Virginia becomes 38th state to pass ERA for women, likely setting up issue for courts

WASHINGTON – Virginia on Wednesday became the 38th – and potentially pivotal – state to pass the Equal Rights Amendment, setting up an expected legal battle over what happens next.

If codified into the Constitution, the change would explicitly declare that women have equal rights under the law. Supporters say it's a long-needed protection for women who continue to face discrimination in the workplace and struggle against domestic violence and sexual harassment. Opponents argue it's an unnecessary amendment that could enshrine in the Constitution protections for abortion.

Opponents of the ERA also say that even with Virginia's passage, the amendment is dead because the timeline for state action has long passed. Supporters say the deadline is subject to challenge.

If approved, the Constitution would state that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

Here's a look at what Virginia's vote means:

Prep for the polls: See who is running for president and compare where they stand on key issues in our Voter Guide

How did we get here?

Congress approved the ERA in 1972, including in it what the Congressional Research Service calls a "customary, but not constitutionally mandatory" seven-year deadline for ratification by three-fourths of the states. When the number of states fell three short of the required 38 by 1977, Congress extended the deadline to 1982. But no additional states acted by the new deadline.

In 2017, Nevada became the 36th state to ratify the amendment. Illinois followed in 2018. And, after coming within one vote of passage in the Virginia Legislature when it was under GOP control last year, the now Democratic-controlled Legislature voted Wednesday to approve it.

Who are your role models? USA TODAY seeks your Women of the Century to commemorate 19th Amendment

What happened Wednesday?

The Virginia state Senate passed the amendment 28-12, shortly after senators were informed the House had passed the measure, 59-41.

When the Senate vote was announced, a throng of supporters stood and clapped. Their cheers echoed through the chamber.

“In so many areas, we still have a long way to go,” Democratic state Sen. Jennifer McClellan, one of the measure’s sponsors, said during debate on the Senate floor Wednesday. “Whether it’s the board rooms, whether it’s the highest offices in states or in the country, too often women are not there because they’ve had to overcome years of discriminatory laws. The Equal Rights Amendment will take a major step in the long march towards equality. It’s our time. We’ve waited long enough.”

But Republican state Sen. Amanda Chase, said the ERA will lead to removal of restrictions on abortions and remove gender designation for bathrooms, locker rooms, jail and hospital rooms. Besides, she said, it's unnecessary because of the "equal protection" language of the 14th Amendment.

“The ERA does nothing for true equality of women but uses women as a political pawn to push the liberal agenda,” Chase said on the floor.

What happens next?

Each chamber must still pass each other's resolution and Gov. Ralph Northam must sign it, steps expected to happen this week or the next. 

After two-thirds of the states have acted on a constitutional amendment, it's the job of the archivist of the United States – a nonpartisan position – to certify that it's been ratified. Because of the questions surrounding whether the ratification deadline is valid, the archivist has asked the Justice Department how it should proceed.

This is the first time that a proposed constitutional amendment was approved by the required number of states after a deadline under the premise that it could still be ratified.

If the amendment is certified by the archivist, it won't take effect for two years.

How has the Trump administration responded?

The Justice Department's Office of Legal Counsel said last week that the only way to ratify the amendment is to start the process over again.

"We conclude that Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the States," the opinion states.

Amendment supporters argue the deadline may not be enforceable. And, if it is, Congress may have the ability to change the deadline as they did once before. 

Which states are leading the legal challenge against the ERA?

The Justice Department weighed in because Alabama, South Dakota and Louisiana filed a federal lawsuit against the archivist in December.

"The people had seven years to consider the ERA, and they rejected it," Alabama Attorney General Steve Marshall said in a statement. "To sneak it into the Constitution through this illegal process would undermine the very basis for our constitutional order."

What other states haven't backed the amendment?

Besides Alabama and Louisiana, other states that have not ratified the amendment are: Arizona, Arkansas, Florida, Georgia, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, and Utah. (Lawmakers in some of those states are considering ratification.)

South Dakota, which is part of the legal challenge, ratified the amendment in 1973 and then voted to withdraw in 1979. Four other states – Nebraska, Tennessee, Idaho and Kentucky – also voted to withdraw in the 1970s. Whether the Constitution allows states to do that is another potential issue for the courts.

What is Congress doing?

While the legal battles play out, Democrats in Congress are getting involved. The House Judiciary Committee approved in November a resolution removing the ratification deadline. The Democrat-controlled House could easily pass the resolution but it faces a much more difficult path in the GOP-controlled Senate. 

House Majority Leader Steny Hoyer, D-Md., praised Virginia's action Wednesday and told USA TODAY that he's working with the Judiciary Committee to bring legislation to the floor soon.

On a separate track, House and Senate Democrats have also introduced legislation to start the ratification process over.

Why do supporters back the ERA?

Advocates say the amendment would provide an explicit guarantee of protection against discrimination on the basis of sex that is as strong as the protections that exist against discrimination based on race or national origin. While many federal, state and local laws prohibit discrimination, those can be changed much more easily than a constitutional amendment. And courts are still treating sex discrimination cases inconsistently, advocates say.

Why are opponents fighting the ERA?

Much of the opposition to the amendment is coming from anti-abortion advocates who argue that it could enshrine in the Constitution protections for abortion that don’t now exist – and would do so just as there’s hope that the Supreme Court will overturn its 1973 ruling that women have a constitutional right to an abortion.

They point to court decisions in Connecticut and New Mexico that used state-approved equal rights amendments to allow "medically necessary" abortions for women on public assistance.

Is the ERA likely to become a 2020 campaign issue?

The 2018 elections led to historic gains for women as energized voters and first-time candidates fueled a record-breaking gender gap that was demonstrated by the massive Women's March the day after Trump's inauguration. The #MeToo movement and fallout over Brett Kavanaugh's confirmation to the Supreme Court has fanned the gender wars and the battle over abortion that will be a prominent theme in the presidential election year.

Democrats vying for the nomination to take on Trump have brought up their support for the ERA at debates and other settings.

"I supported the ERA from the very beginning," former Vice President Joe Biden said at the first Democratic debate last year.

The fourth Women's March to show opposition to Trump is Saturday. That show of force will be followed the next week by anti-abortion activists' annual "March for Life."