In this column, Due Diligence, erstwhile attorney and GQ staff writer Jay Willis untangles the messy intersection of law, politics, and culture.
Democrats in Virginia had plenty of reasons to celebrate on Tuesday night: By capturing both the state House and Senate, they earned the state's first unified Democratic government since 1993, setting the stage for an expansion of Medicaid, a minimum wage hike, and gun safety measures long stymied by their Republican counterparts. But many observers began preemptively celebrating an altogether different accomplishment, too: the potential ratification of the Equal Rights Amendment (ERA), a constitutional amendment that was introduced in Congress almost a century ago but has remained in legal limbo ever since.
As the election results rolled in, Democratic Senate leader Dick Saslaw wasted no time making his party's intentions clear. "One thing we are going to need to do right away is pass the Equal Rights Amendment in a Virginia," he told supporters to raucous applause last night. "It's high time we include the women of this country in the Constitution." Here's what Saslaw and company mean by that promise—and what it will take for them to fulfill it.
What is the Equal Rights Amendment?
Right now, sex discrimination in the United States is covered by a patchwork quilt of constitutional and statutory provisions that apply with different force in different contexts. Sex-based discrimination in employment, for example, is covered by Title VII of the Civil Rights Act of 1964, and sex-based discrimination in public schools by Title IX in a subsequent amendment passed in 1972. Laws or government actions that distinguish between men and women, meanwhile, are subject to constitutional review under the Fourteenth Amendment's general guarantee of "equal protection of the laws."
This haphazard regulatory scheme leads to predictably unpredictable results. Courts apply a less stringent test to equal protection claims based on sex than they do to claims based on race or national origin, making it easier for the government to get away with treating men and women differently. The judges who preside over sex discrimination matters have lot of leeway to interpret laws and decide cases in ways that undercut the law's promises. Not until the Supreme Court decided Meritor Savings Bank v. Vinson in 1986, for example—more than two decades after Title VII's enactment—did a statute that prohibits gender discrimination officially cover sexual harassment in the workplace, too.
The Equal Rights Amendment is a straightforward proposal that would get rid of these inconsistencies and streamline the legal treatment of sex-based discrimination by constitutional fiat: "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex." Essentially, it would raise the floor for reviewing claims of sex discrimination; with the ERA in place, judges would have to subject laws and state actions that distinguish between men and women to a more skeptical, exacting standard of review.
When was the idea for an ERA introduced?
Suffragist Alice Paul proposed an early version of the proposal in 1923; it took its current form, which uses a similar format to the 15th and 19th amendments prohibiting race- and sex-based denials of the right to vote, beginning in 1943. Lawmakers introduced some version of the ERA in every Congress between 1923 and 1970, and the Senate approved it several times by the constitutionally-required margin.
In the House, though, New York representative Emanuel Celler, a longtime chair of the Judiciary Committee and a proponent of organized labor, was instrumental in preventing it from getting out of committee. Throughout this period, unions and some women's groups opposed the ERA, fearing that its mandatory equality would lead to the erosion of laws that specifically protected women. None other than former First Lady Eleanor Roosevelt signed on to a 1946 statement claiming that the ERA would "make it possible to wipe out the legislation which has been enacted in many states for the special needs of women in industry." Michigan congresswoman Martha Griffiths had to resort to a then-rare procedural mechanism called the discharge petition to bypass the committee and get the proposal to the House floor.
What is the ERA's current status?
Changing the Constitution is hard: The most common method of doing so requires both the House and the Senate to vote to adopt a proposed amendment by a two-thirds majority, and then for three-quarters of state legislatures—38 states—to vote to ratify, or approve, the amendment, too.
Congress, for what it's worth, did its part back in 1972, when the ERA passed the House and Senate with overwhelming majorities and received the endorsement of President Richard Nixon, who would later praise the proposal as critical to "providing an opportunity for women to participate on an equal basis with men in our national life." The Hawaii legislature required only 32 minutes to ratify it after the U.S. Senate's vote became official, and at the time, Indiana senator Birch Bayh predicted to the New York Times that the ERA would be ratified "with dispatch" on a nationwide basis. One year later, 30 of the 38 necessary state legislatures had already approved it.
But momentum stalled after that, thanks largely to the efforts of conservative reactionaries like Phyllis Schlafly, who warned that the ERA could prevent women from receiving their husband's Social Security benefits—and, in a prescient bit of culture-war fearmongering, that it would do away with sex-specific bathrooms, too. (When she died in 2016, the Washington Post noted in her obituary that she "is credited with almost single-handedly stopping the passage of the Equal Rights Amendment.") Only four more states ratified the ERA over the next two years, and a straggler (Indiana) joined them in 1977. At the time, the ERA seemed destined to be stuck at 35 states forever—a so-close-yet-so-far footnote in the annals of the struggle for civil rights in America.
Why is it suddenly back in public discourse?
