By: Jonathan Mook and Colete Fontenot

In 2020, the Virginia General Assembly ratified The Equal Rights Amendment (ERA), becoming not only the 38th state to endorse the Amendment, but also the final state to satisfy the required two-thirds majority needed to amend the U.S. Constitution.  Although equal rights activists celebrated Virginia’s passage of the ERA, the long journey towards ratification did not end.  In fact, it was just the beginning of a new chapter.

That’s because when Congress passed the ERA with a super majority back in 1972, the preamble included instructions giving the states seven years to secure the necessary two thirds approval.  When that didn’t happen, Congress passed an extension for three more years until 1982, but that extension too failed to result in the necessary support from the states.

Court Suits

Virginia’s ratification 28 years later, therefore, triggered litigation as to whether its belated ratification was effective.  Three late ratifying states, including Virginia, brought a suit in the federal District Court for the District of Columbia to compel the Archivist of the United States to certify the ERA as the 28th Amendment to the Constitution.  They argued that the deadlines set by Congress were included in only the preamble- not in the text – of the proposed amendment, and therefore, were not binding.  Recently, Judge Rudolph Contreras dismissed the case on the basis that “the Archivist has no duty to publish and certify the ERA.”  In his ruling, Judge Contreras did not address the issue of deadlines or deadline extensions.  No decision to appeal the judge’s decision has yet been made.

Legislative Action

The court’s decision prompted action by Congress, however.  Less than two weeks after Judge Contreras’s ruling, the House voted 222 – 204 to remove the 1982 deadline for state ratification of the ERA.  Next, the House bill will go to the Senate for consideration.  While Senators Lisa Murkowski (I-AK) and Susan Collins (R-ME) have voiced support for the ERA, there is little confidence that the evenly divided Senate will take up the House bill, particularly because for many conservatives, the amendment represents an attempt to “put abortion in the constitution” and to provide legal rights to transgender persons.

Bottom Line

At this point, the status of the ERA remains in limbo.  Because surveys show that the ERA continues to have broad support from the public, including almost unanimous support among Millennials and Generation Z, there likely will be additional efforts to have Virginia’s ratification of the ERA be deemed to have full force and effect and to secure adoption of the ERA as the 28th Amendment.  Should this occur, the impact not only on employers, but our society in general, will likely be profound because the amendment not only will guarantee that the rights affirmed by the Constitution are held equally by all persons without regard to their sex, but also will provide a Constitutional right of equality that all Americans can enforce.  Accordingly, we will continue to follow this important issue, and update you as developments occur.

Editor’s Note:  For additional information on Virginia’s ratification of the ERA and the potential impact on employers, please see Jonathan and Colete’s article, “Virginia to Ratify Equal Rights Amendment” in the February, 2020 issue of the Mid-Atlantic Employment Law Letter.

Jonathan R. Mook is an attorney with DiMuroGinsberg, PC, in Al­exandria, Virginia. You can reach him at Colete Fontenot is a legal assistant who provided much valued research as­sistance in preparing this article.