by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
After they took control of the state legislature last fall, Virginia Democrats announced a legislative agenda that was tailor-made to polarize public opinion and generate acrimony. So far, it seems to be working as planned. The gun control elements of the Democrats’ agenda, for example, provoked more than 100 Virginia cities and counties to declare themselves Second Amendment sanctuaries and inspired a highly successful protest by gun owners and gun-rights advocates in the state capital.
Impressive as that is, however, I suspect another element of the Democrats’ agenda will produce even more acrimony and polarization in the long run. On January 15, the Virginia General Assembly passed a resolution ratifying the Equal Rights Amendment (ERA) to the U.S. Constitution. As I will explain, the ERA has been effectively dead since at least 1982. It is improbable that the current effort to revive it will succeed, and, even if did, the ERA would do little to help women and might actually harm them. What’s more, any attempt to revive the ERA now will further divide the country and exacerbate our already high levels of suspicion and hostility. Unfortunately for Virginia Democrats, the latter factor appears to be a feature rather than a bug.
On March 22, 1971, large bipartisan majorities in the U.S. Congress approved the following resolution:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:
SECTION 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
SEC. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
SEC. 3. This amendment shall take effect two years after the date of ratification.
This meant that 38 states had to ratify the proposed amendment by March 22, 1978, for it to become a valid part of the Constitution. By the time the deadline was reached, however, only 35 states had done so. Rather than give up, the ERA’s supporters persuaded Congress to pass a new resolution extending the deadline to 1982. It was far from clear that such an extension was legal, and a lawsuit challenging the extension eventually reached the Supreme Court. However, by the time it did so, the new deadline had passed without any additional states ratifying the ERA. The Court, therefore, held that the case was moot. Further complicating matters, by the time the original deadline had passed, four of the 35 states that had originally ratified the amendment had rescinded their ratifications, and, in 1979, a fifth state imposed a March 22, 1979 “sunset” on its ratification, effectively withdrawing that ratification as well. Members of the Democratic-led North Carolina legislature attempted to pass the ERA in 1973, 1975, 1977, 1979, 1981, and 1982, but they were never able to secure the necessary votes for passage.
For a time, the ERA appeared to be well and truly dead. In the 1990s, however, some of its supporters came up with an elaborate, three-step plan to revive it. Step One: persuade three more states to ratify the amendment. Step Two: persuade Congress to extend the ratification deadline retroactively. Step Three: persuade the courts to (1) approve the validity of the retroactive extension by Congress, and (2) deny the validity of the rescissions and sunset provisions by which five states had withdrawn their prior ratifications.
The ERA revival plan made significant progress in 2017 and 2018 when Nevada and Illinois ratified the moribund ERA. In 2019, Democrats advanced legislation in the General Assembly in an effort to make North Carolina the 38th and final state to ratify the ERA. With Virginia’s ratification last week, North Carolina’s ratification is no longer necessary and step one is now complete. That leaves the plan’s proponents free to move on to steps two and three. If the Democrats were to take control of the U.S. Senate, House of Representatives, and the presidency, they would presumably have an easier time with step two.
However, unless they succeed in packing the Supreme Court with politically compliant justices, it is extremely unlikely that they will succeed with step three. I have yet to come across a reputable legal scholar who agrees with both of the ERA’s proponents’ legal claims, i.e., that a retroactive extension of the filing deadline by Congress would be valid and that the rescissions and sunset provisions enacted by the withdrawing states are invalid. On the contrary, almost every legal analysis I have read rejects both of those claims. (see, e.g., here, here, here, and here. Even the Department of Justice agrees.)
While the ERA’s contemporary proponents often seem willfully blind to the fact, it is important to recognize that the ERA applies only to federal and state laws. It says nothing about private employers, schools, and organizations. Back in the 1920s when the ERA was originally proposed, an amendment that focused only on laws made sense because, at that time, many federal and state laws did deny and abridge women’s rights on account of their sex. However, a lot has changed since then.
As it is currently understood, the 14th Amendment already requires each state to treat all persons within its jurisdiction equally regardless of their sex, and most state constitutions, including North Carolina’s, include a similar requirement. Going much further, Title VII of the Civil Rights Act makes it illegal for employers to discriminate based on sex, and Title IX does the same of educational institutions. Perhaps even more importantly, and notwithstanding the complaints of radical feminists, most Americans are firmly committed to equality for women, so much so that, whenever there is evidence that women are underrepresented in some field of activity, we find people working hard to find ways to bring more women into the field.
For these and other reasons, one would be hard-pressed today to find an example of a state or federal law that denies or abridges anyone’s rights based on sex. On the contrary, the affirmative action and set-aside requirements that are enforced by many states and the federal government actually discriminate in favor of women. By its own terms, if the ERA were to be strictly applied, it would put a stop to such programs.
Thanks to a host of unresolved lawsuits, the legal meaning of the word sex is completely up in the air. Does it include sexual orientation? Does it include gender identity? No one knows. The resulting uncertainty about what our existing antidiscrimination laws mean has fostered a great deal of suspicion and hostility. Attempting to add a constitutional amendment forbidding discrimination based on sex when no one knows what the word sex means seems inherently unreasonable. And, given the rather underhanded way the ERA’s proponents are going about it, any such an attempt is bound to exacerbate the suspicion and hostility that already exists. Surely that’s the last thing the country needs right now.
The deadline that Congress set for ratifying the ERA has long since passed, and five of the 35 states that originally ratified the amendment have formally withdrawn their approval. The ERA is dead, and it is extremely unlikely that the current attempt to revive it based on the three recent ratifications will succeed. Finding out for sure, however, will be a long, expensive, and acrimonious legal battle. And, in the unlikely event that the ERA’s proponents win that battle, the ERA’s opponents will feel, with a good deal of justice, that they have been cheated. This will be particularly true in the five states that have revoked their prior approval, but it will also be true in the other states that also gave their approval before the original deadline.
When the citizens in those 30 states voted in favor of the ERA, it was on the understanding that it would only become law if three-fourths of all states approved it within seven years. Changing the rules after the fact will be seen as cheating. Indeed, through the lens of most people’s ethical standards, it will actually be cheating! The result will be more hostility and suspicion and more acrimony and polarization. That may be exactly what Virginia Democrats want, but for the country as a whole, it will be a very bad result indeed.