The Equal Rights Amendment: Torn

Mark Rubin

On January 15, 2020, the Virginia legislature ratified the Equal Rights Amendment. Both legislative bodies passed it. (Candidly, I can’t figure out whether Governor Ralph Northam has any role in the ratification process. I think not, but I’m not sure.)

Congress passed the ERA when the Senate approved it on March 22, 1972. (I was 14 and now I’m 62, for whatever that’s worth.) The amendment gave the states seven years to ratify it. Later, Congress passed an extension of the deadline from March 22, 1979 to June 30, 1982. By June 30, 1982, 37 states had ratified the ERA; however, by the same deadline, five states from among the 37 revoked their ratifications.

Today, we are almost 38 years past the deadline for ratifying the Equal Rights Amendment. Have 38 states ratified it, or 33? If states which did not revoke their ratifications before June 30, 1982 knew a subsequent ratification might matter, would those states have revoked their ratifications? Can a state revoke a ratification of an amendment to the U.S. Constitution? And, finally (at least for me), does it matter one whit that the ratification deadline appears in the preamble to the amendment, and not in its body?

G-d bless the world for presenting thorny legal issues, for without them I suspect I’d have made a living digging ditches! Still, I’m deeply troubled by what the Virginia legislature did today.

I am the father of a daughter I love with every molecule in my body (and, as a chemist, she tells me I have lots of them.) I love my GF / law partner almost as much, adore my daughter’s mother and, frankly, think the world benefits greatly when we let women take charge. (I’ve turned a bit iffy on Elizabeth Warren, but not because I’ve found another candidate I like better. And, certainly, not because I’ve found a guy, running for president, I like better. Truth be told, while I will vote for anyone other than Trump, Biden, Buttigieg, and Sanders excite me not all. If Senator Warren slips, I think I like Michael Bloomberg.)

My appreciation for women aside, I don’t like the notion that one state can take almost 48 years to ratify an amendment, but states which acted 40+ years ago cannot change their minds. We need the Equal Rights Amendment, but we need it via a process that no one can challenge.

My concerns really highlight something far more important than the ERA … and I think that says much. President Donald Trump’s presence destroys norms, but he’s a product of a system which decided, years ago, that winning now matters more than following the rules. I think the Rs own this disaster, but I respect the claims that both the Ds and Rs own it.

Normative behavior, more than anything else, defined our nation for centuries. As important as I think equal rights for half of us are—and the need to express that right to equality in our Constitution—I fear for our nation if a court tells us we amended the Constitution, to adopt the Equal Right Amendment, on the facts before us.