Virginia will pass the ERA in 2020, then the legal games will begin


Supporters of the Equal Rights Amendment are so confident Virginia is on the verge of becoming the critical 38th state to ratify the gender equality measure, they are already making plans for how they will celebrate.

The Associated Press reports, Lawmakers pledge ERA will pass in Virginia. Then what?

In Virginia, the ERA’s future is bright: Democrats who seized control of the state legislature in November say there is unanimous support in both their House and Senate caucuses.

“It will pass,” Virginia House Speaker-elect Eileen Filler-Corn said pointedly at a recent news conference attended by cheering advocates, some of whom have been working on the issue for decades.

Virginia supporters have framed ERA ratification as a chance to rebut the state’s long history of racist and intolerant policies.

In the past, Virginia “fought against desegregation … fought against interracial marriage … fought against women’s right to vote,” said Jennifer Carroll Foy, chief patron of the House ratification resolution who is also a member of the black caucus and one of the first women admitted to the historically all-male Virginia Military Institute. “And it is only poetic justice that now we stand on the right side of history and finally give women their full constitutional equality.”

After a ratification vote, Virginia is expected to submit copies of the state’s resolution to the U.S. archivist. State Attorney General Mark Herring said when that happens, he will include legal arguments in support of the ERA.

And that’s when the legal games will begin.

[T]he jubilation could be largely symbolic. Despite broad support for the amendment in the state, the ERA’s prospects nationally are substantially more complicated.

The proposed 28th amendment to the U.S. Constitution faces a host of likely legal challenges and vehement opposition from conservative activists who depict the ERA as a threat to their stances on abortion and transgender rights.

The passage of time is also a factor. When the measure passed Congress in 1972, lawmakers attached a 1977 ratification deadline to it, then extended it to 1982. While the Democrat-controlled House of Representatives is likely to extend the deadline again, the Republican-controlled Senate may balk, increasing the chances of litigation. Lawsuits also could be waged over an attempt by five states in the 1970s to rescind their initial support for the amendment.

So what about the deadline?

Constitutional amendments don’t normally have ratification deadlines; in fact, the 27th Amendment was ratified in 1992, more than two centuries after Congress passed it. And supporters argue that the Equal Rights Amendment deadline is unenforceable because it is stated only in the preamble to the amendment, not in the amendment itself.

But whether or not the deadline is legitimate, there is a good chance Congress will get rid of it.

What the Republican-led Senate will do is less certain: As he has done with many pieces of legislation, the “Grim Reaper” of the Senate, Senate majority leader Mitch McConnell of Kentucky, could refuse to allow a vote.

Then Mitch McConnell and other patriarchal Republican Senators should be removed from office in 2020, hopefully by women seeking to replace them, to create a Democratic majority. Let’s get this done.

At least one legal challenge is already underway. Alabama, Louisiana and South Dakota filed a lawsuit in federal court in mid-December seeking to prevent the U.S. archivist from accepting a new ratification.

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Herring, who personally supports the proposed amendment, said his office has been preparing for a long time for potential challenges to Virginia’s ratification.

“If we have to go to court, I won’t hesitate,” he said.

House Democrats propose ratification of ERA in 2019.Emily Martin, general counsel for the National Women’s Law Center — which supports the ERA — is uncertain what lies ahead. But she hopes that a campaign for ERA ratification will kindle a new surge of women’s activism comparable to the women’s marches of 2016 and the subsequent emergence of the #MeToo movement.

“Mobilization around ensuring women’s equality is really important at this moment when the Trump administration is going backward in so many ways that are harmful to women and girls,” she said, referring to President Donald Trump.

Some of the ERA-related arguments surfacing now are similar to those that flared in the 1970s. Would ratification mean that women, as well as men, are subject to the military draft? Would it undermine workplace laws intended to protect women?

The draft issue is moot. First, there hasn’t been a draft since the end of the Vietnam war in 1973. Second, in February 2019, a federal judge ruled that the law requiring men — but not women — to register for a U.S. military draft is unconstitutional, but it has no immediate impact on women or the U.S. Selective Service System. After Court Ruling, Here’s What’s Next for Women and the Draft:

Judge Gray Miller of the U.S. Southern District of Texas ruled Friday that the Military Selective Service Act discriminates on the basis of gender. He said the U.S. Selective Service System’s arguments in defense “smacked of ‘archaic and overbroad generalization about women’s preferences.'” The arguments, as interpreted by Miller, included concerns that a draft for both genders would have a negative impact on military recruiting because women might believe they will be forced into combat positions if they enlist.

“At its core, the defendant’s arguments rest on the assumption that women are significantly more combat-averse than men,” Miller wrote.

The ruling does not order the federal government to change its policy on who must register, nor does it make any recommendation to Congress, which would have to change the laws governing the Selective Service System to require women to sign up.

Miller’s decision comes as a congressional commission weighs the future of national service, including draft registration for women and men. The National Commission on Military, National and Public Service is expected to release a report [in 2020] on recommendations for the Selective Service System and other opportunities for young people within the federal government.

