“Get it done!” and “Women’s rights, human rights!” they chanted.
January 8, 2020 12:50 PM   Subscribe

Virginia's 2020 General Assembly session started at noon Eastern today, with Democratic majorities in both the House of Delegates and the Senate. The new legislature is expected to ratify the Equal Rights Amendment, making Virginia the 38th state of the 38 states required to pass a Constitutional amendment. What happens next? Who knows?

The primary arguments raised against the ERA are that the amendment wasn't ratified before its 1982 deadline and that five states that initially ratified the ERA have since rescinded their decisions. It's not clear that rescinding is allowed since it's not mentioned in the Constitution.

Alabama, Louisiana, and South Dakota filed a federal lawsuit last month to try to stop the amendment. The Justice Department issued a statement today saying the deadline to ratify the ERA has expired.
The opinion, issued in response to a lawsuit filed by three conservative-leaning states, effectively prevents the archivist of the United States, who administers the ratification process, from verifying that the amendment is valid and part of the Constitution after the necessary number of states approve it. But his authority doesn't prevent states from acting on their own to ratify the amendment -- or preclude them from legally challenging the Justice Department's opinion in court.

"OLC's opinion doesn't directly affect the litigation, but unless it is overruled by the attorney general or the President, it likely will bind the archivist -- meaning that the only way a new ratification by a state like Virginia would likely be effective is if the courts say so," Stephen Vladeck, a CNN legal analyst and professor at the University of Texas School of Law, told CNN. "This opinion suggests that, from the Executive Branch's perspective, the matter is closed."
posted by kirkaracha (42 comments total) 32 users marked this as a favorite
 
I often think about how it seemed a given that this was going to pass when I was a kid, and I am far from being a kid now.
posted by bongo_x at 1:17 PM on January 8 [25 favorites]


The Justice Department issued a statement today saying the deadline to ratify the ERA has expired.

Is this something that a future Democratic administration could quickly reverse, though?
posted by saturday_morning at 1:22 PM on January 8 [2 favorites]


I often think about how it seemed a given that this was going to pass when I was a kid, and I am far from being a kid now.

Same. The history of this amendment is a national shame. The actions allied against it are themselves explicit reasons why we need it.
posted by Thorzdad at 1:25 PM on January 8 [21 favorites]


Just noting that the most recent amendment to be ratified, the 27th, was ratified in 1992. It was proposed 202 years earlier in 1789 (without a ratification deadline attached by Congress).

There's a strong argument to be made, based on that length of time, that Congress doesn't even have the authority to set a deadline, because the Constitution doesn't give them that power. If Congress did have that power, successive Congresses of liberal or conservative persuasion could tinker with the amendment process in all kinds of ways, including by adding or removing deadlines. The Constitution does not contemplate a deadline, not even a 200-year one.
posted by beagle at 1:27 PM on January 8 [27 favorites]


There is close to nothing that I can say about Phyllis Schlafly that would not get this comment removed due to overwhelming and hateful invective. What an odious, odious woman she was.

"Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex." It is asinine that this even needs to be _specified_, let alone require a Constitutional Amendment, let alone have states filing lawsuits to prevent it. It speaks volumes about the character of our nation and of a disturbingly persistent percentage of its citizenry.
posted by delfin at 1:32 PM on January 8 [25 favorites]


the most recent amendment to be ratified, the 27th,

I was writing a comment about that but paused to add a caveat about how everyone must learn that as a basic fact about the Constitution in school now, whereas I managed to miss it until recently. Having been beaten to the punch with my comment I now feel even older and more dotardly. (No hard feelings though!)
posted by XMLicious at 1:35 PM on January 8


About five of the previous proposed amendments that were ratified included a deadline. This one did as well. The 27th (which was part of the Bill of Rights) did not.

