Virginia May Ratify The Equal Rights Amendment — Could It Become Law?

Chip SomodevillaGetty Images

The Virginia State Senate has passed the Equal Rights Amendment, passing the measure to the state’s House of Delegates to consider, which could pose a serious Constitutional question of legality for the long-desired law.

The measure passed the state Senate with bipartisan support. Every Democratic lawmaker in the Republican-led chamber voted for the measure, and seven members of the GOP joined them in its 26-to-14 passage, according to reporting from the Washington Post.

The measure moves onto the House of Delegates where it faces tough chances of passage. Republicans have a narrow majority in that chamber presently. Beyond passage in Virginia, however, the status of the ERA lingers in doubt.

Originally passed by Congress in 1972, the ERA originally read the following.

“Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

The amendment was soon after passed onto the states, where it needed a requisite three-fourths of state legislatures to approve of the measure. That means getting 38 states to approve of it.

Congress stipulated in its original resolution passing the ERA that it had to be passed within seven years. It passed an extension after only 35 states had passed it by 1979, but even after the extension was passed, conservative groups blocked its passage in additional states. By 1982, no other state had passed the ERA, leaving it three states shy of the necessary number required to ratify it into the Constitution, per a report from the New York Times.

Despite not reaching the deadline, two other states since then have passed the ERA, and if the House of Delegates agrees to pass it now, the requisite 38 states would finally be reached to ratify it.

What would that mean? There are two schools of thought to consider on the issue.

The first is the simplest: the original resolution specifically required all of the states necessary to pass the amendment to do so within an allotted period of time. That didn’t happen, and so the amendment’s passage in the additional states is moot.

The second line of thinking is a bit more complicated. Other Constitutional amendments have, in fact, been passed over many decades of states ratifying them. The 27th amendment, originally introduced in 1789 as part of the Bill of Rights, wasn’t passed more than 200 years later, according to Mental Floss.

Amendments have had deadlines instilled in them before, but most of the time those have been included in the text of the amendments themselves.

And there’s one other thing to consider: there’s more than one way to introduce an amendment for consideration. Two-thirds of the states can pass a measure, after which it then goes on to the remaining states to consider for adoption. If three-quarters of states then agree to it as well, it then becomes an amendment.

The original deadline saw 35 states attempt to ratify the amendment, yet created a stipulation for how long it would take to do so. But then a new question comes about: after 35 states passed the ERA back in the 1970s, does that render the resolution void? Does passage by more than two-thirds of the states trigger the other way in which an amendment can be proposed?

It’s an interesting set of questions and will require legal experts to weigh in. It’s possible the Supreme Court may also have to discuss the issue themselves if Virginia’s House of Delegates does indeed vote for its passage.