RICHMOND, Va. (CN) – Virginia moved closer Wednesday to becoming the 38th state to ratify the Equal Rights Amendment, a constitutional change nearly a century in the making that would make it illegal to deny equal rights based on sex.
“For many of my colleagues voting today, who have felt the sting of discrimination, fought to be treated equally in their workplaces and within our institutional structures, today we are making history and walking down a more inclusive path,” House Majority Leader Eileen Filler-Corn, D-Fairfax, said in a statement following rousing cheers after both of the state’s legislative bodies voted to approve the ERA.
Each chamber must now pass the other's resolution for the ratification to become final, but that is all but guaranteed with a Democratic majority in both the House and Senate.
Nearly 100 years in the making, the constitutional amendment would guarantee equal rights for women by outlawing sex discrimination. It was first introduced in 1923 and passed by Congress in 1972, and was then sent to state legislatures for ratification.
Ratification of the ERA was one of many issues state Democrats ran on during the 2019 election cycle which saw both of Virginia’s legislative chambers flip blue for the first time in two decades.
Among those cheering in Richmond on Wednesday was Lisa Sales, chairman of the Fairfax County Commission for Women and a three-year volunteer lead with the RatifyERA campaign. She’s spent the last week making the 90-mile trip from northern Virginia to Richmond every day to advocate for the constitutional amendment.
“It’s a historic day,” she said. “All of us participating feel blessed to be part of her-story.”
Sales’ fight for the amendment started in 2011 when she was attacked and sexually assaulted by a tenant in a room she was renting.
“I crawled around on my knees for hours trying to get away from this guy,” she said with an enduring tone in her voice, having repeated the story for years in front of legislators and advocates to build support for the movement. While the incident itself was troubling, the protracted civil battle that followed, including a ruling against her at the Virginia Supreme Court, further pushed Sales to fight for equal protection for women.
“That’s what motivated me to engage,” she said. “I don’t care if I’m working a full-time job, I’ll stay up all night to make sure this gets done.”
The ERA is made up of three simple sections. The first states, “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 final two sections state, “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article,” and “This amendment shall take effect two years after the date of ratification.”
"Although potential legal hurdles remain, an amendment to the U.S. Constitution would provide the ultimate foundational protection for women under the law,” said former federal prosecutor and legal analyst Todd Stone.
He said the ERA would increase the level of scrutiny the U.S. Supreme Court would apply when considering equal protection cases based on gender.
“Those issues would become subject to the Supreme Court's highest level of scrutiny; whereas the Ccurt currently applies an intermediate scrutiny standard when balancing laws that have a disproportionate impact on women as a class," Stone said.
While supporters celebrated Wednesday’s victory, those who oppose the ERA suggested the amendment designed to provide equality for women would do the exact opposite.
“The ERA will erase many of the gains women have made in employment, education, and even sports,” said Victoria Cobb, president of the Richmond-based conservative advocacy group The Family Foundation. “If it even survives legal challenge, it could lead to the elimination of any limits on abortion even through moments before birth.”
Cobb also pointed to a Justice Department opinion released earlier this month that suggested Virginia’s ratification doesn’t necessarily move the ERA any closer to becoming the law of the land.
The first state to ratify the ERA, Hawaii, did so in 1972. Many states followed suit with the 35th, Indiana, ratifying in 1977. But then conservative groups pushed back with concerns about how the amendment would impact abortion and the gender equality movement.
It wasn’t until Nevada ratified it in 2017, followed by Illinois in 2018, that Virginia became the keystone for what advocates call a full 38-state ratification.
But Assistant U.S. Attorney General Steven A. Engel pointed to the extended timetable of ratification as contrary to the intent when the founders designed the system to amend the U.S. Constitution.
“The only constitutional path for amendment would be for two-thirds of both Houses (or a convention sought by two-thirds of the state legislatures) to propose the amendment once more and restart the ratification process among the States,” Engle wrote in the opinion. (Parentheses in original.)
A number of Republican state attorneys general have also filed suit to preemptively block ratification, claiming the deadline has expired.
But Virginia Attorney General Mark Herring, a Democrat, said he was unsurprised by conservative opposition to the ERA and promised to fight any efforts to block the amendment’s implementation.
“When Virginia becomes the 38th state to ratify the ERA I am going to do everything in my power to make sure that the will of Virginians is carried out and the ERA is added to our Constitution, as it should be,” Herring said in a statement last week.
Sales promised to be there too. She said she’ll keep recruiting volunteers and raising money for whatever legal battle is needed to get the amendment on the books.
“We will be engaged in the national fight,” she said. “It’s not over, no matter what the office of the attorney general says.Follow @@BradKutner
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.