- The Washington Times - Monday, January 27, 2020

Virginia became the 38th state to approve the Equal Rights Amendment to the Constitution with the legislature’s vote Monday — but it’s far from clear that the Constitution now has a 28th amendment.

Instead, the 27-12 vote by the state Senate and the 58-40 vote in the House are the kickoff to what’s expected to be years of litigation, as ERA backers fight an uphill battle to convince skeptical courts that an amendment everyone thought had died 40 years ago can be revived.

The amendment’s supporters weren’t daunted by the challenge, insisting they made history with the vote.

“Finally, women have a place in our nation’s founding document,” said House Speaker Eileen Filler-Corn, the first woman to hold that post in the Virginia House’s over 400 year history.

It remains to be seen whether the vote is more than symbolic.

While 38 states have voted to ratify the amendment, five of them have since voted to revoke that ratification. ERA backers say those revocations aren’t legal, though many legal scholars say they are.

An even bigger hurdle for the ERA is the way Congress proposed the amendment in 1972. Lawmakers imposed a seven-year deadline for ratification, but not enough states had ratified it by that deadline. A three-year extension also expired without the measure crossing the threshold.

The Justice Department, in an official opinion earlier this month, said that means the ERA is dead. Its opinion is binding on the National Archives, which is charged with deciding whether to register a new amendment.

ERA backers say the deadline wasn’t part of the actual ERA, but rather in supporting legislation, so they say it shouldn’t count.

Democrats in Congress are hoping to give Virginia a boost. They’ve proposed legislation that would retroactively delete the deadline from the 1972 legislation proposing the ERA to the states.

Legal jousting already had begun even before Virginia’s vote, with a trio of GOP state attorneys general suing to ask courts to make clear the ERA is dead. ERA supporters countersued.

The matter is likely to reach the Supreme Court, where even liberal Justice Ruth Bader Ginsburg has said the ERA is dead, and any effort must start with a new amendment from Congress.

The Equal Rights Amendment reads: “Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex.”

What that means in practice also is heatedly debated.

State Sen. Amanda Chase, Chesterfield County Republican, said those touting the ERA as a solution to inequality of women “look naive and uneducated.” She pointed out the amendment doesn’t actually use the word “women,” but rather protects “equality of rights … on account of sex.”

“The vague, poorly written language of the ERA does not allow any distinction to be made between men and women even when it makes sense to do so,” Ms. Chase said.

The ERA was first introduced in Congress in the 1920s, but it didn’t get approval — which requires a two-thirds vote of each chamber — until 1972. It then went to the states, where three-fourths need to ratify it to become effective.

Thirty-five states had ratified by the original 1979 deadline — including the five that revoked their approval. No new states ratified it in the three additional years Congress tacked on.

But in 2017 Nevada belatedly ratified, and Illinois followed in 2018. Activists then turned to Virginia, looking for a 38th.

The GOP, which controlled the chamber last year, bottled the amendment up in the House. But Democrats won control of both the state House and Senate in November’s elections, and made the ERA a priority for their new majority.

Both chambers had voted earlier this month on separate — though equal — versions of the amendment. On Monday, each approved the other’s legislation, and the ratification was complete.

Lawmakers said Gov. Ralph Northam plans to sign the ratifications, though it would be symbolic. The was effective after the Senate voted Monday.

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