For those of us who came of age at a time when the ratification of the Equal Rights Amendment seemed as inevitable as it was overdue, the ERA’s sudden revival in the Trump era has been a marvelous development. Today the Virginia Senate ratified the amendment, which means the Old Dominion is halfway through the process of becoming the crucial 38th state — three-fourths of the 50 states — to get onboard since Congress passed the ERA in 1972.
The amendment’s language is extremely simple:
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.
Its practical implications may depend on what Congress does to implement it, but in effect, it would serve as a constitutional backdrop to more specific protections of gender equality, and as an ongoing basis for challenging discrimination in the courts.
The ERA was long thought to be comatose, if not dead, after only 35 states ratified it prior to the expiration of a 1982 ratification deadline set by Congress. But inspired by doubts about the constitutionality of ratification deadlines, and perhaps some defiance toward the manifest pigginess of the 45th president, momentum for the ERA resumed, with Nevada ratifying it in 2017 and Illinois in 2018. As the Washington Post notes, Virginia has gotten to this point but no further repeatedly:
The legislation died last year in committee in both chambers, even though a majority of lawmakers in both the House and the Senate had signed on as co-sponsors. The full Senate has passed it five times in the past eight years, but it has never cleared the House.
Perhaps the big shift toward Democrats in 2017 House elections in Virginia, and the strong possibility that Democrats could take control of that chamber this November, could motivate Republicans to stop their obstruction of the ERA. It’s certainly a good sign that seven Republican senators joined all 19 Democrats in voting for the ratification in the upper chamber.
If Virginia does ratify the amendment, the legal maneuvering will begin, as the New York Times noted last year:
Expect a legal showdown, intense lobbying and constitutional fireworks …
[O]rganizers would lobby Congress to recognize the 38 total ratifications.
How would that work? A 2013 report by the Congressional Research Service, a policy research branch, said that Congress could simply vote to change the old deadline.
That would obviously be a tough row in Mitch McConnell’s Senate, and even if Congress took that step, there would be litigation against it. The whole thing could wind up in the Supreme Court.
But the debate would be interesting, and would offer the Grand Old Party yet another opportunity to recant its abandonment, under the influence of the conservative movement, of an ancient party tradition of supporting an ERA, as Katie Kilkenny observed in 2015:
Republicans installed the first woman in Congress and shepherded the 19th Amendment through a Republican-dominated Congress in 1919. Senator Charles Curtis and Representative Daniel R. Anthony Jr. (both, R-Kansas) were the first to introduce the Equal Rights Amendment into their respective Congressional sessions in 1923, and in the midst of an embattled fight to pass it over the next few decades, President Dwight Eisenhower (R) would be the first president to call a joint session of Congress to get the bill passed.
And Republicans began putting the ERA into party platforms in 1944, and didn’t definitively begin rejecting the amendment until Ronald Reagan’s ascent to the leadership of the party in 1980.
At a time when women are repudiating Republicans at the polls to a remarkable extent, it would be a good time for the GOP to wake up and embrace equality as sufficiently central to American principles to merit inclusion in the Constitution.
