ERA supporters rally outside the Florida Supreme Court in 1982. State Archives of Florida/Phil Coale
Equal Rights Amendment supporters in Florida cheered an important Senate committee vote Thursday in Virginia — which is expected to become the final state needed to ratify the federal ERA.
But the five-decades-old proposition faces new legal battles backed by the Trump Administration that could tie up the measure for some time.
And in Florida, ERA supporters can’t even get a legislative hearing after all these years.
The Constitutional amendment — designed to ensure equality for U.S. citizens under the law, regardless of their sex — passed overwhelmingly in the U.S. House and Senate in the 1970s, but has failed to win approval by the 38 states needed for ratification, including Florida.
In 2018, Illinois became the 37th state to ratify the ERA.
Backers of the amendment are pinning their hopes on the Democratic-controlled Virginia Legislature, which voters flipped from Republican control in November. A Senate committee there approved a measure Thursday to ratify the ERA on a 10-5 vote, paving the way for full adoption.
Kim Porteous, president of Florida’s National Organization for Women, told the Florida Phoenix that she and ERA proponents around the country are elated by Virginia’s advance toward the historic milestone and the woman power there that is making it happen.
“We’re more excited than ever. This is what rocked the elections on Nov. 5,” Porteous said, having just returned to Florida after lobbying for the ERA in the Virginia capital.
That said, Porteous said she is sorry that Virginia and not Florida will become the state that historically tips the scales toward national adoption of the ERA.
Legislation to approve the ERA in Florida “can’t even get a hearing,” Porteous said.
Meanwhile, court battles are brewing.
Attorneys general in several states, the U.S. Department of Justice, and members of Congress are at odds over whether the deadline for passage of the ERA has expired.
The attorneys general of Alabama, Louisiana and South Dakota recently filed a complaint in U.S. District Court in Alabama saying it’s too late to ratify the ERA and that efforts to pass it would have to start from scratch.
When Congress proposed the ERA in 1972, it was to be ratified or rejected within seven years. Congress extended its deadline to 1982 but still the amendment did not gain the 38-state approval it required.
“Thus, the ERA can no longer be ratified,” says the complaint, signed by Alabama Attorney General Steve Marshall, Louisiana Attorney General Jeff Landry, and South Dakota Attorney General Jason Ravnsborg.
They contend that five states rescinded their prior ratification of the amendment, two ratified it after 1979 and shouldn’t count, and no future ratifications should count.
Legislation pending in Congress would eliminate the deadline, but it has not been approved.
Further, the attorneys general claim the Equal Rights Amendment – “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex” – would “seriously injure” their states by providing rights that could lead to challenges of their restrictions on abortion, bans on public funding for abortion, and separation of men and women in sports teams and in prisons.
Technically, the complaint filed by the attorneys general targets the National Archives and Records Administration, arguing that it should not accept Virginia’s ratification of the ERA when it comes, which would leave the amendment short of the requisite 38-state approval.
The Archives and Records Administration, pressured on one hand to accept the Virginia ratification and on the other to reject it, sought guidance on the matter from the Trump Administration’s Department of Justice, which issued a lengthy opinion this week siding with Alabama, Louisiana and South Dakota.
“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 Justice Department’s office of legal counsel wrote in the opinion.
A countersuit was filed this week in Massachusetts, arguing that the deadline is not binding, citing a precedent in which an amendment took 203 years to ratify.
The complaint filed by the attorneys general and backed by Trump’s Justice Department reflect objections to the ERA long espoused by the Eagle Forum, a self-described pro-family forum founded by 1970s-era conservative icon Phyllis Schlafly.
In “10 reasons to oppose the Equal Rights Amendment,” Eagle Forum claims the ERA would prohibit any distinction between men and women, would overturn restrictions on abortions, would ban accommodations for pregnant women and welfare for women with children, would endanger women by barring gender-specific bathrooms, would make women subject to military draft and front-line combat, and would do nothing to improve women’s pay or status because they are not being mistreated now.
“With this [Department of Justice] opinion, we are hopeful ERA supporters in both Virginia and the rest of the country will stop claiming that there is only one state left to ratify the Amendment,” says Eagle Forum Chairman Anne Schlafly Cori, in a statement published on the group’s website.
Porteous said those arguments are nonsense and mask darker objectives, such as paying women lower wages and denying them reproductive freedom.
Florida Sen. Linda Stewart, an Orlando Democrat and ERA proponent, said opposition from the Trump Administration comes as no surprise.
“This is not unexpected. Those are states he’s counting on for his re-election,” Stewart said. “Everybody is excited. Virginia is going to be the 38th state to pass the ERA.”
Stewart supports passage of the ERA in Florida and is sponsoring legislation mandating equal pay for equal work. “This will be my third year on this,” she said. “How we can refuse to guarantee equal pay for equal work makes no sense to me.”
Porteous said Trump and other Republicans opposing passage of the ERA risk alienating large blocks of female and young voters.
“The fact that they want to block this in 2020 proves that they are out of touch with average Americans,” she said. “This will become a huge election issue.”
Porteous noted that 2020 marks the 100th year since Congress proposed the 19th Constitutional amendment granting women the right to vote. Florida did not ratify the suffrage amendment until 1969, 50 years after it was proposed and 49 years after it was ratified by the requisite majority of states.
“We had the opportunity to be the first on that. Our legislators got in the way then. We’re not going to let them get in the way now,” Porteous said “We won’t stop until all the states ratify.”
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