For nearly half a century, Virginia has been a place where proposals to ratify the Equal Rights Amendment go to die.
But this increasingly blue state could soon be the 38th to approve the gender-equality amendment, ushering it across the constitutional threshold for ratification and all but guaranteeing battles in the courts over whether it can be enshrined.
“The capital of the Confederacy has changed dramatically,” said Eleanor Smeal, who was president of the National Organization for Women in the late 1970s when the prospect of Virginia ratifying the ERA was unimaginable.
“You used to have a machine that ran this state,” Smeal said. “Those days are gone.”
The proposed amendment to the U.S. Constitution would outlaw discrimination based on gender, providing Congress with firmer grounding to pass anti-discrimination laws while giving lawsuits more strength in the courts.
Congress approved the ERA for ratification by the states in 1972. And 35 had ratified it by a final 1982 deadline, leaving the amendment three states short of what was needed.
There has been much debate over whether the original ERA can be revived. But momentum is building in statehouses, anyway. And bills in Congress would try to remove the deadline or start the whole process over.
ERA advocates are harnessing the energy of the #MeToo movement, the annual Women’s March and concerns about President Donald Trump’s policies on sex discrimination and contraception.
In the last two years, Nevada and Illinois ratified the ERA, bringing the number of states to 37. ERA supporters are now looking to Virginia, which begins its legislative session Jan. 9.
“There are several states hoping to ratify the ERA in the coming year, but Virginia is by far the most likely,” said Kate Kelly, a New York-based human rights attorney for the women’s rights nonprofit Equality Now.
Republicans control Virginia’s General Assembly by thin margins in each chamber.
The 2017 election saw 11 Democratic women flip seats in the House of Delegates. In November, three Democratic women from Virginia were elected to Congress.
A Christopher Newport University poll released in December estimates that 81 percent of Virginia voters support ratification.
Some Republican lawmakers do as well, including state Sen. Glen H. Sturtevant, Jr. of central Virginia. His office said he will sponsor a resolution for ratification next session.
It may not be enough.
Since 1973, ERA measures have never passed Virginia’s House or even left its Privileges and Elections Committee, the House Clerk’s office said. (The Senate has approved it four times).
“We know we have the votes,” said Democratic Del. Jennifer Carroll Foy of northern Virginia. “Our goal is to get it to the floor.” Carroll Foy is sponsoring a House measure and recently toured the state promoting the ERA.
Her measure has been assigned to the House privileges committee. During the last legislative session, Republican committee chair Mark Cole would not allow a hearing on the ERA, inciting jeers from women’s rights groups.
It’s unclear if 2019 will be any different. Parker Slaybaugh, a spokesman for Republican House Speaker Kirk Cox, said the measure “will have to go through the legislative process along with the many other bills that will be presented come January.”
Cole, the committee chair, lists many criticisms of the ERA on his website. They include the long-expired 1982 deadline, but also the fact that five states that ratified in the 1970s later passed measures to rescind their support.
Plus, he said, many laws in Virginia already protect against gender-based discrimination.
“The ERA proponents need to spend their time lobbying Congress and not trying to get the General Assembly to pass a resolution that would have no effect or worse spark a series of lawsuits,” Cole wrote.
There has been much debate over the constitutionality of states trying to rescind their ratifications, according to a July report from the Congressional Research Service. It’s just one of many issues that legal experts say would likely spark a massive legal fight. ERA Proponents, for instance, question the finality of the 1982 congressional deadline.
There is also much debate over what the ERA would do.
Victoria Cobb, president of The Family Foundation of Virginia, said the ERA could be used to justify taxpayer-funded abortion because “only women can be pregnant, (and) therefore denial of abortion funding is sex-oriented discrimination.”
Anne Schlafly Cori, who chairs the conservative Eagle Forum, said a government-funded women’s shelter could be prohibited from excluding men and that the ERA would give too much power to the federal government.
“They’re attempting to shoehorn a cadaver into the Constitution that was debated and rejected in the 1970s for good reasons,” she said.
University of Baltimore law professor Michele E. Gilman said the courts would ultimately decide what the ERA would do.
“The next steps would be test cases and court battles,” she said. Many would “ultimately go to the U.S. Supreme Court. And the court could read it in a way that is much more narrow and doesn’t necessarily reflect the intent of the ERA.”
Gilman said the amendment would not be the “parade of horribles” that critics claim. And it wouldn’t be a “magic overnight solution” for gender equality, either. But, she said, a constitutional amendment against gender-based discrimination would carry powerful symbolic value.
Smeal, the former president of NOW who now heads the Feminist Majority organization, said that if Virginia fails to ratify the ERA, another state will.
“Our strength is only growing,” she said.
