What’s next for the ERA? One state to 38
On February 21, the Virginia House of Delegates had a chance to make history by making their state the 38th to vote to ratify the Equal Rights Amendment. Just seven days prior to the start of Women’s History Month, they turned down that opportunity. The Virginia legislature, in a 50-50 vote, kept the ERA from being allowed a full vote on the floor of the House.
After a six-month campaign led by VA Ratify ERA that included everything from a 10-day bus tour to lobby days conducted by dozens of advocates, ending in an all-night vigil, the rights of over 160 million women and girls were stalled. The fate of the ERA was never allowed to be in the hands of the full legislature — where advocates were assured it would have passed — due to the decision of two men, Speaker of the House Kirk Cox and Chair of the Privileges & Elections Committee Mark Cole. The will of the 81 percent of Virginians who supported the passage of the ERA, according to a poll by Christopher Newport University, was denied.
The Equal Rights Amendment simply states, “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 language differs slightly from the original legislation drafted by suffragist Alice Paul, which was first introduced in 1923, three years after the 19th Amendment was adopted. Paul saw the ERA as the necessary next step in achieving equal rights in the United States.
The ERA was introduced in every Congressional session from 1923 to 1972, while advocates lobbied for its support. The legislation predictably faced opposition from traditionalists; but it also was resisted for a time by some in the labor and the women’s movements, who feared women would lose protective legislation. However, with the influx of women in the workforce and riding on the momentum of the civil rights movement, the ERA had enough support to easily pass through the House and Senate in 1972.
Unlike with the 19th Amendment, however, Congress added a seven-year deadline in the preamble of the ERA. Despite an initial flurry of ratifications, the ERA was three state ratifications short of the necessary 38 (three-fourths of the states) as the 1979 deadline approached. Activists and legislators hoping to remove the deadline entirely were able to pass legislation to extend the deadline by three years, three months, and eight days. During this time no further states ratified, and in 1982, the deadline expired.
As a result, discrimination on the basis of sex continues to be reviewed at a lesser judicial standard than is applied to cases of discrimination on the basis of race, religion, or national origin under the Equal Protection Clause of the 14th Amendment.
However, in 2017, 45 years after passage by Congress, Nevada became the 36th state to ratify the ERA. In 2018, Illinois followed suit, leaving the campaign currently “one state to 38.”
Virginia is not the only state with an active campaign to become the 38th to ratify the ERA. Arizona, Georgia, Florida, Missouri, North Carolina, and South Carolina have all thrown their hats into the ring by introducing legislation to ratify in their state legislatures. Legislation to remove the deadline has been introduced at the federal level by Rep. Jackie Speier in the House and Senators Ben Cardin and Lisa Murkowski in the Senate. Teams of lawyers are prepared to answer any legal challenges to see ratification through.
The ERA Coalition, an organization that represents over 80 member and lead organizations to support and lead the movement for passage of an equal rights amendment (and where I am DC director and COO), holds weekly calls with state advocates to discuss their grassroots campaign. The good news is that many of the state advocacy leads report that they have strong bipartisan support and the votes to pass the ERA. Why hasn’t it gotten done? The bills are being held up in committee.
ERA Coalition co-president and CEO Carol Jenkins remarked that in Virginia we knew the math was against us but held some optimism that the magic would be there to see the ERA pass. Luckily, we don’t need magic to change the math. We need elections.
Immediately following the vote in the Virginia House of Delegates, lead sponsor Delegate Jennifer Carroll Foy addressed the defeat in a press conference by leading the chant “If we can’t change your votes, we’ll change your seats.” Committees are controlled by party leadership, and no matter the party that’s in power, it is obvious we need new leadership. Leadership that supports equality.
Virginia has off-year elections in November 2019, and we are already preparing to make the ERA a top election issue. Women and our allies will remember who voted against our rights, and we will be working hard to ensure that history does not repeat itself in 2020. We will start in Virginia, but this must happen all across the country and in the federal legislature. We all have the power to create magic, and it lies in our votes.
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