Virginia moved Thursday toward becoming the 38th state to approve the Equal Rights Amendment, checking the final box needed, activists argue, for ratification.
At the same time that Virginia is nearing approval, though, the Trump White House set up a political and legal obstacle, leading proponents to concede that they will have to wait longer for full ratification — until a Democrat takes the presidency.
A state legislative committee voted 10-5 to approve the amendment, allowing the full Democrat-led statehouse to take it up, where it is expected to pass. “It’s time for Virginia to make history and put women in the US Constitution!” tweeted Democratic Sen. Jennifer McClellan of Richmond.
But the state’s move comes just days after the Justice Department released a legal opinion stating that the amendment was a dead letter because the deadline to ratify it passed in 1982.
While ERA activists disagreed with the opinion, noting that the constitutional amendment has been declared dead numerous times already, they acknowledged that it would mean they will need to be patient for longer.
Katie Hornung, campaign coordinator for the activist group VAratifyERA, told the Washington Examiner that the DOJ’s stance reflected only the current White House’s opinion. “The Constitution is enduring versus DOJ opinions that come and go with administrations,” she said.
Jayne Mansbridge, professor of politics at the Harvard Kennedy School and author of Why We Lost The ERA, a history of the amendment, told the Washington Examiner that the DOJ had viewed the matter differently in the past. In the memo, the department’s Office of Legal Counsel had to “disagree” with the findings of a previous Office of Legal Counsel that Congress may extend a ratification deadline on an amendment, she argued.
“It seems absolutely clear to me that the Constitution leaves Congress the power to create deadlines, extend deadlines, and remove deadlines,” Mansbridge said.
The Equal Rights Amendment would ban discrimination on the basis of sex. Proponents see it as crucial to ensuring women’s rights under the law. Critics argue it would put too much power in the hands of courts. The amendment passed Congress in 1972, and 35 states had ratified it by 1977, but the effort ran out of steam after that. The next two states, Nevada and Illinois, didn’t act until 2017 and 2018, respectively.
The amendment originally had a deadline of 1977, which was then extended to 1982. Last year, the House voted to extend the deadline, but the DOJ memo argued that a deadline couldn’t be extended after the fact.
The ERA faces other novel constitutional questions. Five states that ratified the ERA subsequently tried to rescind their approval — a maneuver that the amendment’s backers claim is not legitimate. Since constitutional amendments are so rare, there is little precedent to address the issue. Both sides expect the ERA’s status will be the subject of future court fights.
