OPINION: 24 Words & One State: The Future of Women’s Equality is in the Hands of Virginians

By: Sam Galina, Staff Editor

24 words is all it takes to formally recognize equality for men and women in America. Somehow, it’s been 232 years and women are still waiting.[1]  The text of the proposed Equal Rights Amendment 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.” [2]

Research has shown that 80% of Americans mistakenly believe men and women are already guaranteed equal rights under the Constitution and 94% of Americans said they would support an amendment to the U.S. Constitution that guarantees equal rights for both men and women. [3]

The Past

Suffragist Alice Paul introduced the Equal Rights Amendment (ERA) to Congress nearly 100 years ago, in 1923. [4] It was a momentous day nearly 50 years later in 1972 when Congress approved the ERA.[5] In order for the ERA to become a Constitutional amendment it needs both the support of Congress and three-fourths of the states (38 of the 50 states). [6] Once the Office of the Federal Register (OFR) verifies that thirty-eight states have ratified the amendment, the OFR drafts a formal proclamation to the Archivist to certify the amendment is valid and it becomes part of the Constitution.[7]  This process has happened a measly twenty-seven times in this nation’s history. Within five years of the ERA’s passage in Congress, thirty-five states had ratified. [8] Congress originally included a seven-year deadline for states to ratify the ERA, which was extended to 1982. Ratification momentum was lost at which point the ERA lay dormant for another 42 years. In 2017, Nevada became the 36thstate to ratify the ERA and Illinois followed just a year later.[9]

Women’s futures in the hands of Virginians

The ERA needs just one more vote and with Virginia’s recent election results, in which the state turned blue, analysts are saying Virginia’s ratification is almost assured. [10] Earlier this year, the ERA failed by just one vote in Virginia’s previously Republican controlled Senate. Virginia, now, Democrat controlled in both the House and Senate has promised to vote on the ERA once the legislature convenes in January. [11]

Opponents claim that the ERA is no longer necessary due to their perception that equality has been achieved. However, the ERA would provide a clear judicial standard for deciding cases involving sex discrimination, provide a strong legal defense for the rollback of women’s rights and improve the United States’ standing as a nation that respects human rights. [12] In 1971, the Court applied the 14th amendment to sex-based discrimination for the first time in Craig v. Boren.[13] It appeared as though Craig v. Boren closed the chapter on strict scrutiny when the court ordered sex discrimination would be evaluated under intermediate scrutiny.[14] Although the plurality decision from just a few years earlier in Frontiero v. Richardson had suggested strict scrutiny was the way forward.[15] In 1996 when Justice Ginsburg announced the majority opinion in United States v. Virginia(the VMI case) she did not definitively opine that sex discrimination would be evaluated under strict scrutiny, however she did apply a standard comparable to that generally used in cases of strict scrutiny.[16] The VMI decision instructs courts to exercise “skeptical scrutiny” requiring an “exceedingly persuasive” justification of differential treatment on the basis on sex. However, this standard is not nearly as clearly enforceable as strict scrutiny, which is applied in cases involving racial discrimination.[17]

We need the ERA now more than ever before, especially considering the conservative nature of the Supreme Court. The ERA would have the very real effects of bolstering laws related to pay equity, domestic violence and pregnancy discrimination amongst many others. [18]

The Legal Complications that Lay Ahead

Legal experts disagree over whether or not Virginia’s ratification would make the ERA officially a Constitutional amendment.[19] First, an amendment has never been ratified after the congressionally set deadline has passed.[20] Currently, legislation is pending in both the House and Senate with both “Traditional Legislation” and “Three-State Strategy Legislation” aimed at removing the deadline.[21] Some scholars argue that Congress does not have the power to change the deadline once it has passed.[22] Furthermore, if Virginia were to ratify prior to congressional legislation, legal scholars disagree over the validity of Virginia’s ratification.[23] To make matters more complicated, five states have voted to rescind their ratification.[24] Legal precedent points to the notion that rescission is not possible, however this would undoubtably be challenged in court. [25]

As I write this, I can practically hear Attorney Generals in non-ratifying states typing amicus briefs opposing Virginia’s ratification of the ERA. It is almost certain that if Virginia were to ratify the ERA the issue would come before the Supreme Court, however the first step is for Virginia to ratify.

