ERA . . . Yes?

Nearly 100 years ago, the Equal Rights Amendment was first proposed, offering women “equality of rights under the law.” The problem? The ERA was never ratified. Four generations later, however, the amendment is making a comeback and has currently received ratification from 37 out of 38 necessary states. And now Virginia, with its newly-Democratic legislature, is on the brink of becoming the 38^th.

But the long-awaited ERA isn’t a done deal yet. Here, Election Central explores why the issue might be more complicated than it first appears.

What is the ERA?

The ERA is a proposed amendment to the U.S. Constitution which 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.” It seeks to ensure that women receive equal legal protections to men in regards to divorce, property, employment pay, and more. The ERA was first introduced in Congress in 1923, though it didn’t gain much momentum until the rise of the women’s movement in the 1960s. It was approved by the U.S. House of Representatives in 1971, and by the U.S. Senate the following year.

From there, it moved to the states for ratification. But only 35 of the necessary 38 states voted to ratify it. This was largely because of the efforts of an activist named Phyllis Schlafly, who mobilized conservative women against the amendment, telling them that the ERA would mean that women would be drafted into the military and lose many of their legal protections such as alimony payments. As a result, five states voted to revoke their ERA ratifications (this is called rescission), though it remains unknown to this day whether or not they can legally do so.

Interest in the ERA was renewed in recent years, and in 2017, Nevada voted to ratify it, even though the ratification deadline officially passed in 1982. Illinois followed in 2018, bringing the total number of pro-ERA states to 37.

All Eyes on Virginia

In 2019, Democrats gained control of both houses of the Virginia legislature. The Democratic legislators quickly announced their plan to hold a vote on ratification. This would bring the total number of states to ratify the ERA to the required 38, meaning that it had reached the mandated number of approved states to be officially added to the Constitution.

Or so supporters hoped.

Ratification and Rescission

So, assuming that Virginia ratifies the ERA as planned, what’s the problem? The long-expired ratification deadline. Last week, the U.S. Department of Justice posted a legal opinion saying that the ERA has expired and that the states can no longer consider it for ratification. Democrats in both the House and Senate have proposed legislation that would remove the ratification deadline from the ERA altogether. But experts remain divided as to whether or not this move would be legal. Three states (South Dakota, Alabama, and Louisiana) have also filed a federal lawsuit seeking to block the amendment, based on the rescission of five states back in the 1970s. It’s possible that the battle over the ERA could make it all the way to the Supreme Court.

Dig Deeper Has your state voted to ratify the ERA? Use Internet resources to determine your answer.