Virginia legislature votes to ratify Equal Rights Amendment to U.S. Constitution in move that may prove illegal
The Virginia House and Senate each voted Wednesday to ratify the Equal Rights Amendment to the U.S. Constitution, in a move both historic and deeply controversial.
The 59-41 vote in the House was quickly followed by a 28-12 tally in the Senate, as the General Assembly, now led by Democrats for the first time in 20 years, surmounted decades of failure dating back to the 1970s.
“This is the vote of a lifetime,” Delegate Jennifer D. Carroll Foy, Prince William Democrat and chief sponsor, told colleagues. “Never again will you be able to affect the United States Constitution and solidify and enshrine women’s equality into our founding document.”
Wednesday’s action isn’t final. Though each chamber approved similar language, they voted on separate bills. One chamber now must hold a final vote on the other’s version.
But that is seen as a formality, now that both chambers have proved they have the votes.
Backers say Virginia will become the 38th state to ratify the measure, which in theory would be enough support to make the ERA the 28th amendment to the Constitution. A more likely outcome is years of litigation as the courts try to decide whether the ratification is legal.
The Justice Department says the ERA expired decades ago. When Congress first proposed it to the states in 1972, it set a seven-year deadline for ratification. It later tacked a few extra years to that deadline, but the amendment never won enough states.
Complicating matters, five states that ratified in the 1970s have voted to revoke their approval, which would cut into the numbers.
Those legal hurdles did little to dampen the jubilation of ERA backers Wednesday, who cast their vote as a chance for Virginia to correct past wrongs.
Ms. Carroll Foy said Virginia was on the forefront in defending slavery, led the legal battle against interracial marriage and as late as the 1990s was defending its ban on women being able to attend the state-funded Virginia Military Institute.
“I don’t know about you, but I think it’s right on time for Virginia to finally be on the right side of history,” said Ms. Carroll Foy, who ended up attending VMI after the U.S. Supreme Court struck down Virginia’s ban as illegal sex discrimination.
Delegate Vivian Watts, Fairfax County Democrat, showed fellow lawmakers a photo of herself and her daughter 44 years ago marching on the National Mall in support of the ERA, and said it was a shame it has taken this long.
She recalled that in her youth it was illegal for married women to teach high school. Though that law was changed, Ms. Watts said that kind of advance can be fleeting.
“The progress that we have made under changes to laws like that, as valuable as they are, can be erased tomorrow,” she said. “We needed the 19th Amendment to get the right to vote. We are not protected under the Constitution, and we need that protection.”
Three House Republicans joined Democrats in supporting ratification, as did seven GOP senators. Several spoke in favor, including Sen. Jennifer Kiggans, who said the amendment is probably dead — but said the symbolism of the vote was still important.
Other Republican women spoke in opposition, pointing out that the amendment doesn’t actually mention women.
“The ERA does nothing for true equality for women, but uses women as a political pawn to push the liberal agenda,” said Sen. Amanda Chase, Chesterfield Republican.
The 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 exactly that means as a matter of law is unclear.
Backers said they expect it will help open job opportunities and pay equality to women. Opponents worried it would override state restrictions on abortion and create a morass of legal fights.
One major question is whether the word “sex” includes protections for sexual orientation as well.
Sen. Barbara Favola, Arlington Democrat, said it’s not lawmakers’ job to worry about the meaning.
“We have a judicial system, and that’s what the judicial system is for,” she 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 the 38th.
The GOP, which controlled the chamber last year, bottled the amendment up in the House.
That was only the latest in a long string of failures. Perhaps the most noteworthy came in 1980, when it was within a whisker of clearing the Senate.
There were 20 senators in support and 20 opposed, which would have given then-Lt. Gov. Charles S. Robb, a Democrat and ERA supporter, a chance to cast the tie-breaking vote.
But then-Sen. John Chichester, a Republican and ERA opponent, abstained from the vote.
That left the tally at 20-19 in favor of the ERA — but under the rules, to ratify an amendment to the Constitution required an absolute majority of 21 votes. Since there was no tie, Mr. Robb didn’t get to add his vote, and the amendment died with only 20 votes in support.
Mr. Chichester defended his abstention by saying he had a conflict of interest: He was married to a woman.
The stunt made national headlines.
On Wednesday, Sen. Richard Saslaw, who at the time was a first-term senator, called Mr. Chichester’s explanation “one of the most preposterous remarks I’d heard on the floor.”
The Washington Times in 2011 asked Mr. Chichester about his abstention. He said he didn’t recall much about the incident or his reasoning.
“That’s all vague,” he said.
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