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Is Virginia’s approval of the ERA meaningful?
When I was a senior in college, I wrote to my state legislator for the first time.
The Equal Rights Amendment had just passed. It read: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Pretty reasonable, eh?
So I wrote to my state senator, whom I knew from our church, expressing my hope that he would vote in favor of ratification. I’ll never forget how he phrased his polite, but negative, response.
After thanking me for my interest, he wrote, “I am not willing to open the Pandora’s Box of the Equal Rights Amendment.”
Even my 21-year-old self did not fail to see the irony in that statement. Remember the Greek myth about Pandora’s Box? As the story goes, a weak woman, unable to control her impulses, ignored instructions never to open the box; and when she did so, all the world’s ills came pouring out.
That was the analogy my senator chose to use when determining whether women should have equal rights with men. Rather than being angry, I burst out laughing, as he seemed so pitifully unaware of the implications of what he was saying. I’ve told that story many times over the years, with a rueful chuckle.
Indiana eventually became the 35th state to ratify the amendment, in 1977, though it took a call from then-President Jimmy Carter to a wavering Democratic legislator to push it over the top.
Unfortunately, the 1972 amendment had to be ratified by two-thirds (38) of the states in order to become law, which did not happen in the time allotted.
Forty-eight years later, however, Virginia just became the 38th state to ratify it.
Virginia’s ratification raises several questions, the most obvious of which: Isn’t it too late? The preamble to the amendment required ratification within seven years. Congress later extended that to 10. Still, it appears that if we didn’t get to 38 states by 1982, the Congress should have to re-enact the amendment with a new ratification deadline.
There are other complications, too. During the original ratification period, a total of five states that originally voted to ratify later rescinded their ratifications. If you count those rescissions, there are now only 33 states that have ratified—not enough by a long shot.
Proponents make some relatively creative arguments about why the Virginia vote should count, and the rescissions should not, but it seems plain to me that both pose major obstacles to ratification.
Several arguments against ratification made 50 years ago are being reiterated today. Opponents feared such things as gender-neutral bathrooms, and women in the military. Hmmm, haven’t those things happened anyway, without the amendment?
The 14th Amendment, it turns out, pretty much covers the waterfront. It says that neither the federal nor state governments may abridge the rights of any citizen or deny him/her the equal protection of the laws. Over time, many of the unfair laws that the ERA was intended to remedy have been overturned using the 14th Amendment.
So why the big push for the ERA now? Some say “for equal pay.” But if the ERA would remedy pay inequity (note that it only impacts acts by the government), the 14th Amendment should have the same effect. And it’s surely not worth all this effort just for the symbolism.
Though I eagerly advocated for the ERA in 1972, I now think we ought to focus on more pressing problems. Let’s move on.•
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Daniels, a partner at Krieg DeVault LLP, is a former U.S. attorney, assistant U.S. attorney general, and president of the Sagamore Institute. Send comments to ibjedit@ibj.com.
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Please correct your article. Constitutional amendments require a 2/3 majority of each house in congress and 3/4 of the states. 3/4 of 50 is 37.5, rounds to 38.