Virginia reaches long-awaited milestone by ratifying Equal Rights Amendment, but legal fight looms
Virginia on Monday finalized its ratification of the Equal Rights Amendment, a potential milestone in the century-long effort but one that faces significant legal obstacles.
The commonwealth could be the 38th state to ratify the ERA, which would ban discrimination on the basis of sex and guarantee equality for women under the Constitution, but there are big legal questions as to whether that ratification stands. The approval of three-fourths of state legislatures are required to ratify an amendment, though several states that formerly passed the ERA decades ago have since rescinded their support, and opponents point to a since-expired congressional deadline in arguing that the window for ratifying the amendment has closed.
The US House will vote on February 10 on whether to rescind that deadline, according to Majority Leader Steny Hoyer’s office.
Progressives, however, reject those arguments, and passing the ERA has been an urgent priority for Virginia Democrats, who control both houses of the state legislature and passed the ERA in both chambers earlier this month.
Cheers broke out in the chamber after the state Senate voted 27-12 on Monday to pass the state House of Delegates resolution to ratify the ERA. The House had passed the resolution on January 15. Later Monday, the State House of Delegates adopted the state Senate’s resolution by a vote of 58-40.
The process does not require the approval of Gov. Ralph Northam, a Democrat who has voiced support for the effort.
The state will transfer its ratification documents to the archivist of the United States, David Ferriero. The Justice Department, responding to a lawsuit brought by three conservative-leaning states, has argued the deadline to ratify the ERA has expired and the matter is no longer pending, effectively binding the archivist from taking action. Virginia Attorney General Mark Herring, a Democrat, has told CNN he plans to “use every tool at my disposal to make sure it’s added to the Constitution.”
There are efforts in the US Congress to restart the ratification process and to eliminate the deadline. House Democrats are working to extend the deadline for ratification, though the chances of passage are unclear in the Republican-led Senate.
Congress passed the ERA in 1972, sending the amendment to the states to ratify within a seven-year window before later extending the deadline to 1982. By then, only 35 states had ratified the amendment — three-fourths of state legislatures, or 38 out of 50, are needed to amend the Constitution — though five that had earlier passed it had by then rescinded their support. In subsequent years, two more states — Nevada in 2017 and Illinois in 2018 — have ratified the ERA.
Opponents of the amendment say the congressional imposed deadline to ratify the ERA has long expired and point to five states that have rescinded or withdrew their ratifications within that deadline. ERA proponents argue that the deadline can be removed because it’s not in the body of the amendment’s text and that rescinding a ratification has no legal validity.