[1] It has been 232 years since the adoption of the U.S. Constitution in 1787.

[2] Thomas Neale, The Proposed Equal Rights Amendment: Contemporary Ratification Issues, Congressional Research Service (July 18, 2018)https://fas.org/sgp/crs/misc/R42979.pdf.

[3] ERA Coalition, BREAKING: Americans–by 94%– Overwhelmingly Support the Equal Rights Amendment (ERA)(Jun 17, 2016, 10:03) https://www.prnewswire.com/news-releases/breaking-americansby-94—overwhelmingly-support-the-equal-rights-amendment-era-300286472.html.

[4] Maggie Astor, The Equal Rights Amendment May Pass Now. It’s Only Been 96 Years., N.Y. Times, Nov. 6, 2019  https://www.nytimes.com/2019/11/06/us/politics/virginia-ratify-equal-rights-amendment.html.

[5] Id.

[6] Federal Register, Constitutional Amendment Process, National Archives (Aug. 15, 2016)https://www.archives.gov/federal-register/constitution.

[7] Id.

[8] Maggie Astor, The Equal Rights Amendment May Pass Now. It’s Only Been 96 Years., N.Y. Times, Nov. 6, 2019  https://www.nytimes.com/2019/11/06/us/politics/virginia-ratify-equal-rights-amendment.html.

[9] Russell Berman, The Equal Rights Amendment Is an Artifact No More, The Atlantic (Nov. 8, 2019), https://www.theatlantic.com/politics/archive/2019/11/virginia-equal-rights-amendment-women-constitution/601609/.

[10] Maggie Astor, The Equal Rights Amendment May Pass Now. It’s Only Been 96 Years., N.Y. Times, Nov. 6, 2019  https://www.nytimes.com/2019/11/06/us/politics/virginia-ratify-equal-rights-amendment.html.

[11] Id.

[12] Why We Need the Equal Rights Amendment?,  Alice Paul Institute, https://www.equalrightsamendment.org/why(last visited Nov. 17, 2019).

[13] Learning Center | Supreme Court Decisions & Women’s Rights – Milestones to Equality,The Supreme Court Historical Societyhttps://supremecourthistory.org/lc_the_most_recent_standard.html(last visited Nov. 17, 2019).

[14] Id.

[15] Id.

[16] Id.

[17] Equal Rights Amendment, Why We Need the Equal Rights Amendment?,  Alice Paul Institute, https://www.equalrightsamendment.org/why(last visited Nov. 17, 2019).

[18] Maggie Astor, The Equal Rights Amendment May Pass Now. It’s Only Been 96 Years., N.Y. Times, Nov. 6, 2019  https://www.nytimes.com/2019/11/06/us/politics/virginia-ratify-equal-rights-amendment.html.

[19] Id.

[20] Russell Berman, The Equal Rights Amendment Is an Artifact No More, The Atlantic (Nov. 8, 2019), https://www.theatlantic.com/politics/archive/2019/11/virginia-equal-rights-amendment-women-constitution/601609/.

[21] Traditional Legislation: Senate Joint Resolution 15 (S.J. Res. 15) and House Joint Resolution 35 (H.J. Res. 35) led by Sen. Robert Menendez (D-NJ) and Rep. Carolyn Maloney (D-NY), respectively.

Three-State Strategy Legislation: Senate Joint Resolution 5 (S.J. Res. 5) and House Joint Resolution 38 (H.J. Res. 38) led by Sen. Benjamin Cardin (D-MD) and Rep. Jackie Speier (D-CA), respectively.  Equal Rights Amendment, In Congress, Alice Paul Institute,https://www.equalrightsamendment.org/incongress(Last visited Nov. 17, 2019).

[22] Maggie Astor, The Equal Rights Amendment May Pass Now. It’s Only Been 96 Years., N.Y. Times, Nov. 6, 2019  https://www.nytimes.com/2019/11/06/us/politics/virginia-ratify-equal-rights-amendment.html.

[23] Id.

[24] Id.

[25] Id.

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