With Virginia expected to become the 38th state to approve the Equal Rights Amendment in January, that would give the measure the necessary three-fourths of states needed for ratification.

But nearly 100 years after it was first introduced, both supporters and critics of what would be a landmark constitutional addition say potential legal and political hurdles would remain before it could, in fact, become the 28th Amendment to the U.S. Constitution.

Running partly on support for the ERA, Democrats flipped both the Virginia General Assembly and Senate in November. Along with Democratic Gov. Ralph Northam, those results gave the party control of all branches of the state government for the first time since 1994.

One of the ERA’s strongest backers is incoming House of Delegates Speaker Eileen Filler-Corn, who when the Legislature convenes in January will become its first female house leader. Supporters say that behind her leadership, they are confident Virginia will become the third state since 2017 to join a newly revitalized push to ratify the amendment, along with Nevada and Illinois.

“I’m certain that by the end of January, we’ll have the approval of the ERA in Virginia,” said Jessica Neuwirth, co-president of the ERA Coalition, a national umbrella group of organizations pushing to enact the amendment. “It’s a top priority for all the legislators there. They know they have the votes, so it will happen pretty quickly.”
Approval would be a key step in a remarkable comeback story for the ERA, which was effectively left for dead in the 1980s.

The amendment first was introduced in 1923 by women’s suffragist Alice Paul. In 1943, she composed its current text, which simply reads, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

After Congress approved the ERA in 1972 with broad bipartisan support, 35 of the needed 38 states quickly ratified it over the next five years. Then, like now, polls showed a substantial majority of Americans agreed with its goal of amending the constitution to specifically ban gender-based discrimination.

But then momentum sagged, at least partly due to to highly effective opposition from conservative activist Phyllis Schlafly. She argued the ERA would harm homemakers by eliminating existing legal benefits for them, such as alimony and exemption from military service.

Schlafly’s fight became one of the defining cultural moments of the 1970s and exposed deep fault lines over the role of women in society.

The ERA also became linked to the intractable legal and social battles over abortion rights, with opponents warning that it would serve as a wedge to overturn state laws placing restrictions on abortion.

A 1979 deadline contained in the ERA’s preamble, later extended to 1982, expired without the necessary state ratification and led to some level of dormancy.

Aided by the “Me Too”movement in 2017, the Nevada legislature surprised many when it ratified the ERA. Illinois followed suit last year and gave unexpected new life to the movement despite lingering questions about whether the original deadline renders the new push moot.

Questions about the deadline are among the main lines of attack by opponents today. One of the leaders is Ann Cori, the daughter of Phyllis Schlafly, who died in 2016. Cori contends that not only are all the legal and moral arguments made by her mother still valid, but the 1982 deadline means any revived attempt to ratify the ERA now must start from scratch for the sake of fairness to a new generation.

“They’re trying to shoehorn the ERA into the Constitution nearly 50 years after original votes were taken,” she said. “There’s good reason for lovers of the U.S. Constitution to oppose this. We don’t have the supermajority needed for this today because it hasn’t been debated in decades. This is something that both Phyllis Schlafly and [U.S. Supreme Court Justice] Ruth Bader Ginsburg agree on.”

Neuwirth, however, said putting deadlines on proposed constitutional amendments is a relatively recent practice of dubious legality — something that would undoubtedly be tested in court should backers move to implement the ERA after approval in Virginia.

“At the beginning, when I first approached the ERA, I also thought, ‘Of course, you have to start over,'” she said. “But I’ve changed my mind just watching the reality of what’s happening in Nevada, Illinois and now Virginia. Those were very significant political actions which have to mean something.

“The point is, a deadline is not something that’s required by the Constitution. There are valid legal questions about Congress requiring these deadlines, putting them in, extending them. They didn’t even appear until the 18th Amendment to enact Prohibition [in 1917].”

After the Virginia vote, the next political test for the resurrected ERA is a bill introduced in the U.S. House to eliminate the 1982 deadline. That measure passed the House judiciary committee with bipartisan support in November.

Advertisements

LEAVE A REPLY

Please enter your comment!
Please enter your name here

This site uses Akismet to reduce spam. Learn how your comment data is processed.