ERA ratification: Proponents say looming battle will heat up courts and elections

VAratifyERA, Generation Ratify and other ERA advocates campaigned for ratification in Virginia and helped flip the statehouse to Democratic control in elections last fall. Photo courtesy of Equal Means Equal

The Equal Rights Amendment, proposed in 1972 to guarantee that equality of rights shall not be denied or abridged on account of sex, has surged into the public spotlight after decades of neglect.

The women’s march in Orlando led to a rally at City Hall. Photo courtesy of Florida NOW.

Whether it becomes the 28th amendment enshrined in the U.S. Constitution will be decided in a series of court battles, but ERA advocates say in any event, it will be an election issue this fall.

“This battle will be won, either in court or in elections,” said Kim Porteous, president of Florida National Organization for Women, or NOW. “It’s essential that we know our lawmakers support equal rights for men and women. If not, we will make that known and vote them out.”

Porteous pointed to the state of Virginia, where Democrats flipped both legislative chambers last fall after running progressive campaigns focused on passage of the ERA, gun safety in the wake of deadly shootings, and minimum-wage increases.

Virginia House Delegate Hala Ayala, in blue jacket, a sponsor of that state’s ERA, greets Equal Means Equal President Kamala Lopez outside the state capitol in Richmond. Photo courtesy of Equal Means Equal

With strong support from educated, suburban women – a constituency that has soured on Republicans since the election of President Trump – Democrats control the Senate, the House of Delegates and the governor’s office, and the House just elected its first female Speaker of the House.

In Florida, Republicans control both chambers and the governor’s office. Legislation to ratify the ERA in Florida has been introduced in recent years but not heard in committee; it is sponsored this year, too, but to date has not been scheduled for hearings in either chamber.

So be it, says Porteous, who contends that conservative lawmakers who block even a debate on the ERA in Florida will be held to account by voters because the amendment touches so many hot political issues: reproductive rights, health care, gender identity, housing and workplace discrimination, violence against women, and equal pay for equal work, to name a few.

Lee County NOW campaigned for the ERA over the M.L. King holiday weekend. Courtesy of Lee County NOW

She predicts Republicans in Florida, like those in Virginia, will regret aligning themselves with the evangelical voting bloc that opposes gay rights, reproductive rights and women’s rights.

“They’re anti-woman and anti-equality,” Porteous said. “They’re not concerned about health care, or they would support affordable health care and expand Medicaid right here in our own state. They would let doctors do their jobs. They would lift any statute of limitation on reporting violence against women. They would provide full funding for rape kits. They would legislate equal pay for equal work.”

Senate President Pro Tempore David Simmons and state Rep. Bob Rommel are Republican chairmen of the judiciary committees where 2020 ERA legislation would be considered.

They could not be reached Tuesday to comment on why pending ERA bills are not scheduled for hearings in their committees.

Democratic support is at the ready, said Jackson Peel, spokesman for Florida House Democrats.

Women’s march in Lee County on Jan. 20. Courtesy of Lee County NOW.

Reps. Fentrice Driskell, Dotie Joseph, Patricia Williams and Geraldine Thompson are among the lawmakers pushing ERA and equal-pay legislation in the House. The lawmakers represent parts of the big urban areas of Florida: Hillsborough, Broward, Miami-Dade and Orange.

Senate Minority Leader Audrey Gibson of Duval County, Orlando Democrat Linda Stewart and Palm Beach Democrat Lori Berman  are among the champions in the Senate. Sen. Jeff Brandes, representing part of Pinellas, is the rare Republican among the cosponsors of ERA and equal-pay legislation.

NOW, Planned Parenthood and other women’s rights groups held marches and rallies around the nation over the Martin Luther King Jr. holiday weekend, which coincided with the anniversary of the 1973 landmark Roe v. Wade decision on abortion rights in the U.S. Supreme Court.

Meanwhile, the Commonwealth of Virginia is in the spotlight, having just become the milestone 38th state to ratify the ERA.

Celebrations in the capital were postponed when Gov. Ralph Northam declared a state of emergency ahead of a scheduled pro-gun rally that brought thousands of armed activists to Richmond this week from around the country, according to news reports.

Linda Guilloti, VP of Miami-Dade NOW, speaks at the Fort Myers ERA rally.

On Monday, the Virginia Senate and the House of Delegates will ceremonially accept each other’s ratification votes and transmit their unified document to the Archivist at the National Archives and Records Administration in Washington, D.C., which would record and preserve them with the documents of the previous 37 ratifiers.

The Archives office is expected to reject Virginia’s documents, as instructed by the Trump administration’s Department of Justice. The DOJ sides with Republican attorneys general in Alabama, Louisiana and South Dakota who recently filed a lawsuit in the U.S. District Court of Northern Alabama contending the deadline for ratification of the ERA expired before the requisite 38th state approval was achieved.

Equal Means Equal, a law and advocacy organization based in Boston, filed a countersuit in U.S. District Court in Massachusetts saying Article V of the Constitution spells out how to set a deadline in a proposed amendment and that the one associated with the ERA does not conform.

The countersuit argues that the 1979 deadline set by Congress and then extended to 1982 appears in a preamble (not in the amendment itself) and is not binding on the states because they did not vote on the preamble.

Natalie White (left) and Kamala Lopez are leaders of Equal Means Equal, which filed suit in Boston to help Virginia officially become the 38th ratifier of the ERA.

On the other hand, the 20th, 21st and 22nd amendments were ratified with deadlines specifically written into their texts.

“The facts in law and the wording in the Constitution are clearly on our side,” said Equal Means Equal Vice President Natalie White, who in 2016 walked 250 miles from New York to D.C.in 16 days to demonstrate her support for the ERA.

For the Trump administration to work against the implementation of the amendment, she said, violates the 38 states’ rights to adopt it and violates Article V.

The attorneys general of the three states suing to block the Virginia ratification also contend that five states rescinded their approval of the ERA and that the states of Nevada and Illinois, like Virginia, ratified too late, causing the amendment to fall short of the requisite approval by three-fourths of the states.

White said no constitutional amendment has ever allowed states to withdraw prior approval, called rescission, and the 14th Amendment was ratified despite two state rescissions.

Equal Means Equal President Kamala Lopez, who campaigned in Virginia to help flip Republican seats that ushered in Democratic control, said that while the ERA is literally headed to court, the court of public opinion also has a crucial role to play.

Her organization’s lawsuit, describing the harms caused by inequality, says nearly half of women experience sexual violence in their lifetime and many do not report it because “they expect the government not to provide effective redress, and they fear the legal system will cause additional harm.”

Other harms, including unequal pay and inequitable access to health care, may be addressed by statutes, she said, but those can be passed one year and repealed the next. What is required and long overdue, she said, is a permanent and nationwide Constitutional amendment that enshrines equal rights for good.

Lopez predicts the dispute over the ERA will not end until the U.S. Supreme Court resolves it. While some ERA advocates do not want to forge ahead – fearing the court as now composed will rule against the amendment –   Lopez believes the time is right.

“They feel it’s a very conservative court. That’s exactly why we should win. These are federalists and originalists. We’re asking them to follow the Constitution,” she said.

Meanwhile, Lopez said, Equal Means Equal expects to strengthen its hand in the next few months by gathering evidence that Americans around the nation are being harmed by not having equal rights and that they overwhelmingly support adoption of the ERA.

And, in addition to all that, they intend to influence elections this fall to result in more flips like the one in Virginia.