If passed, the amendment would cross the 38 state threshold for ratification.
January 14, 2020, 9:12 PM
8 min read
The long-gestating proposal to create an Equal Rights Amendment, or ERA, in the U.S. Constitution could be closer to reality after a Virginia statehouse committee approved a measure Tuesday to bring the amendment to a full vote.
The full Virginia House of Delegates and state Senate are slated to hold votes for ratification Wednesday. If passed, the state would be the 38th in the nation to ratify the amendment, which states "equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex."
A proposed amendment needs at least 38 states' approvals to be added to the Constitution, and advocates have been waiting for the ERA to meet that threshold since Congress passed a resolution for it in 1972.
"The United States has never known what true equality is, and this is a step in the right direction," Carol Jenkins, co-president and CEO of the ERA Coalition/Fund for Women's Equality, told ABC News.
The amendment would provide women across the country with more protections and could be used to help set new laws concerning areas such as equal pay and gender discrimination, Jenkins said. She noted that the amendment has been called for since 1920 and was first introduced in Congress 1923 by activist Alice Paul.
"It's taken almost a century, but it's closer than we have ever been. We're determined to cross the finish line," she said.
Sponsors of the Equal Rights Amendment, State Se. Jennifer McClellan, D-Richmond, left, and Sen. Mamie Locke, D-Hampton, right, hug after the Senate Privileges and Elections committee vote to report the ERA amendment the floor of the Senate during a Committee hearing at the Virginia State Capitol in Richmond, Va., Jan. 9, 2020.
Sponsors of the Equal Rights Amendment, State Se. Jennifer McClellan, D-Richmond, left, and Sen. Mamie Locke, D-Hampton, right, hug after the Senate Privileges and Elections committee vote to report the ERA amendment the floor of the Senate during a Committee hearing at the Virginia State Capitol in Richmond, Va., Jan. 9, 2020.Steve Helber/AP
The road to full amendment's full adoption, however, is still murky as the measure is tied to a previously issued deadline that expired more than 30 years ago. Legal experts predicted that the ERA will have to go through some battles in court.
After Congress passed the amendment's resolution in 1972, it enacted a deadline of seven years for the measure to get its 38-state minimum ratification. The deadline was extended to 1982, but by that time, only 35 states ratified. Three years ago, Nevada ratified the amendment, followed by Illinois the next year.
The U.S. Department of Justice's Office of the Legal Counsel (OLC) released an opinion last week that stated the amendment "is no longer pending before the States," because of the expiration. The National Archives and Records Administration, which has to certify the amendment, said in a press release it would comply with the OLC's opinion save for a court order.
Equal Rights Amendment supporters demonstrate outside Virginia State Capitol in Richmond, Va., Jan. 8, 2020.
Equal Rights Amendment supporters demonstrate outside Virginia State Capitol in Richmond, Va., Jan. 8, 2020.Steve Helber/AP
ERA proponents contend that the deadline for the measure's passage was written in the resolution passed by Congress in 1972, but not in the wording of the amendment itself that states are ratifying. Furthermore, advocates say Article V of the Constitution explicitly states that an amendment proposal be ratified once the 38-state limit is met, with no stipulation for deadlines.
Saikrishna Bangalore Prakash, a professor at the University of Virginia School of Law, told ABC News it is likely that a lawsuit will be filed against the National Archives that will compel them to ratify the amendment if the threshold is met.
Prakash, who published a paper on the ERA in the Harvard Law Review last year, said contentions against the ERA deadline have grown since the 27th Amendment (on congressional pay) was passed in 1992, more than 200 years after Congress made a resolution for its adoption.
"The same argument could be made for the ERA," he said.
Virginia's Attorney General Mark Herring said in a statement last week in response to the OLC opinion that he would fight any opposition to the ERA passage, according to The Associated Press.
"Any reliance on the Office of Legal Council's memorandum improperly injects the executive branch into the amendment process," Michelle Kallen, deputy solicitor general for the Virginia AG's office, testified during the Virginia House of Delegate's Privilege and Elections Committee Tuesday.
There are currently bills in the U.S. House and Senate that call for the elimination of the deadline from the ERA resolution, and those would prevent any legal barriers for the amendment, Maria Vullo, the chair of the board of the ERA Coalition, told ABC News.
"The one thing we are advocating strongly is to eliminate this argument that there was this time limit for ratification," Vullo said.