The deadline came and went, and so I consider it non-ratified. And I'm a supporter.
posted by megatherium at 1:36 PM on January 8 [3 favorites]


I hope it eventually passes, but I expect it won't in my lifetime. May make a really good political hammer though.
posted by BrotherCaine at 1:41 PM on January 8


Five states have voted to rescind or otherwise withdraw their ratification of the ERA.
Nebraska: March 15, 1973
Tennessee: April 23, 1974
Idaho: February 8, 1977
Kentucky: March 20, 1978
South Dakota: March 5, 1979

If this was expected to pass I wonder how many more of the current R-controlled states would try to rescind support.
posted by benzenedream at 1:43 PM on January 8 [3 favorites]


It would take about twelve seconds for a half-dozen of them to line up, eager to Take a Moral Stand in the name of Traditional Family, Old-Time Religion and The American Way, spurred on by talk radio and Fox News pundits decrying how the ERA would lead to the destruction of our armed forces, organized religion, the family unit, professional and amateur sports, police and fire departments, and fifteen or twenty completely overblown and ridiculous propositions.
posted by delfin at 1:55 PM on January 8 [3 favorites]


The Justice Department issued a statement today saying the deadline to ratify the ERA has expired.

I'm mean that's cool and all, but it's not really their call to make. Congress and the Congressional Archives are the ones that says yea or nay on this.

Five states have voted to rescind or otherwise withdraw their ratification of the ERA.

It's not clear if there is actually a way to do this or if the ratification process is based on the "no take backsies rules".
posted by jmauro at 2:21 PM on January 8 [2 favorites]


About five of the previous proposed amendments that were ratified included a deadline. This one did as well

But it didn't, which is where it gets fun.

This is the entire text of the ERA:
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.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.


No deadline. Congress put a deadline in the joint resolution officially passing it to the states, but it isn't clear that they can attach a deadline to an amendment beyond passing a self-deadlining amendment.
posted by GCU Sweet and Full of Grace at 2:32 PM on January 8 [18 favorites]


I expect that if it gets a 38th ratification that the issue will be decided by SCOTUS. And given the nature of some of the characters there, I would expect 99% that Justices Boofed Beer and Thomas will vote no (for obvious reasons), and the other conservative justices will be more than 50% likely to vote no because of the expiration date in the congressional statute. The deadline provision in the statute hasn't been repealed, but it put things in a weird place because a majority-passing statute that hands over an amendment to the states arguably can't override the 2/3 votes it took to create it.
posted by tclark at 3:40 PM on January 8 [6 favorites]


There's an article I shared a few months ago that I think applies here:

An Unaccountable Office Crafted a Secret Law to Conceal the Whistleblower Complaint (Mark Joseph Stern, Slate)
The [Department of Justice’s Office of Legal Counsel] is a small office that rarely garners much attention but holds extraordinary power, as the whistleblower episode illustrates. Its opinions are binding on the executive branch, yet they can be kept secret from everyone except high-ranking administration officials. [...]

By law, the OLC’s job is to help the attorney general provide legal advice to the president and federal agencies. It is intended to exercise its judgment independently, not to serve as a rubber stamp for the administration. In recent years, however, the office has crafted dubious theories that seem designed to let the administration do whatever it wants. The OLC notoriously issued the “torture memos,” blessing the George W. Bush administration’s abusive interrogation methods, which were hidden from the public for years. It also crafted the policy that a sitting president cannot be indicted, which boxed in special counsel Robert Mueller’s investigation and report.
My assumption is the office is not above being biased.
posted by ZeusHumms at 4:15 PM on January 8 [8 favorites]


We don't need another Equal Rights Amendment; we already have one: the Fourteenth. There's no reason to abandon the position that it includes everyone and guarantees equality for everyone. And the ERA doesn't even protect the abortion right! It is a waste of time, at best, and a disaster for other groups who rely on the Fourteenth Amendment at worst (immigrants; gender and sexual minorities).
posted by internet fraud detective squad, station number 9 at 4:21 PM on January 8 [1 favorite]


Nonsense. An explicit amendment is far preferable to letting the whims of SCOTUS at any given time dictate whether more than half the population deserves equal treatment. It's not "abandoning the position" to note that Brett Kavanaugh doesn't give a fuck about your feelings about how the 14th should be interpreted.

Even a full ERA might not stop these hooligans, but we should at least force them to ignore a plainly worded amendment rather than letting them weasel out with some strict constructionalist bullshit.
posted by tonycpsu at 4:32 PM on January 8 [21 favorites]


SCOTUS will decide this, and SCOTUS is majority GOP. So.
posted by 922257033c4a0f3cecdbd819a46d626999d1af4a at 4:32 PM on January 8 [4 favorites]


Nonsense. An explicit amendment is far preferable to letting the whims of SCOTUS at any given time dictate whether more than half the population deserves equal treatment. It's not "abandoning the position" to note that Brett Kavanaugh doesn't give a fuck about your feelings about how the 14th should be interpreted.

