Virginia Ratifies Equal Rights Amendment

The State Capitol of the Commonwealth of Virginia in Richmond (Flickr)

The Virginia Senate and House voted to approve the Equal Rights Amendment (ERA) on January 15, making it the pivotal 38th state required to ratify the amendment. First approved by Congress in 1972, the amendment states that the “equality of Rights under the law shall not be denied or abridged by the United States or any state on account of sex.” However, legal questions surrounding the amendment means it is uncertain if the amendment will indeed be added to the Constitution.

Initially, Congress set a ratification deadline of 1979, which was later extended to 1982, according to NPR; however, by 1982, only 35 states had ratified the amendment, three short of the 38-state threshold required by the Constitution. In recent years, the ERA received renewed attention when Nevada and Illinois ratified it in 2017 and 2018, respectively.

When Virginia’s House of Delegates flipped control from Republican to Democrat in the 2019 election, thanks to a record wave of women being elected, it raised hopes that the amendment might finally be ratified. On the day of the pivotal vote, women’s rights supporters crowded the House gallery as three Republicans, along with every Democrat in the House, approved the amendment by 59-41.

Although supporters are hailing this as a consequential moment, many obstacles remain before the ERA can be formally adopted as the 28th Amendment to the Constitution. The original deadline imposed by Congress has long passed, and five state legislatures have since rescinded their ratification of the amendment. Supporters of the ERA argue that the Constitution does not provide for the rescission of an amendment, and they are therefore invalid.

Thus far, no federal court has ruled conclusively on the question of rescinding an amendment ratification, but the U.S. Department of Justice’s Office of Legal Counsel released a memo on January 8 concluding that Congress had proper authority in imposing a deadline on ratification, and that “the Equal Rights Amendment has failed of adoption and is no longer pending before the States.”

The ruling was issued in response to a lawsuit filed by three states to prevent the U.S. archivist, who is responsible for certifying the ERA’s ratification, from registering the amendment. At the same time, pro- ERA groups are asking another federal court to invalidate the deadline imposed by Congress and allow for the amendment’s ratification. The matter is now largely a legal question and rulings by different federal courts could see the legal battle played out at the Supreme Court.