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ERA Won’t Go Away

February 20, 2019

“Yes Virginia, there is an ERA”

“One State to 38!”

These slogans adorned the banners and signs that ERA supporters brought to the Virginia State Capitol at the beginning of the General Assembly’s legislative session this January. ¹ ERA activists are hoping that this year’s session would include a floor vote on ratification of the Equal Rights Amendment, born in 1923, passed by Congress in 1972, but has lingered in ratification limbo ever since.

The history of the ERA is long and winding. After the 19thAmendment guaranteed women’s right to vote, suffrage leaders determined that the next step was full legal and political equality.  Suffrage leader Alice Paul drafted the ERA in 1921 and it was introduced to Congress in December of 1923. Almost 50 years later, in 1972, the amendment was approved by Congress and moved into the ratification phase.  At this point, the process became more complex.  The Amendment was initially given a passage deadline of seven years.  If 38 states did not ratify by 1979, the amendment would die.  In 1978, the amendment was three states short of ratification and supporters pointed out that the deadline was written into the preambleof the amendment, not the amendment itself. This loophole allowed for an additional three years for ratification.  By this point, there was a large political backlash against the women’s rights movement and the three states never materialized. ²

What is the Equal Rights Amendment?: This overview from Washington, DC’s ABC News affiliate helps answer the question.

The ERA seemed lost to time until 1992, when a 203 year old bill outlining restrictions on Congressional pay was passed as the Twenty-Seventh Amendment. Supporters of the ERA started to build political support for the “Three-State Strategy”, claiming that if three additional states ratify the Amendment, Congress can retroactively remove the deadline on the amendment. In essence, the Twenty-Seventh Amendment gave a precedent for Congress to change or eliminate deadlines to ratification and new hope to ERA supporters. In 2017, Illinois ratified the ERA followed by Nevada in 2018.  The next state to ratify could secure the 38 states needed and bring the question of deadlines right to the feet of Congress.

Back in Virginia, the state Senate approved a floor vote on ratification but the vote was then denied by the House of Delegates Committee on Privileges and Elections.  With this denial, the Virginia General Assembly does not have a way forward to vote on the issue of ratification, and the Amendment is still one state short of passing.³

The debate over the Equal Rights Amendment has brought up a host of complicated questions that both supporters and opponents have trouble grappling with.  Among these questions: Should women be included in Selective Service? What is the court’s role in determining the presence of gender discrimination? How will this affect sex-based labor protections such as protections for pregnant workers?  Among all of these, the questions of the proper process to approve Constitutional Amendments looms the largest. The amendment seems to die, only to be resurrected by new precedents extending the procedural timeline.  Although it has been almost a century since its introduction to Congress, ERA simply won’t go away.

Discussion Questions

  1. Should a timeline be imposed on ratification of constitutional amendments? Should there be any special circumstances for a timeline?
  2. The process of passing constitutional amendments is difficult and time consuming. What is the rationale for this? What is the benefit of passing an amendment instead of federal law?
  3. James Madison wrote in The Federalist Papers, Number 43 “[The Constitution] equally enables the general and the State governments to originate the amendment of… as they may be pointed out by the experience on one side, or on the other.” There are two paths for amendments to be proposed: Passed by Congress or submitted by state conventions.  Since the founding of the nation, ALL amendments have been Congress-led instead of state-led.  Why do you think this is? If the three-state strategy is not successful, do you think a state convention would be appropriate?


Featured Image: Politico.com 
[1]Geen, G., & Zernik, A. (2019, January 10). Virginia vote moves Equal Rights Amendment closer to ratification. Retrieved from https://www.delmarvanow.com/story/news/local/virginia/2019/01/10/virginia-vote-moves-equal-rights-amendment-closer-ratification/2534584002/
[2]Epps, G. (2019, January 20). The Equal Rights Amendment Strikes Again. Retrieved from https://www.theatlantic.com/ideas/archive/2019/01/will-congress-ever-ratify-equal-rights-amendment/580849/
[3]Wilson, P. (2019, January 22). House panel rejects ERA on 4-2 vote after Va. lawmaker spars with longtime activist. Retrieved from https://www.richmond.com/news/virginia/government-politics/general-assembly/house-panel-rejects-era-on—vote-after-va/article_45e46ed7-fc84-5e5a-a68d-4dfabdb487c3.html


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