Those same justices will be interpeting the ERA, which won't necessarily be any better for women, and could be a lot worse. Because it's a new amendment, it will be a blank slate for a conservative judiciary. The problem with this is that it will allow for judicial scrutiny of remedial legislative and regulatory action that has long been considered constitutional. Women do much better with less judicial scrutiny on almost every measure, because there are a lot of us and we can vote. The one thing we need judicial protection for --- abortion --- isn't even going to be protected by the ERA. So again, what's the point strategically? The answer is that there is none.

So: no strategic benefit for women; potentially very harmful to everyone else protected by the Fourteenth Amendment. It's.a bad idea. It was a good idea in 1978, and many of the people fighting against it are terrible and sexist. But the ERA is still a bad idea.
posted by internet fraud detective squad, station number 9 at 5:02 PM on January 8 [1 favorite]


> The one thing we need judicial protection for --- abortion

oof.
posted by tonycpsu at 5:11 PM on January 8 [2 favorites]


Starting with the 18th Amendment, Congress started putting a time limit for ratification into the text of amendments they passed. This gets kind of cluttered over time, so eventually they moved the time limit into the joint resolution that approves the amendment and sends it to the states. (Amendments require 2/3 of both houses of Congress and 3/4 of states.)

The ERA passed Congress in 1972, with a deadline in 1979. By 1978, some states had already tried to repeal their previous approval (which is unclear); also Congress passed a new joint resolution to extend the deadline to 1982.

There was a Supreme Court case about whether extending the deadline to 1982 was OK or not, but not enough states ratified by 1982 anyway, so they dismissed it as moot.
posted by Huffy Puffy at 5:16 PM on January 8


It was a good idea in 1978, and many of the people fighting against it are terrible and sexist. But the ERA is still a bad idea.

The 14th Amendment was ratified in 1868. Since it was in effect in 1978, why was the ERA a good idea then but a bad idea now?
posted by kirkaracha at 5:19 PM on January 8 [10 favorites]


How is the ERA a "disaster" for immigrants and other marginalized groups? Since when did equality become a zero sum game?
posted by basalganglia at 6:23 PM on January 8 [9 favorites]


oof.

Why "oof"? Women are fairly politically powerful on everything besides abortion, probably because of the rampant terrorism directed at pro-abortion activists (and normal people providing abortion services). If we weren't politically powerful, the ERA wouldn't even be an option. Giving courts a bigger stick and a greater ability to strike down legislation doesn't make sense when you're talking about democratically popular policies.
posted by internet fraud detective squad, station number 9 at 6:50 PM on January 8


How is the ERA a "disaster" for immigrants and other marginalized groups? Since when did equality become a zero sum game?

Right now, the Fourteenth Amendment is supported by a broad coalition, which includes women. There is a sort of idea of the Fourteenth Amendment as an inclusive amendment that everyone who is protected by it relies on. That means that it's really, really hard --- maybe impossible --- to say that women are protected by the 14th but immigrants aren't; or that women are protected by the 14th, but gay people aren't. With the ERA, women can just throw up their hands and give up that fight, or, frankly, simply pour their money, time, and effort into shaping the ERA. Since women are so politically powerful, that would be a disaster for groups who rely on the 14th Amendment to protect their rights, and benefit from women's investment in the 14th Amensment.
posted by internet fraud detective squad, station number 9 at 6:56 PM on January 8 [1 favorite]


The 14th Amendment was ratified in 1868. Since it was in effect in 1978, why was the ERA a good idea then but a bad idea now?

Two things. One is all the 14th Amendment litigation, famously led by Ruth Bader Ginsburg, which made women's rights a 14th Amendment issue. That did not happen in 1868, it happened in the late 20th Century. The 14th is very old, but it has expanded its reach over time to include and protect a variety of groups as society has changed. That is one of its main benefits; we wouldn't have same-sex marriage without the 14th Amendment evolving to include marriage rights. Similarly, the 14th Amendment didn't protect abortion until Roe v. Wade was decided in 1972 or 73 (I forget).

