Friday, Nov. 9, the Marshall-Wythe School of Law hosted “A Place in History: Should Virginia Become the 38th and Final State Needed to Ratify the Equal Rights Amendment to the U.S. Constitution?” In this symposium, legal scholars, students and activists joined together to discuss the importance and implications of the ERA, an amendment prohibiting sex-based discrimination, and how the Commonwealth of Virginia could make history by ratifying it.
Since its approval in Congress in 1972, the ERA has generated support and controversy. Originally advocated for by feminist activists intending to combat gender inequality, the ERA faced severe backlash at the time it was introduced. Arguments against it were plentiful: Some stated that the 14th amendment already implied gender equality, while others argued that the ERA would eliminate preferential legislation for women.
Despite the controversy, the ERA passed in Congress and was ratified by 35 states. However, the ERA momentum fizzled out in 1982, when it fell just three states short of the 38 states required to become a constitutional amendment. Despite ongoing support from women’s rights activists, the ERA had stopped just before the finish line as the deadline for ratification came and went without any further action. Decades later, in 2017, Nevada became the 36th state to ratify the ERA, 36 years after the deadline had passed. Soon, Illinois followed, leaving only one more state needed to reach the required 38.
Now, Virginia is facing increasing pressure to be the 38th and final state to ratify the ERA. This push for ratification was the main focus of the symposium, which was co-hosted by the interest group VA ratify ERA and the American Constitution Society at the law school. The symposium itself consisted of panels of lawyers and women’s rights activists, all of whom discussed the ERA and its implications. On campus, the Center for Student Diversity also hosted an event where VA ratify ERA advocates handed out buttons and stickers to educate students about the push for ratification in Virginia.
“I think if this can work in Virginia, it can work anywhere,” Center for Student Diversity Student Organizer Alexa Mason ’19 said. “For Virginia, there’s such a mix of political values and such a mix of, I guess, just different viewpoints on gender equality that if we can all come together and make this work here, it can really work in any state.”
Virginia still has not ratified the ERA, although there have been attempts in the past. Between 2011 and 2016, the Virginia State Senate attempted to ratify the ERA five times, only to be shut down in the House of Delegates each time. VA ratify ERA is urging the Virginia General Assembly to pass the ERA and to do it this year.
“Why now is because … we’ve got momentum from 2016 and 2017,” 100th Anniversary Committee Co-Chair Jayne Barnard said at the symposium, during a panel titled “The ERA: Why Now?”
Recent resurgence of women’s rights campaigns such as the #MeToo movement and anger about sexist comments from political figures have fueled the fire of the pro-ERA campaign. With the recent election of female Democratic candidates like Elaine Luria and Jennifer Wexton in Virginia, some argue it’s the perfect time for Virginia to ratify the ERA.
“It’s the week after midterm elections where a historic amount of women candidates have been elected to office, which I think gives momentum right now for promoting gender equality,” George Townsend J.D. ’21, a law student attending the symposium, said.
Although support for the ERA has grown in recent years, there are still legal issues involved. The original amendment was introduced with a deadline for ratification, a deadline which passed in 1982. At the symposium, however, there was a clear optimism about extending the deadline, as the text of the deadline is not included in the amendment itself.
“The deadline is in a statute — the statute can be changed,” Managing Partner of Chicago law firm Winston and Strawn Linda Coberly, the managing partner of Chicago law firm Winston & Strawn, said during the panel titled “A Path Forward: If Virginia Ratifies the ERA, What’s Next?”
Questions of timing and legality weren’t the only issues on the table. The law symposium addressed a wide range of problems, from women’s professional lives, to female incarceration to gender discrimination. All of the issues had a common theme: they could be improved under the ERA.
Many anti-discrimination practices in the United States are implicit in certain parts of the Constitution, such as the equal protection clause of the 14th amendment. However, the ERA would make these rules explicit, which some argue would decrease gender-based inequality in the United States.
“Existing constitutional protection is weaker than it could be,” Gender, sexuality and women’s studies and law professor Vivian Hamilton said. “… An Equal Rights Amendment would give Congress that broader authority to better address sex discrimination.”
The symposium attendees and ERA activists reflected on their personal connections to the fight for equal rights. Many at the symposium have fought for the ERA since its approval in the ’70s, whereas others were newcomers to the cause.
“It’s definitely a topic that I didn’t know a lot about before today, but with so many different speakers, so many different perspectives, it’s been a great learning opportunity,” Townsend said.
Despite its long and tumultuous history, the ERA, according to some, some say the ERA is now just a few steps away from becoming the 28th amendment to the Constitution. For many, the promise of an amendment specifically prohibiting gender-based discrimination signals a brighter future.
“For me, it means being able to have the equal rights and privileges in the workplace and just generally that are afforded to men in this country,” Mason said. “I think making sure that women have equal access to fair pay, equal educational opportunities and really kind of opening those doors for women is really what the ERA is all about, and making sure that that’s a legal precedent is something that’s really important for us.”