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The war to ratify the Equal Rights Amendment just took a hit. But the battle isn't over.

Only one more state needs to ratify the Equal Rights Amendment, which aims to ban sex discrimination.

by Carter Sherman and Emma Fidel
Feb 22 2019, 5:36pm

Only one more state needs to ratify the Equal Rights Amendment before federal lawmakers can even think about adding it to the U.S. Constitution. Virginia legislators just came close — and failed.

Virginia had sought to become the 38th and final state needed to ratify the Equal Rights Amendment, which aims to guarantee that constitutional rights apply equally to everybody, regardless of sex. Advocates and opponents are split over what impact, exactly, the ERA would have, but laws governing pay equity, abortion access, and gender-based violence hang in the balance.

With only two days left in their legislative session, House Republicans blocked a procedural bill on Thursday that would’ve allowed the full chamber to vote on the ERA.

Virginia’s vote was hardly the first time ERA advocates have lost a battle, and they’re sure it’s not the end of the war. Now, activists across the country are trying to harness the national spotlight on women’s rights and convince their own lawmakers to ratify the ERA. Organizers in Arizona say they already have the votes to become the 38th state to ratify, but Republican leaders are blocking the legislation from getting to the floor. Efforts to ratify the ERA are also underway in North Carolina, Florida, and Missouri.

“Laws change as quickly as legislators change their mind, and Supreme Court decisions can always be reversed. But when you have women’s rights equal to men enshrined in the United States Constitution, that is when we are truly equal under the eyes of the law,” Virginia state Delegate Jennifer Carroll Foy, a Democrat and the sponsor of the bill to ratify the ERA, told VICE News after the vote. The amendment could force judges to apply the strictest level of scrutiny to lawsuits involving sex discrimination — the same scrutiny that claims of racial discrimination now receive.

“It holds promise for the law to reach into a lot of places where women are — maybe not by the letter of the law but in effect — being discriminated against,” said Kelsy Kretschmer, an Oregon State University assistant professor of sociology who’s written about the ERA.

Even if a 38th state succeeds in ratifying the ERA, though, the United States would find itself in what one legal scholar called “uncharted political territory.” Ratifying a constitutional amendment was never meant to take this long, and states have now missed the deadline Congress set. Twice.

“We still don’t have equality”

After passing the ERA in 1972, arguably at the height of the women’s rights movement, Congress initially gave states until 1979 to ratify the language. But lawmakers eventually extended the deadline until 1982.

By then, a well-organized conservative groundswell effectively had halted the ERA’s momentum. Anti-ERA activists argued that the amendment would force women into combat positions in the military, legalize same-sex marriage, and stop requiring men to support their wives and children. By 1982, three more states still needed to ratify the amendment.

That didn’t change for more than three decades.

Then, in 2017, the Nevada state legislature voted to ratify the ERA, even though the deadline had passed. A year later, Illinois also ratified the amendment. The ERA was suddenly just one state short of the 38-state, or supermajority, threshold needed to trigger a Constitutional change.

“I do think that the push in those states was out of anxiety about what was happening to women, even before #MeToo broke the surface,” Kretschmer said. The 2016 presidential election — and the victory of a man whose attitudes toward women demonstrated what Kretschmer called “really high levels of hostility” — particularly galvanized women.

Women’s rights, obviously, now look very different than they did in 1972. But proponents of the ERA contend that the Constitution still needs to ban sex discrimination and help shape legislation and Supreme Court decisions.

"It holds promise for the law to reach into a lot of places where women are — maybe not by the letter of the law but in effect — being discriminated against."

“This is something we need to get done because we still don’t have equality,” Bettina Hager, chief operations officer of the Equal Rights Amendment Coalition, a partnership of organizations working to enact the ERA. She wasn’t even born when Congress passed the ERA, but the 2016 election cemented the amendment’s importance for her. “It’s asking the question: Are women equal in the society, and do we need to do something? Which, obviously we do, because we saw what happened.”

Virginia’s vote took place alongside several political crises for the state, including one involving sexual assault. But the procedural bill only failed by a single vote, and Delegate Carroll Foy plans to make sure that voters — who go back to the polls for state elections this year — know it.

“I put my hair in a bun, I tie my shoelaces, and I go out and get to work because I can guarantee this is gonna be the number one issue for a lot of Virginians,” she said. Eighty-one percent of Virginia voters do support ratification, according to a nonpartisan Christopher Newport University poll.

“When they didn’t ratify it last year, everyone was disappointed,” Cynthia McNiel, an ERA advocate in Missouri, said of Virginia. “But we know this campaign was exponentially better than the campaign they ran last year. We do see the hope, we do see the light at the end of the tunnel, and we do believe it’s going to pass eventually.”

The pressure is now on in Arizona. The state’s legislative session ends in mid-April, and like in Virginia, its ERA ratification bills are stuck in purgatory: Republican leaders have declined to give the legislation a committee hearing in the Senate or assign it to a committee in the House, according to Dianne Post, an ERA advocate in Arizona.

“Uncharted political territory”

If the ERA does pass one day, the last three states to ratify still missed the 1982 deadline set by Congress. And the U.S. Constitution offers few answers about how officials should handle that. “We are sort of in uncharted political territory there,” said Robinson Woodward-Burns, an assistant professor of political science at Howard University who has also written about the ERA.

Because the ratification deadline wasn’t included in the text of the ERA itself, some legal scholars have argued that states never agreed to a time limit. That might mean the ERA could seamlessly enter the Constitution. Congress could also extend the deadline, and some lawmakers have already proposed legislation to do just that.

But that idea likely won’t gather much traction in a Republican-controlled Senate. Kretschmer, the sociology professor who’s written about the ERA, suspects that a national fight over the amendment could energize conservatives around two already white-hot topics: abortion and gender segregation in public spaces, like bathrooms and locker rooms.

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Advocates for the Equal Rights Amendment stage a "die in" outside Virginia House Speaker Kirk Cox's office at the Capitol in Richmond, Va. Thursday Feb. 14, 2019. Two of the women were taken away by Capitol Police. (AP Photo/Alan Suderman)

During the last few minutes of the debate over Virginia’s resolution, Republican House Majority Leader C. Todd Gilbert warned lawmakers that activists could use the ERA to sue and undermine restrictions on abortion. He pointed to the example of Alaska, where the state supreme court ruled to block an anti-abortion law on Friday and cited a clause of the state constitution that declares everyone’s rights, regardless of gender, are equally protected.

“The proponents are trying to pretend that they only need one more state in order to push ERA into the Constitution. I think that is a cheat on 47 states that have not debated ERA in 50 years,” said Anne Schlafly Cori, whose mother, Phyllis Schlafly, was the chief architect behind the successful anti-ERA movement in the ’70s. Schlafly Cori is now the chairman of the Eagle Forum, a conservative group that opposes the ERA.

If all 38 states ratify the ERA, its opponents are all but certain to sue — just as its supporters would likely sue if Congress refused to extend the deadline and halted the ERA. And of course, neither Congress nor the states have the power to change each other’s decisions.

“That would leave the amendment essentially in a legal limbo that was not foreseen by framers of the Constitution,” Woodward-Burns said.

Cover image: Jessica Lenahan, center, a domestic violence survivor, and Carol Jenkins, right, of the Equal Rights Amendment Task Force, attend a news conference at the House Triangle on the need to ratify the Equal Rights Amendment on June 6, 2018. (Photo By Tom Williams/CQ Roll Call) (CQ Roll Call via AP Images)