The 27th Amendment—a rather anodyne constitutional tweak that prohibits Congress from giving itself a raise until after the next election—took effect in 1992. But the process of its enactment was of great interest to ERA supporters, because Congress first proposed it all the way back in 1789, meaning that more than two centuries elapsed between the first and last state legislatures to ratify it. As University of Baltimore law professor Garrett Epps noted in The Atlantic earlier this year, the belated ratification campaign sprang out of a 1982 term paper authored by a University of Texas undergraduate named Gregory Watson, who argued that states could still carry the proposal over the finish line. He got a C. Given that his theory led to the amendment of the United States Constitution a decade later, that grade was probably a bit low.
Supporters of the ERA, who needed a measly three states to endorse the dormant proposal, decided to give this same gambit a try, referring to it as the "three-state strategy" for ratification. At the urging of activist groups like the National Organization for Women, in 2017, Nevada became the first state to ratify the ERA in 40 years. In 2018, Illinois followed suit, leaving the ERA only one legislature short of that all-important 38-state threshold.
Where does Virginia come in?
Virginia has been on the cusp of becoming the 38th and final state for some time now, as its Senate voted to approve the proposal five times over the past eight years, only to watch their efforts die in the House every time. The most recent attempt, in February of this year, failed to clear the House by a single vote. After last night's elections, which yielded a 55-45 Democratic advantage in the House and a 21-19 advantage in the Senate, the ERA is almost certain to clear this final hurdle and at last become enshrined in the Constitution.
What's the catch?
In the preamble to its joint resolution introducing the ERA to the states, Congress included a deadline: The amendment, the preamble said, would take effect if three-quarters of the states were to ratify it "within seven years of its submission." In 1978, Congress voted to push that deadline back three years, hoping for a miraculous late ratification push, but no states signed off on the ERA during that grace period, either, and time ran out in 1982. Moreover, legislatures in five states—Idaho, Kentucky, Tennessee, Nebraska, and South Dakota—have since revoked or withdrawn their earlier ratifications of the ERA, which would make Virginia only the 33rd state to issue its approval, and render last night's celebration a bit premature.
All that said: Legally speaking, it isn't clear whether the shifting deadlines or the quintet of alleged revocations matter. The Constitution does not include any general rule about time limits for proposed amendments, as you might guess from the 27th Amendment's 203-year ratification process. And although the text of some ratified amendments included explicit deadlines, as Epps points out, the preamble to a congressional resolution introducing the ERA to the states is not part of the amendment itself. Under this interpretation, the ERA cannot "expire" on its own terms. If 38 states ratify it and the House and Senate decide to nix the deadline, they could dispose of this problem in short order.
Article V of the United States Constitution also does not include a take-backsies provision that would allow state legislatures to change their minds. During the ratification process the 14th Amendment, for example, New Jersey and Ohio voted to rescind their earlier ratifications while the amendment was still pending, but Congress ignored them and counted their initial votes in its official three-quarters-of-state-legislatures tally. If the five attempted retractions are similarly void, Virginia is back on track to be the elusive 38th ratifying state.
Who decides whether the rescissions are valid?
The Supreme Court, probably. Back when Congress first tried to extend the ERA's deadline from 1979 to 1982, a federal judge in Idaho ruled that this act was invalid, and that states were free to revoke their earlier ratifications as long as the ERA hadn't yet become law. The judge in that case also opined that because Article V requires a two-thirds vote of the House and the Senate in order to put an amendment to the states, any action to extend a deadline would require another two-thirds vote in both chambers, too.
By the time the Supreme Court had the chance to weigh in, though, the 1982 deadline had passed without any states ratifying the ERA in the meantime. Thus, instead of clearing up these complex issues about the validity of legislative retractions and the viability of deadline extensions, the Court decided the question before them was moot. If Virginia passes the ERA, these questions will be very relevant again—and this time, hopefully, the justices will be more forthcoming with some answers.
Assuming Virginia follows through, what are the odds that Congress extends or removes the deadline?
Not great, but also, not zero. In the House, California Democrat Jackie Speier introduced a resolution to extend the deadline that already has 215 co-sponsors—only two votes short of half the Democratic-controlled chamber. In the Republican-held Senate, however, things are going to be trickier. Since Maryland Democrat Ben Cardin and Alaska Republican Lisa Murkowski introduced a bipartisan deadline-eliminating resolution in January, it has netted a grand total of four sponsors.
The hope among supporters has to be that the Senate's muted enthusiasm for the ERA can be fixed with a little PR. If Virginia ratifies the ERA and the House passes its resolution, the spotlight will be squarely on the Senate, where two Republicans—Murkowski and Maine senator Susan Collins—have already signed on to the resolution. With the 2020 election less than a year away, vulnerable blue- and purple-state Republican senators may not be especially eager to declare their de facto opposition to ensuring that the law treats men and women equally.
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Originally Appeared on GQ