Virginia’s Tuesday election – with Democrats taking full control of state government for the first time in 26 years – not only has implications for the 2020 presidential election but may tip the scales in a fight that’s been waged for nearly a century: ratification of the Equal Rights Amendment (ERA). This amendment, written in 1923 and languishing in the halls of government on and off since, declares sex discrimination a federal crime when it comes to divorce, property, employment, and other matters. As of now, the right to vote is the first and only right that the constitution affirms equally for women and men. (Yes, really.)
After Illinois became the 37th state to ratify – or confirm – the ERA in May 2018, only one more state had to follow suit in order to reach the requisite three-fourths needed for it to become federal law. Groups have been pushing for Virginia to be that state, and with Democrats winning power of the state in Tuesday’s election, it may finally happen.
Why Virginia? Traditionally a red state, it has become more blue recently, and, over the past eight years, the state Senate voted to ratify the ERA five times. But the House quashed the effort each time. The latest attempt, in February this year, lost in the House by just one vote. Democratic leaders now say it’ll be a top priority to try again.
“One thing we are going to need to do right away is pass the Equal Rights Amendment in Virginia,” State Senate Democratic leader Dick Saslaw said to a crowd in Richmond on election night, CNN reports. “It’s high time we include the women of this country in the Constitution of the United States.”
Kati Hornung, campaign coordinator for VAratifyERA, said in a press release: “Women have been demanding constitutional equality for centuries, and with Virginia set to make history as the 38th state to ratify the ERA, you better believe that’s cause for a major celebration.”
So what could this mean for women nationwide?
For the first time in American history, sex would be considered a “suspect classification” – like race, religion, national origin, and citizenship status – which the Legal Information Institute of Cornell Law School defines as “a class of individuals that have been historically subject to discrimination.” Essentially, Hornung explained, “the Amendment will provide a tool to challenge sex discrimination by the government.”
Currently, courts apply a more stringent test to equal protection claims based on suspect classifications than claims based on sex. Under the ERA, state actions and laws that differentiate between women and men would come under a more exacting standard of review.
“To actual or potential offenders who would try to write, enforce, or adjudicate laws inequitably, the ERA would send a strong preemptive message: the Constitution has zero tolerance for sex discrimination under the law,” writes Roberta W. Francis, ERA education consultant at the Alice Paul Institute and founding chair of the ERA Task Force at the National Council of Women’s Organizations, on EqualRightsAmendment.org.
For example, if you were accusing an employer of sexual discrimination, such as receiving lower pay than a male coworker or being sexually harassed, it’s much harder for you to prove that the harassment violated your rights under current laws than if you were accusing your boss of discrimination based on race or religion. With the ERA in place, your case would receive the same strict scrutiny as a claim based on race or religion.
It may come as a shock that this isn’t the federal legal standard already, but the fight for the ERA has been long and complicated. According to the Alice Paul Institute, after women’s rights activist and suffragist Alice Paul wrote the first draft in 1923, the amendment was introduced in every session of Congress until 1972, when it passed. Then it went to the states for ratification. But there was a hitch: 38 states needed to ratify the ERA within a scant seven years.
Although 22 states did so in the first year, momentum soon slowed thanks to conservative opposition groups and, in particular, anti-feminist Republican Phyllis Schlafly, who rallied housewives to oppose the amendment. Even with a Congressional deadline extension until 1982, the ERA came up three states short.
But the battle wasn’t over. When ERA proponents saw that the 27th Amendment (one regarding salary increases for members of Congress) was finally ratified by states in 1992 – 200 years after Congressional approval – it gave them hope that, perhaps, they could still win by getting the necessary ratifications, despite missing the deadline. So they continued to push for ratification by 38 states.
Now, the fight to ratify the ERA seems closer than ever to victory – and all eyes on are Virginia to make it happen.
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