There is an important reality that most Americans don’t understand. According to a poll by the ERA Coalition/Women’s Equality Fund, 80% of Americans mistakenly believe that women and men are guaranteed equal rights in the U.S. Constitution. In reality, they are not. Even former Justice Antonin Scalia recognized that the U.S. Constitution does not prohibit sex discrimination. The federal Equal Rights Amendment (ERA) is intended to change that.
The ERA was first passed by Congress and sent to states for ratification in 1972. By 1977, 35 of the required 38 states had ratified the ERA but the last three states remained elusive. In 2016 and 2017, Nevada and Illinois became the 36th and 37th states to ratify the ERA, respectively. Now, only one more state is needed to ratify the ERA and ensure sex discrimination is outlawed by the supreme law of the land. Virginia can and should be the 38th and final state.
What would ratification of the ERA mean? First, it would mean formal, legal recognition of every American’s right to be free from sex-based discrimination. This would be a symbolic, legal and practical victory.
Practically and legally, the ERA would mean cases alleging sex-based discrimination would be evaluated using the same heightened legal standard applied in cases alleging race-based discrimination. Laws and policies that discriminate on the basis of sex wouldn’t be immediately thrown out, but they would be subject to strict scrutiny when challenged. This means that the entity with the law or policy would have to show that it served a compelling government interest in the least restrictive means available. Currently, laws that discriminate on the basis of sex only need to be substantially related to a government interest, without any attention to whether there is a less discriminatory means to achieve the same end.
In addition, ratification of the ERA would create a single national constitutional standard under which any discriminatory act by any local, state or national government action based on sex would be judged.
The current hodgepodge of federal, state and local statutes and ordinances across scattered areas of law has proven insufficient to eradicate gender inequality, despite the best efforts of the ACLU of Virginia and countless other advocacy organizations in courts across the nation. Virginia provides a particular case in point. Virginia’s state constitution was amended in 1971 to include an explicit ban on discrimination based on sex (a state “equal rights amendment”). This victory, however, was erased by a Virginia Supreme Court decision holding that the state-level ERA should be read to provide no greater protection against such discrimination than the federal constitution, which includes no such protection. So, even when the text of the state constitution, the highest law in Virginia, would seem to provide protection from sex-based discrimination that appears more comprehensive than federal protections, those protections can be and have been eviscerated by the opinion of seven jurists.
We won’t stop fighting to overturn this reading of the Virginia Constitution and to challenge discrimination as violating the equal protection clause of the U.S. Constitution, but we’d love another tool to use in this fight. An amendment to the U.S. Constitution would provide the strongest protection available and a powerful tool to fight lingering sex-based discrimination. Virginia should ratify the ERA and make real what most Americans believe – the Constitution of the United States should guarantee equal rights for all.
Call your state legislator and let them know you support ratifying the ERA!