.” A deadline on any amendment also makes it a target for intense, high-dollar lobbying, Murphy adds. Plus, any legislation eliminating a deadline that passes the House would then be doomed to the legislative graveyard in the Senate.
Murphy’s ERA strategy does not include waiting for Senator Mitch McConnell to call a vote on any deadline bill. She anticipates that, after Virginia ratifies the amendment, there will be several immediate lawsuits against the federal government from states that have not yet ratified, deeming the amendment invalid and time-barred. Her team has similarly prepared lawsuits of its own, to abolish state laws that would be unconstitutional under the ERA. When these cases make their way up to the Supreme Court, the Court will have to resolve the matter, taking into consideration all sides of the argument.
Outside of dedicated ERA advocacy groups, it may be difficult to garner support for the Equal Rights Amendment. Polls show most voters support the ERA, including a recent Virginia poll that boasted 73 percent support. But most people also think it’s already in the Constitution.
Anna Greenberg, a partner at a political polling company, says some could make the argument today that the ERA is no longer needed because of other laws that protect against sex discrimination. “In the 1970s, they were able to make it not about equality and more about a culture war,” Greenberg says. ERA supporters will have to again fight the same arguments from the ratification era about unisex bathrooms (similar to the current discourse over bathroom bills for transgender people) and other alleged implications. As Greenberg puts it, opponents of the ERA are likely to say, “Even though it seems benign, there could be unintended consequences. There’s going to be some hidden cost.”
Maria Vullo, Co-Founder and Chair of the board of the ERA Coalition, a national group dedicated to getting the ERA ratified, cites several Supreme Court cases that illustrate why a constitutional amendment is necessary. In the 1974 case Geduldig v. Aiello, the Supreme Court held that pregnancy discrimination does not violate the Equal Protection Clause. In another case, Castle Rock v. Gonzales (2005), a woman whose abusive ex-husband kidnapped and murdered three of her children was ruled to have no claim against her local police department for failing to enforce a court order of protection. In another example advocates list, Ledbetter v. Goodyear Tire (2007), a woman did not know for years that she was paid less than her male co-workers, and she lost her case under the statute of limitations.
