Virginia Votes to Ratify ERA, Setting
Up Likely Legal Battle
By Jon Kamp and
Jess Bravin (WSJ)
Updated Jan. 16,
2020 6:09 pm ET
Court ruling or
congressional action likely needed to override 1982 deadline
Virginia on Wednesday became the 38th state to vote to
ratify the Equal Rights Amendment, teeing up an expected legal battle over
whether the approval counts.
The Trump administration has said the ratification deadline
expired by 1982, a decade after Congress first passed the ERA, which would
enshrine women’s equality in the U.S. Constitution. It may take a court ruling
or congressional action to override that decision and determine whether the
vote in Virginia, which pushed the number of ERA-approving states across a
necessary three-fourths threshold, should lead to amending the Constitution.
Democrats in Virginia, who took control of the state’s House
and Senate when the legislative session started last week, made ratifying the
ERA one of their top priorities.
“For the women of Virginia and the women of America, the
resolution has finally passed,” Democratic House Speaker Eileen Filler-Corn
said to applause and cheers when the measure passed that chamber.
The measure also passed the Senate on Wednesday afternoon
while drawing some Republican support.
Congress proposed ERA in 1972 and, after a later extension,
states had 10 years to secure the three-fourths supermajority needed to ratify
the measure. The ERA would provide that “equality of rights under the law shall
not be denied or abridged by the United States or by any state on account of
sex.”
Virginia’s passage is important because, by crossing the
needed three-fourths ratification threshold, the state has forced the legal
question about whether the ERA’s deadline should stand, said Carl Tobias, who
teaches Constitutional law at the University of Richmond’s School of Law.
“It’s probably true this is going to be resolved in the
courts,” Mr. Tobias said, citing some pending cases arguing both sides of the
issue in federal court. He believes the U.S. Supreme Court may ultimately have
to rule on the matter, a process that can take years.
The Virginia House and Senate ERA bills called on clerks in
both chambers to send the resolution to President Trump, leaders in the U.S.
House and Senate, state lawmakers and the U.S. Archivist who heads the National
Archives and Records Administration. The National Archives is responsible for
certifying ratifications and publishing constitutional amendments.
The U.S. Justice Department’s Office of Legal Counsel, which
advises the executive branch, said in an opinion last week the ERA’s deadline
has long since expired. The National Archives said it would follow that legal
opinion unless a final order from a court says otherwise.
The Constitution doesn’t mention ratification deadlines, and
Congress didn’t initially include them when adopting proposed amendments by the
states. That was underscored in 1992, when Alabama became the 38th state to
ratify an amendment initially proposed in 1789 with the Bill of Rights to limit
congressional pay raises.
The 18th Amendment, proposed by Congress in 1917, was the
first to include a ratification deadline, according to a recent Congressional
Research Service report. Deadlines soon became part of every proposed
amendment, though ratification typically came quickly. It took just 100 days
for states to ratify the 26th Amendment, which lowered the voting age to 18, in
1971.
Because Constitutional amendments are relatively rare, there
is little legal precedent guiding disputes over the state ratification process.
Last month, three states—Alabama, Louisiana and South
Dakota—asked a federal court in Alabama to accept five states’ moves to rescind
ERA ratification. South Dakota was among the states that rescinded their
earlier ERA approval, while Alabama and Louisiana never approved the measure.
It is unclear whether states have authority to rescind their
ratifications. In 1868, Congress counted Ohio and New Jersey as among 29 states
ratifying the 14th Amendment, despite their legislatures voting to revoke their
approval.
The opposing states argue the ERA’s goals have mostly been
achieved through legislation and court decisions. Opponents believe ratifying
the ERA could expand the definition of what it means to discriminate on account
of sex, such as by extending protections to LGBT people, while threatening
abortion restrictions.
Meanwhile, ERA proponents are arguing in another federal
court case, filed in Massachusetts last week, that the ratification deadline
shouldn’t count because it wasn’t included in the text of the ERA itself.
Virginia Attorney General Mark Herring, a Democrat, said
Wednesday, “I am preparing to take any steps necessary to ensure that Virginia
is recognized as the 38th ratifying state, that the will of Virginians is
carried out, and that the ERA is added to our Constitution, as it should be.”
Federal lawmakers have introduced several measures intended
to revive the ERA, either by retroactively eliminating the ratification deadline
or beginning anew the ratification process. Those measures have overwhelming
support from Democrats, but so far only a few Republicans have signed on as
co-sponsors.
On Tuesday, Sens. Ben Cardin (D., Md.) and Lisa Murkowski
(R., Alaska), who have introduced legislation to lift the ratification
deadline, said they disagreed with the Justice Department’s position that the
entire amendment process must start again.
Write to Jon Kamp at jon.kamp@wsj.com and Jess Bravin at jess.bravin@wsj.com