Virginia May Ratify The Equal Rights Amendment. What Would Come Next Is Murky

Many advocates for women’s rights are watching Virginia closely, as the state’s legislature goes into session Wednesday. That’s because the Equal Rights Amendment has a good chance of being ratified by Virginia lawmakers.

The ERA nearly passed there last year. The then-Republican-controlled Senate approved the amendment with solid Democratic support, but it was one vote shy of getting a floor vote in the Republican-led House. November’s elections then swept Democrats into control of both the House and Senate.

If lawmakers pass the ERA this session, Virginia would become the 38th state to ratify it, and an amendment needs 38 states to be fully ratified and added to the U.S. Constitution.

However, it’s not clear what would happen after that. Here’s what the ERA would do and why its future is so murky.

What does the ERA say?

The main text of the Equal Right Amendment being considered right now is pretty simple: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

There are additional sections laying out that Congress is responsible for enforcing the amendment and those it would go into effect two years after its ratification.

What exactly would the ERA do?

It would explicitly put the idea of equal rights by sex into the Constitution. Legal scholars say that could raise the standards for whether a law that discriminates based on sex is constitutional.

That could mean increased protections in several areas, including pregnancy discrimination, according to Martha Davis, constitutional law professor at Northeastern University.

“The Supreme Court has ruled in the past that discrimination against pregnant women is really discrimination against pregnant people and therefore it doesn’t constitute sex discrimination,” she said. “And I think the Equal Rights Amendment, through its legislative history, as well as its language, would clarify that discrimination on the basis of traits that are sex-specific would be violative of the ERA.”

In addition, proponents often argue that the ERA would help women get equal pay, and that it would help victims of gender-based violence seek justice.

Conservative opponents often raise fears that the ERA would lead to the types of laws (or legal interpretations) that they oppose, particularly on issues like abortion. Meanwhile, some ERA proponents cite it as an important protection for abortion rights. (However, some proponents question whether this is a smart strategy, as Stephanie Russell-Kraft reported in the Daily Beast in 2018.)

State-level ERAs have been cited in cases protecting abortion funding, as Arizona Republic’s Annalee Monroe reported in 2019.

However, that doesn’t necessarily predict what would happen under an ERA in the U.S. Constitution.

“There certainly would be the opportunity to argue about abortion under the Equal Rights Amendment, but it’s not clear how that would come out,” Davis said.

Finally, proponents argue that there would be an important messaging value to the Equal Rights Amendment.

“At the level of principle, I think just to send the message out that 200 years after the Constitution was written and women were intentionally left out, we want to correct the record and make it very, very clear at the highest level of our law that women are no longer second-class citizens and should be treated with respect and equality,” said Jessica Neuwirth, president of the ERA Coalition.

I thought the ERA was a thing back in the 1970s. Why is it being debated now?

In fact, it has been around even longer. Women’s rights activist Alice Paul pushed an Equal Rights Amendment in the early 1920s, and it was first introduced in Congress in 1923.

However, getting the ERA further took awhile. It wasn’t until 1972 that Congress passed it and sent it on to the states for ratification. That amendment had a 1979 deadline. But by then, only 35 states had ratified it.

Congress bumped that deadline out to 1982, but no more states ratified it by then, and to many, the ERA appeared dead. When it became clear it wouldn’t succeed that year, the president of the National Organization for Women told reporters that the group would ”not again seriously pursue the ERA until we’ve made a major dent” in promoting women and feminist men in state legislatures, as The New York Times reported at the time.

Some proponents continued to advocate for it, however. Some pursued a strategy of starting over entirely with the ratification process. And some pursued the “three-state strategy,” arguing that only three more states were needed.

In 2017, three-state proponents gained new ground. That year — 40 years after the ERA had last been ratified by a state — Nevada became the 36th state to ratify it. And in 2018, Illinois became the 37th. Now Virginia may be the 38th.

If Virginia ratifies the ERA, would it then be in the Constitution?

It’s not so simple. There are multiple potential legal hurdles the amendment would face.

Maybe the biggest is that deadline mentioned above. A looming question right now is whether that deadline still counts. Some supporters argue that because the deadline is in the preamble that proposes the ERA — not the text of the amendment itself — the deadline does not have to be observed.

There’s also an argument that Congress has the final say, and that it can now remove that deadline. Democrats in the House and Senate have introduced legislation this session that would do that. But then, there isn’t legal consensus that this would work, and opponents have seized on this lack of clarity.

“Removing the deadline, even as Congress is attempting to do still, is fraught with constitutional questions in terms of the ratification process,” said Doreen Denny, vice president of government relations for Concerned Women for America, a conservative women’s group.

In addition, three states — South Dakota, Alabama and Louisiana — in December filed a federal lawsuit seeking to block the amendment.

One of their arguments is that five states have tried to take back their ratification — a move called rescission.

But then, there are also legal questions about this. For example, supporters of the ERA point out the Constitution also doesn’t explicitly say that rescission is allowed.

So if and when the Equal Rights Amendment is ratified, there is already one legal challenge, and potentially more, that could get in the amendment’s way. Eventually, the issue could end up before the Supreme Court.

(For a much fuller explanation of the legal arguments over this, read this thorough report from the Congressional Research Service, last updated in December.)

How politically divisive is the ERA?

When it was proposed, in 1972, the ERA had broad backing in Washington. It easily passed both houses of Congress (84-8 in the Senate and 354-24 in the House) with bipartisan support.

But a conservative movement against the amendment, led by lawyer and activist Phyllis Schlafly, helped stir opposition by the time its deadline rolled around.

The amendment has proven more popular among Democrats than Republicans in recent years, but there is still at least some bipartisan support.

For example, seven Republicans joined Democrats when the Virginia Senate passed the ERA last year. And in the U.S. Senate, both Alaska Republican Lisa Murkowski and Maine Republican Susan Collins have said they support the amendment.

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