Of all the laws the Virginia legislature may pass now that Democrats have won control of it, none have been so long in the making as the Equal Rights Amendment. First proposed almost a century ago and passed by Congress in 1972, the E.R.A., which would add a provision to the Constitution guaranteeing equal rights to men and women, could have sweeping implications if it takes effect.
Both houses of the Virginia Legislature approved it on Wednesday, and the governor is expected to sign the ratification resolution. Supporters hope that will lift the amendment over the threshold to become part of the federal Constitution. But there is considerable dispute over whether the state’s action will have any legal effect or merely be symbolic.
Here’s what it is all about.
What does the amendment say?
The E.R.A. is three sentences long, and the key one is the first: “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 other two are about putting it into effect.
By some estimates, 80 percent of Americans mistakenly believe that women and men are already explicitly guaranteed equal rights by the Constitution. But it currently does so only for the right to vote. The amendment is intended to remedy that omission.
Supporters say adopting the E.R.A. would, among other things, sweep away discrimination in the workplace; help women to achieve pay equality and allow men to get paid paternity leave; require states to intervene in cases of domestic violence and sexual harassment; and guard against discrimination based on pregnancy and motherhood. It may bolster protections for gay and transgender people as well.
Opponents have argued that the amendment would, among other things, undermine family structure; intrude on religious practice; and lead to the outlawing of separate men’s and women’s bathrooms, single-sex college dormitories and other accommodations.
Some also argue that the E.R.A. is unnecessary because the 14th Amendment already guarantees everyone the “equal protection of the laws.” The Supreme Court has indeed read the 14th Amendment to ban many forms of sex discrimination. But supporters of the E.R.A. say there are still gaps in existing laws, both at the federal and state level, that need to be addressed comprehensively.
How did the amendment stall, and come back to life?
Amendments to the Constitution require the assent of three-quarters of the states — these days, 38 out of 50 — to take effect. When Congress passed the amendment in 1972, it set a deadline for reaching that goal — originally 1979, later extended to 1982. But only 35 states ratified the amendment in time, in large part because of an opposition campaign led by Phyllis Schlafly, a proudly anti-feminist Republican.
There the issue lay until 2017, when a Democratic state senator in Nevada, Pat Spearman, persuaded the Legislature to ratify the amendment, even though the deadline had long passed. That move revived interest across the country, and Illinois followed suit in 2018. An effort in Virginia fell short a year ago, but after Democrats won in November, they promised to try again.
Is Virginia’s assent enough to get to 38 states?
That’s a bit cloudy. Virginia is the 38th state to approve the Equal Rights Amendment, but over the years, five of those states — Idaho, Kentucky, Nebraska, South Dakota and Tennessee — have voted to rescind their ratifications, and it is possible that opponents would challenge the amendment on that basis.
They would not have precedent on their side. After the Civil War, several states tried to take back their ratifications of either the 14th or 15th Amendments, but they were counted in the Yes column anyway, and all of those states later re-ratified the amendments.
What about the deadline?
That is the big question now. It could be repealed, or challenged in court, or both.
Most amendments to the Constitution have not had explicit ratification deadlines. The most recent one, the 27th, had been pending for more than 200 years before it was finally ratified in 1992.
Supporters argue that the deadline for the E.R.A. is unenforceable because it is stated only in the preamble to the amendment, and not in the amendment itself.
The Supreme Court said in 1921 that amendments had to be ratified within a reasonable time after passage, and that Congress had the authority to set a deadline, as it has almost always done since then. But in 1939, the court ruled that the question of whether ratification of an amendment was timely and valid was “non-justiciable” — in other words, it was up to Congress, and none of the courts’ business.
Congress extended the deadline for the Equal Rights Amendment once — by three years — and supporters say it could do so again, or repeal the deadline entirely. A bill to do that was introduced in the Democratic-controlled House in April and attracted broad support. It would also have to pass the Republican-controlled Senate, where its prospects are less clear, though it has sponsors there from both parties.
Legal experts disagree, however, on whether Congress has the power to remove the deadline retroactively, and that issue could land in court.
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