The second is women's increasing material and political power, and our legislative successes at the state and local level. These have done a lot to get women where we are today, and increasing a conseravative judiciary's ability to invalidate those laws because they are not "equal" between the sexes is a much bigger risk than it was in the 70s. Then, there were hundreds of facially discriminatory, sexist laws that hurt women on the books. Now, with the exception of abortion, laws are typically neutral or they favor women. (The enforcement of those laws is another story, but an ERA would probably not help much with that anyway given the conservative judiciary and the general pattern of the courts ignoring impact/enforcement when it comes to race and gender.)
posted by internet fraud detective squad, station number 9 at 7:04 PM on January 8 [3 favorites]


Now, with the exception of abortion, laws are typically neutral or they favor women.

I should clarify --- I mean that the laws, as written, do not explicitly discriminate against women. There are a lot of laws that may have a negative impact on women even if they do not, themselves, discriminate on the basis of sex. The federal judiciary essentially does not "see" that kind of discrimination, though, so it is not likely that an ERA would do much to increase the courts' scrutiny of laws that are technically fair, but that have a disparate impact on women.
posted by internet fraud detective squad, station number 9 at 7:08 PM on January 8 [1 favorite]


For more on the 14th Amendment, "On the Basis of Sex" is a pop movie about RBG and the litigation that helped make women's equality part of the 14th Amendment. I don't know if it's that accurate or good, but if you are starting from zero it's probably an interesting introduction.

If you're looking for something more technical/academic, Serena Mayeri's piece on the development of legal feminist strategy in the 20th Century is incredible (as is she).
posted by internet fraud detective squad, station number 9 at 7:13 PM on January 8 [2 favorites]


Love overthinking my policy positions until they are identical with Phyllis Schlafly's, but for the right reasons.
posted by great_radio at 8:02 PM on January 8 [6 favorites]


There's a legal principle that laws aren't interpreted in a way that would make them meaningless. I don't know how that bears on US Constitutional law, but it's very possible that a court would find that the mooted amendment provides additional rights to women, over and above what is now understood to be equality.

The obvious rights that could be implied are remedies for things that are facially neutral but effectively burden women more than men. For instance: restrictions on abortion; the lack of maternal leave; and pensions tied to earning history. I'm not saying this is ideal; I don't think judicial interpretation is a good substitute for progressive legislation, but this is some reason why passing the amendment could have good consequences.
posted by Joe in Australia at 8:04 PM on January 8 [2 favorites]


Right now under 14th amendment jurisprudence, gender / sex discrimination or distinctions are reviewed under “intermediate scrutiny.” The ERA says “shall not,” which sounds like strict scrutiny, and would make it much harder for distinctions to pass judicial review. So it should be that it would make a difference.
But there is also the world we actually live in.
posted by kerf at 8:15 PM on January 8 [7 favorites]



Love overthinking my policy positions until they are identical with Phyllis Schlafly's, but for the right reasons.


Love to be dismissive and nasty towards women whose feminism is more sophisticated, thoughtful, and intersectional than mine. That, to me, is allyship
posted by internet fraud detective squad, station number 9 at 6:23 AM on January 9 [2 favorites]


That, to me, is allyship

Correct. Because I am an ally to people who want to pass the ERA.
posted by great_radio at 7:01 AM on January 9 [2 favorites]


Has the 14th amendment been used in any gender pay inequality suits?
posted by benzenedream at 7:29 AM on January 9


It's not clear if there is actually a way to do this or if the ratification process is based on the "no take backsies rules".

I can't see how even the current Supreme Court could declare that there is a backsies rule. First, it's not included in the amendment process written into the constitution. Second, if an unwritten backsies rule existed, then any sufficiently renegade state could unratify the entire constitution and thereby secede. I believe a certain war settled that question.

So, if the backsies votes don't count, the Supremes would then have to decide the validity of deadlines sent by congressional resolutions (not laws). The last time they considered this question was in the Coleman v. Miller decision in 1939.. (Decision syllabus.) In that ruling the court stated: "The Congress, in controlling the promulgation of the adoption of a constitutional amendment, has the final determination of the question whether, by lapse of time, its proposal of the amendment had lost its vitality before being adopted by the requisite number of legislatures."

