The Deferred Dream of an Equal Rights Amendment

Virginia Delegate Jennifer Carroll Foy cheers on Equal Rights Amendment demonstrators outside the Capitol in Richmond in January.

Virginia Delegate Jennifer Carroll Foy cheers on Equal Rights Amendment demonstrators outside the Capitol in Richmond in January. Steve Helber/AP

 

Connecting state and local government leaders

Newly empowered Democrats are likely to make Virginia the final state needed to ratify the long-dormant ERA.

Not often in American history does a single state election yield the ratification of an amendment to the Constitution—a task that is, by design, perhaps the most Herculean in the U.S. political system.

But that’s what Virginia’s voters may have done on Tuesday by sweeping Democrats into power in the state legislature for the first time this century. The party’s newly empowered leaders pledged during the campaign—and have reiterated in the days since—to quickly vote to ratify the Equal Rights Amendment when their majorities take office in January. If they do, Virginia would become the 38th and final state needed to sign off on a constitutional revision that was first proposed shortly after women won the right to vote but has, until recently, been dormant for decades.

“We will be bringing that back, and yes, we do have the votes to pass it,” declared Eileen Filler-Corn, the Virginia state representative who is likely to become the first woman speaker of its House of Delegates.

Virginia’s ratification would cheer progressive women nationwide, including millions who have only read about the fight for the Equal Rights Amendment in history books. And it would thrust a constitutional debate back into Congress’s lap during a year that happens to be the centennial anniversary of women’s suffrage. Its passage would not, however, be the last word on the ERA.

The amendment fits on a single piece of paper and has a main clause with just 24 words: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” The movement for its passage began with a proposal from the suffragist Alice Stokes Paul in 1923, and its current wording dates to 1943.

When the House and Senate each finally approved the ERA, in 1972, the resolution included a seven-year deadline for ratification by three-quarters of the states—a timeline that had been absent from the early amendments to the Constitution but had become standard for proposals in the 20th century. Congress ultimately extended the deadline to 1982, when the amendment was three states short of the threshold for ratification. But by then, the momentum for passage had long since faded.

Nevada became the 36th state—and the first in 42 years—to ratify the ERA in 2017, and Illinois followed a year later.

“This is a really unprecedented situation,” says Linda Coberly, an appellate lawyer who heads a legal task force for the ERA Coalition, a group pushing for the amendment’s adoption. Never before has a constitutional amendment been fully ratified after a congressionally imposed deadline has passed. The last amendment to be added governed salary raises for members of Congress and was ratified by the states in 1992, more than 200 years after Congress first approved it. But it did not have a deadline attached to it.

The battle likely will move to Capitol Hill, where legislation to remove the ERA deadline altogether is pending in both the House and Senate. Buoyed by the Virginia elections, Democrats on the House Judiciary Committee are expected to consider a bill written by Representative Jackie Speier of California as soon as next week, according to people familiar with the committee’s plans.

A companion bill in the Senate has the support of Republican Senators Susan Collins of Maine and Lisa Murkowski of Alaska, but whether Senate Majority Leader Mitch McConnell will give it a vote is unclear. ERA advocates hope that the GOP’s imperative to win back the support of women voters in a crucial election year will prompt McConnell to act. The Republicans’ 53–47 majority is up for grabs in 2020, and one of their most vulnerable senators up for reelection is Collins. (A McConnell spokesman declined to comment.)

Regardless of whether Congress acts, a legal challenge is all but assured if Virginia ratifies the ERA early next year. Supporters of the amendment could contest the validity of the deadline itself, while opponents would challenge Congress’s ability to extend a deadline long after it has passed.

Credit for defeating the ERA in the 1970s has largely gone to Phyllis Schlafly, the conservative activist who rallied women against the amendment on the grounds that men and women were fundamentally different and that its ratification would threaten gender-specific protections that were long baked into the law, such as exemption from military service. Schlafly died in 2016, but her daughter Anne Cori has picked up her cause.

“It would be a grave mistake for the Virginia legislature to ratify the Equal Rights Amendment. It would cause enormous harms to so many people,” Cori, who is the chairman of the organization her mother founded, the Eagle Forum, told me. Cori said the ERA would “force the interchangeability of men and women in all situations” and put abortion rights “directly into the Constitution.”

If Virginia acts next year, the ERA’s legal fate likely would end up before the Supreme Court. With that in mind, Cori and other conservatives noticed that in a speech at Georgetown University earlier this year, Justice Ruth Bader Ginsburg renewed her support for the ERA, but suggested the process of ratification would need to start “over again.”

“Both Phyllis Schlafly and Ruth Bader Ginsburg agree on one thing: For the ERA to get into the Constitution, the process must start over,” she told me. Cori also argued that adoption of the ERA would “open up a hornets’ nest of unintended consequences” that go far beyond protecting women from discrimination and into debates surrounding sexual orientation and gender identity. The word women never appears in the text of the amendment, she observed. “The ERA is not an amendment about women. It’s an amendment about sex,” Cori argued. “The ramifications of the ERA are different [now] because the definition of sex has changed.”

Supporters of the ERA acknowledge that its applications could be wide-ranging, depending on what (if any) laws Congress passes to enforce the amendment or how it would be interpreted by the courts. That could extend to state or federal funding of abortion, as well as transgender rights, Coberly says.

Yet because of how much has changed in federal and state law since the ERA was first proposed, the immediate impact of the amendment—which, if ratified and upheld, would take effect after two years—could be somewhat limited. Federal laws offer many protections against sex discrimination, and more than half of the states have versions of the ERA in their own constitutions.

But nothing compares to the permanence of a federal constitutional amendment or the stronger legal protections it could offer, ERA supporters point out. “There are still many forms of discrimination that need to be addressed,” says Bettina Hager, the ERA Coalition’s D.C. director. “Legislation can be rolled back.”

That the virtues and drawbacks of the Equal Rights Amendment would be discussed in the present tense would have been unthinkable only a few years ago. Even in Virginia, the issue was just one of many at stake in local elections across the state. But whether voters fully realized it or not, their collective decision on Tuesday has brought a long-dormant constitutional debate back to life.

Russell Berman is a staff writer at The Atlantic, where he covers politics.

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