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Virginia’s complicity in the demise of the Equal Rights Amendment

An ERA demonstration in Florida, 1979.

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An ERA demonstration in Florida, 1979.

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In 1923, just three years after the United States adopted the nineteenth amendment, an organization of suffragettes known collectively as the National Women’s Party proposed another constitutional amendment that would help put an end to discrimination based on sex. This was the Equal Right’s Amendment, often abbreviated as the ERA, and it simply stated 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.”

Controversial and extremely progressive when it was first created, the ERA never gained any real traction until about fifty years later with the feminist movement of the 1970s. History students may remember reading about how leaders such as feminist Gloria Steinem advocated for the ratification of the amendment, but after receiving approval from the House in 1970 and the Senate in 1972, only thirty five of the thirty eight states necessary for ratification approved the amendment. When the congressional deadline for ratification passed in 1982, the amendment seemingly died, just three states short of fruition. One of those missing states was Virginia.

What students probably haven’t learned in history class is that the effort to ratify the Equal Rights Amendment is far from dead and, according to its supporters, neither is the amendment itself. Deadline aside, a resurgence of support for ratifying the amendment has taken place in recent years, and the efforts have escalated with the momentum of Hollywood’s #MeToo movement. Nevada moved to ratify the amendment this year, and members of the League of Women Voters and other pro-ERA groups flocked to Richmond this February to watch Senator Scott Surovell, a Democrat from Fairfax who represents the families of some Hayfield students, address the state legislator about the resolution that he sponsored to ratify the ERA. Surovell sponsored the same resolution multiple times over the past seven years, but every time it failed to gain traction on the floor. This year, hopes of passing the resolution were higher than ever.

“I can’t remember what brought [the ERA] to my attention, but my mother would always talk to me about it because she was very involved in the effort to get it ratified back in the early 1970s,” Surovell said regarding what pushed him to sponsor the resolution for ratification. “It struck me as unfinished business that we needed to accomplish.”

His viewpoint, however, wasn’t shared by the majority of the Virginia Senate. The resolution was defeated nine to five, with all the ‘no’ votes cast by male senators. Amidst an angry chorus of mostly female audience members singing “we shall overcome,” committee chairman senator Ryan T. McDougle (R- Hannover) cited technical reasons for not supporting ratification, including the aforementioned deadline that passed in 1982. Surovell argues that the deadline is not a valid reason to dismiss the possibility of ratification.

“Senator McDougal has produced what he claims is a letter from the archivist at the Library of Congress. The letter purports to say that [the amendment] is dead,” Surovell said. “People I’ve spoken to have said that the archivist at the Library of Congress isn’t the person who decides whether something is alive or dead; it’s really the Supreme Court and probably a judge. The United States Constitution does not specifically authorize Congress to place ratification deadlines on constitutional amendments, and it’s an open question as to whether Congress has that power or not. [Additionally], Congress has previously extended the ratification deadline for the ERA, and, in theory, they might be able to do that again.”

Additionally, Surovell cited instances when states ratified other amendments after the deadlines had already elapsed. For example, Virginia only ratified the nineteenth amendment in 1952, forty years after it was initially passed by Congress.

“There’s all kinds of reasons why ratification might be legal, and at minimum it’s at least symbolically important for Virginia to show that Virginia supports the concept,” Surovell said. “I think we should continue to push it notwithstanding the legal objections because that can be sorted out by a court later.”

ERA skeptics have also raised questions about the extent to which ratifying the amendment would advance women’s rights. Many wonder whether the amendment would really make much of a difference at all, given that the courts frequently extend other anti-discrimination clauses to cover cases dealing with women’s rights.

According to Surovell, ratifying the ERA would ensure that cases dealing with discrimination on the basis of sex would be given the same legal weight as the constitutionally protected classes of race, religion and national origin.

The court applies different levels of scrutiny to cases dealing with discrimination. When an individual wants to challenge a government action that they believe violated due process or the equal protection clause, one of three classes of scrutiny are applied to their case. Strict scrutiny, the most thorough of the classes, mandates that the government must justify their action against the individual instead of placing the burden on the plaintiff.

Currently, strict scrutiny is only applied to cases dealing with discrimination against people in the protected classes of race, religion and national origin. Because gender isn’t a constitutionally protected class, intermediate scrutiny is the highest level of scrutiny that can be applied to a case in which the plaintiff is suing because of sex or gender discrimination.

“There are all kinds of government and policy decisions that hit women differently than everybody else, and I think [the ERA] would give women the ability to challenge those decisions in the same way that people can based on race,” Surovell said. “Also it’s important to note [that] if the equal rights amendment was adopted, then it would also allow men to sue on the basis of sex discrimination.”

Next year, the Virginia legislature will likely be given another opportunity to ratify the amendment. Until then, Surovell encourages high schoolers to dispel the common myth that gender discrimination is prohibited by the Constitution.

“I think it’s important for high schoolers to talk to each other and raise awareness about the fact that this hasn’t been done. They should reach out to their state delegates and state senators and other state officials like the attorney general and make sure they understand that their constituents are looking at this issue and care about it,” Surovell said. “I don’t think our society can be truly equal until women’s rights are in the Constitution for more than just voting. Right now, voting is the only right that women have a constitutional protection for. That’s it.”

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