On that basis, while the court might rule on the backsies question, they would kick it back to Congress (not the archivist of the LOC, not the DOJ) to count the ratifications and decide whether the amendment has been ratified. The question there would be whether a simple majority of both houses could decide, or whether a two-thirds vote is needed again. That's unexplored territory with no precedents to go on. (But IANACL.)
posted by beagle at 8:26 AM on January 9 [2 favorites]


eventually they moved the time limit into the joint resolution that approves the amendment and sends it to the states

The District of Columbia Voting Rights Amendment, which passed Congress in 1978, had a seven-year deadline as Section 4.
posted by kirkaracha at 8:35 AM on January 9 [1 favorite]


Right, and the fact that they put the deadline into the amendment itself is an indication that they were worried that deadlines set outside the amendment text itself might not be valid.
posted by beagle at 8:38 AM on January 9 [4 favorites]


Interestingly enough, should the states want to be wacky that way, the DC Voting Rights Amendment could be ratified by 38 states, and it would immediately become a weird extant self-nullifying amendment. It would go on the books as the 28th Amendment (or whatever ordinal number is appropriate) and be inoperative.

It will not have been repealed (like alcohol prohibition) but be enacted as inoperative.
posted by tclark at 9:19 AM on January 9 [4 favorites]


Correct. Because I am an ally to people who want to pass the ERA.

Even the anti-choice republicans? Gotcha. That's one way to feminism. Another way is to be, at least, mildly open to women who disagree with you on methods but who are seeking important, worthwhile goals for equality. Or you could be snarky and dismissive, I guess.
posted by internet fraud detective squad, station number 9 at 6:07 PM on January 11


Has the 14th amendment been used in any gender pay inequality suits?


Great question! You can't sue private citizens under the Fourteenth Amendment directly. The way it works is that the Fourteenth Amendment allows equal protection legislation to be passed by Congress, and then Congress legislates to allow people to bring various lawsuits, or ask regulatory bodies for help. This would be true of an Equal Rights Amendment, too, though--it's a structural feature of our federal courts that holds true for every constitutional provision/amendment.

The Fourteenth Amendment has allowed Congress to pass the Equal Pay Act as well as Title VII (IIRC) of the Civil Rights Act, both of which seek to prohibit gender discrimination in the workplace. (You're probably more familiar with Title IX, which prohibits gender discrimination in education; that, too, could be enacted by Congress because of the Fourteenth Amendment.)

I hope this answers your question!
posted by internet fraud detective squad, station number 9 at 6:17 PM on January 11 [3 favorites]


Virginia moves to brink of becoming 38th state to ratify ERA
Virginia moved to the brink of becoming the crucial 38th state to ratify the Equal Rights Amendment on Wednesday, a momentous victory for many women’s rights advocates even though it is far from certain the measure will ever be added to the U.S. Constitution.
...
The measure has passed the Virginia Senate before with bipartisan support but has never made it to the House for a floor vote. ERA supporters, some of whom have been advocates for decades, lined up hours in advance of the vote Wednesday to get a seat in the gallery.

The House vote was presided over by Del. Eileen Filler-Corn, the first female House speaker in the chamber’s 400-year history.
posted by kirkaracha at 11:53 AM on January 15 [2 favorites]


Virginia lawmakers pass Equal Rights Amendment in historic vote
Both chambers of Virginia’s General Assembly passed the Equal Rights Amendment Wednesday, fulfilling a promise that helped Democrats seize control of the legislature and marking a watershed moment in the nearly century-long effort to add protections for women to the U.S. Constitution.

The votes capped an emotional week in which Democrats — particularly female lawmakers who now hold unprecedented positions of power in Richmond — celebrated history in the making.
posted by kirkaracha at 12:04 PM on January 15 [7 favorites]


Virginia finalizes passage of Equal Rights Amendment, setting stage for legal fight
Virginia's legislature finalized passage of the Equal Rights Amendment on Monday, with women presiding in both the Senate and House of Delegates for the historic votes.

Virginia becomes the 38th — and potentially final — state to ratify the amendment guaranteeing equal protection for women, setting the stage for a legal fight over whether too much time has passed to add it to the U.S. Constitution.

“We have waited over 400 years, and now is our time,” Sen. L. Louise Lucas (D-Portsmouth) said at a news conference Monday morning ahead of the vote."
posted by kirkaracha at 2:58 PM on January 27 [1 favorite]


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