And finally, tell it to the women who have long served in the Israel Defense Forces (IDF). Israel is the only country where military service is obligatory for both men and women. Women constitute approximately a third of the conscripts and close to twenty percent of the standing professional army.

If it’s good enough for Israel, it should be good enough for those conservative fundamentalist Christians who pretend to venerate Israel as part of their apocalyptic end-times cult of the Rapture. Phyllis Schlafly’s pearl-clutching over women serving in the military is long since over with women serving in combat in the U.S.military.

But some of the liveliest debate over the coming months will likely deal with two hot-button social issues that have evolved significantly since the ’70s: abortion access and the rights of transgender people.

While abortion has been legal nationwide since the Supreme Court’s Roe v. Wade ruling in 1973, many Republican-controlled states have passed tough anti-abortion laws in recent years and are hopeful the high court might repeal or weaken Roe.

Anti-abortion activists worry that the ERA, if ratified, would be used by abortion-rights supporters to quash abortion restrictions on grounds they specifically discriminate against women.

“That’s the whole reason ERA has been brought back,” said Anne Schlafly Cori of the conservative advocacy group Eagle Forum [what is it with the nepotism and/or hereditary succession in all these right wing organizations? Jerry Falwell, Jr., Franklin Graham, etc.?] “The proponents are concerned about Roe being stripped away by the Supreme Court, so they’re trying to shoehorn the ERA into the Constitution.”

“Any vote for the ERA is a vote for abortion,” said Cori, whose mother, Eagle Forum founder Phyllis Schlafly, spearheaded a highly successful opposition movement to the amendment in the ’70s.

Reality Check: What we are really talking about is the standard of review to be applied in abortion restriction cases. In Planned Parenthood v. Casey, 505 U.S. 833 (1992), the Supreme Court replaced the strict scrutiny standard of review for fundamental constitutional rights or a suspect classification in Roe v. Wade with the “undue burden” standard of review for abortion restrictions — a subjective and frequently abused by judges standard of review. If the ERA adds women to the protections the Constitution afforded to every man since its enactment, the argument would be that the strict scrutiny standard of review applied in Roe but rejected in Casey should be restored, i.e., that a law which only applies to women is a “suspect classification” subject to the strict scrutiny standard of review, and the subjective “undue burden” standard of review in Casey should be retired to the ash heap of history.

“Legal scholars, including judges and professors, often say that strict scrutiny is “strict in theory, fatal in fact” since popular perception is that most laws subjected to the standard are struck down. However, an empirical study of strict scrutiny decisions in the federal courts found that laws survive strict scrutiny more than 30% of the time.” So spare me all your hyperventilating hysteria Ms. Schlafly. You’re as much a deranged demagogue as your mother.

Martin affirmed that abortion access is a key issue for many ERA supporters; she said adding the amendment to the constitution would enable courts to rule that restrictions on abortion “perpetuate gender inequality.”

The issue of transgender rights was far from the spotlight in the 1970s, but is likely to be a divisive topic in the coming ERA debate. Some ERA opponents are trying to kindle alarm over the possibility that the amendment would be used to ensure nationwide protections for transgender women seeking to use women-only restrooms and locker rooms.

“The ERA would be used to impose the most radical consequences of the new ‘gender revolution,’ which allows men to declare themselves women and vice versa,” said Penny Nance, CEO of Concerned Women for America, another conservative advocacy group.

This is a return to 2013 when Arizona state Rep. John Kavanaugh was pushing his Show Me Your Papers Before You Pee bill (it was not enacted after public opposition), which spread to other red states such as Texas, Kentucky and Florida by 2015. North Carolina’s 2016 “show me your papers before you pee” law was struck down in 2019. Judge’s Ruling Means Trans People Don’t Need Birth Certificates To Pee In Peace In North Carolina. Also in 2019, the U.S. Supreme Court rejected a challenge to a Pennsylvania school district’s policy that allows students to use bathrooms and locker rooms that match their gender identity. Supreme Court rejects appeal over transgender bathroom policy, so where does that leave AZ? “Unfortunately, there is no direct impact to the people in Arizona.” This is just the haters of “others” beating a dead horse because their fear and hatred of “others” is the only thing that motivates them.

Jennifer Boylan, a transgender writer who teaches at Barnard College in New York City, depicted such rhetoric as “the hysteria of right-wing scaremongers.”

“The ERA won’t take away anyone’s rights; it will simply make the country a little fairer,” she said.

Among the Virginia lawmakers who will soon vote on the ERA is Danica Roem, the first openly transgender person to be elected and seated in a state legislature.

“Equality for women is about equality for all women,” she said. “LGBTQ women are women. And we’re not going away.”

The Arizona legislature will again have a bill to enact the ERA when it convenes in a couple of weeks. Arizona should join the state of Virginia in approving the ERA, and join the 21st Century. And amend the Arizona Constitution while you are at it!