Virginia ratified the ERA, but its Constitutional potential is unclear

Mayor Reed said the despite the ratification, women must still continue to work hard and take on leadership roles.
Mayor Reed said the despite the ratification, women must still continue to work hard and take on leadership roles.(WHSV)
Published: Jan. 28, 2020 at 5:27 PM EST
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The Equal Rights Amendment was written decades ago to guarantee equal treatment and protection for women. On Monday, both chambers of the Virginia General Assembly

, making Virginia the 38th and final state needed for the three-quarters threshold for ratification.

The next step could allow it to be added to the U.S. Constitution, despite the deadline that expired in the 1980s.

Cathy Copeland, a faculty fellow at the James Madison Center for Civic Engagement, said in the past, other amendments have been added to the Constitution after their ratification deadlines.

"From here, it does start to be debated by Constitutional scholars. Can something that passed the Congressional deadline move forward?" Copeland said.

WHSV reached out to Virginia delegate Tony Wilt. He voted against the ERA and said in a statement he believes in equal rights for women, but the "vague language of the ERA is also ripe for numerous other unintended consequences."

The Justice Department

earlier this month indicating the ERA was not properly before the states and the Archivist considers it a failed amendment.

The National Archives, which certifies the ratification of constitutional amendments, said it would abide by that opinion “unless otherwise directed by a final court order.”

"Arguably the most liberal justice on the U.S. Supreme Court, Ruth Bader Ginsberg, has acknowledged the process must begin again," Wilt said. "There are existing court challenges pushing to recognize the amendment and they will continue to work through the process. However, in the meantime, the ERA will not be included in the Constitution and I don't expect the court challenges will ultimately be successful."

ERA supporters argue that because the deadline was included in a preamble of the amendment, it is not legally binding. There’s also a push in Congress to remove the deadline. Another issue that may only be settled through lawsuits is a move by five states to rescind their previous ratification of the amendment.

Virginia Attorney General Mark Herring has said his office has been preparing for potential challenges to Virginia’s ratification and is ready to go to court if necessary.

“To the naysayers and to the opponents of women’s equality, I say do not underestimate Virginia and do not underestimate this movement,” Herring said at a news conference Monday.

Harrisonburg Mayor Deanna Reed said women have been fighting for the ERA since the 1970s.

"We still need to fight for our equal rights and so I think of those women today," Reed said. "I've spoken to several of them and they're so excited."

Although the ERA has been passed in Virginia, Mayor Reed said women must still keep working hard.

"We have to continue to be in leadership roles. We have to continue to show that our voices are heard."

The ERA was initially proposed in Congress in 1923 and passed in 1972. Its first section reads: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”


The Associated Press contributed to this article.

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