The slogan in the 1970s was ERA Now. But what happens when it’s ERA later?
In this case, much later. Virginia’s purported ratification of the Equal Rights Amendment last month created a legal mess. Among the questions raised is whether the equality promised for two sexes would apply to the growing LGBTQ movement.
“What is difficult in the case of the Equal Rights Amendment is that the words are essentially meaningless,” said Rob Natelson, who heads the Constitutional Studies Center at the Independence Institute. “The amendment is so poorly drafted and so general it’s fair to say it’s meaningless.”
The amendment, which has been kicking around for nearly a century, cleared Congress in 1972 and headed to the states for ratification. It stalled out, but backers in recent years have tried to revive it, even though deadlines for ratification expired decades ago.
Virginia says it is the critical 38th state to ratify the ERA with its General Assembly vote and insists the deadline is meaningless. The Trump administration says Virginia is wrong.
This week, so did Supreme Court Justice Ruth Bader Ginsburg, an ERA supporter who nevertheless said the amendment is dead and supporters need to restart the process.
“I would like to see a new beginning,” she said Monday.
The ERA would declare equality of rights on “account of sex.”
What that means exactly is contentious. If the amendment is added to the Constitution, it would create a morass of legal questions — chief among them whose vision of sex would control it.
When Congress debated and approved the ERA in 1972, equality of the sexes was understood to mean men and women. The gay rights movement was nascent, and transgender rights was only notional. Neither figured in the debate in Congress nor in the statehouses that ratified it.
So what’s a court to do once the first cases are presented?
“Do we look at the intent of, let’s say, Connecticut, in ratifying the measure back in the 1970s, or do we look at what Virginia does in 2020? No clue. No clue. And in fact, it’s something the law is unequipped to deal with,” Mr. Natelson told The Washington Times.
LGBTQ activists are expecting big things from the amendment.
When Virginia’s legislature debated last month, a key backer was Delegate Danica Roem, a Prince William Democrat and pioneering transgender lawmaker, who said the ERA would bring sexual minorities out of the shadows and give them protections in hiring and firing and wage equality.
“I know what it’s like to be singled out. I know what it’s like to be stigmatized because of who I am,” she told colleagues as she kicked off the floor debate in the House of Delegates.
Other supporters of the ERA say they are content to let the courts define the amendment.
Analysts said the conflicting understandings of the ERA is one reason that Congress attached a deadline in 1972. A preamble said the amendment would die unless three-fourths of states ratified it within seven years.
Similar deadlines were written into seven other amendments that are now part of the Constitution.
As the 1979 deadline neared, just 35 of the needed 38 states had ratified the ERA. Congress approved legislation adding three years to the deadline, but no more states joined.
Mr. Natelson said that should be the end of it.
“When a state ratifies an amendment that has a deadline on it, the state isn’t just ratifying the text of the amendment. In other words, the state is not just saying we agree with this text. The state is saying we agree with this text if 37 other states agree with it in the seven-year limit,” he said.
Adding to the complication, five states that ratified the ERA have voted to revoke their approval.
No one is sure whether revocation is legal. If so, the ERA is five states short, even if Virginia is counted with Nevada and Illinois, the other two states to ratify the amendment after the deadline.
South Dakota, one of the states that voted to revoke ratification of the ERA, has filed a lawsuit demanding that a judge order the National Archives to recognize its revocation. The National Archives is tasked under the law with recognizing when an amendment has been added.
The Justice Department last month weighed in with a legal opinion saying the 1979 deadline is real and the ERA is dead. It did not rule on the legality of revocations.
The National Archives said it is bound by the Justice Department’s opinion.
Virginia then filed a lawsuit asking a judge to order the archivist to recognize the amendment.
House Democrats will throw a wrench into the works this week when they attempt to pass a bill removing the ERA’s deadline altogether. The bill is unlikely to clear the Senate.
ERA backers say the concept of equality of rights can’t expire so the deadline is invalid. They point out that the 19th Amendment, which gave women the right to vote, did not include a deadline, but the 18th and the 20th to 26th amendments did.
One amendment to the Constitution was ratified 200 years after it was proposed.
What is now the 27th Amendment was part of the original 12 amendments sent to the states in 1789. Only 10 of those were ratified and became the Bill of Rights. The other two were still live, and in the 1980s a movement developed to ratify an amendment relating to when Congress could raise its pay.
Gregory Watson, the leader of that movement, said there is some precedent on how courts should treat amendment deadlines and revocations. A 1981 federal district judge ruled that Congress couldn’t adjust a deadline and that states could change their minds.
That ruling was stayed by the Supreme Court in 1982, but not reversed or vacated, and the case became moot when the ERA’s extended 1982 deadline passed without ratification.
Should the ERA beat the long odds and be recognized as an amendment, the definition of “sex” will remain tricky.
The Supreme Court could shed light based on a series of cases it is hearing that deal with the meaning of “sex” in the antidiscrimination provisions of the Civil Rights Act of 1964, which prohibits unfair hiring practices.
Like the ERA, the authors of the Civil Rights Act didn’t have gay rights or transgender issues in mind when they wrote it, but some courts say the meaning has to be expanded.
The justices heard oral arguments in October.
“We will get a lot of guidance from them in terms of how they interpret it because we will understand whether they will stick to what the meaning was when the legislation passed or how the meaning has evolved over time — which is the central question of the ERA,” said Mary Frances Berry, former chairwoman of the U.S. Civil Rights Commission and a professor at the University of Pennsylvania.
Yet she also said there is a sense that the big battles of the ERA have been won on other playing fields, particularly if the job discrimination case turns out the way ERA supporters want.
“I think most of the issues that were raised at the time have been settled one way or the other. They’re not salient in that sense,” she said.
Still, she said, the ERA is worth ratifying: “It’s wonderful to be in the Constitution.”