Despite Virginia ratification vote, ERA’s status remains in limbo, maybe ‘RIP’

In 2020, the Virginia General Assembly ratified the Equal Rights Amendment (ERA), becoming not only the 38th state to endorse it but also the final one to satisfy the required two-thirds majority needed to amend the U.S. Constitution. Although equal rights activists celebrated the state’s passage of the ERA, the long journey toward ratification didn’t end. In fact, a new chapter was just beginning. And the finale could spell doom for proponents.

Court suits

When Congress passed the ERA with a super majority back in 1972, the preamble included instructions giving the states seven years to secure the necessary two-thirds approval. When that didn’t happen, Congress passed an extension for three more years (until 1982), but the move also failed to result in the necessary support from the states.

Consequently, Virginia’s ratification 28 years later triggered litigation over whether its belated ratification was effective. Virginia and two other late-ratifying states filed suit in the U.S. District Court for the District of Columbia to compel the U.S. archivist to certify the ERA as the 28th Amendment to the Constitution. They argued the deadlines set by Congress were included in the preamble only (not the text) of the proposed amendment and therefore weren’t binding.

Judge Rudolph Contreras recently dismissed the case, explaining “the Archivist has no duty to publish and certify the ERA.” The ruling didn’t address the issue of deadlines or deadline extensions. No decision to appeal the judge’s decision has yet been made.

Legislative action