Below is Delegate Fowler's letter to his constituents about the passage of the Equal Rights Amendment (ERA).
Thank you for contacting me about the Equal Rights Amendment (ERA). According to the Archivist of the United States, the ERA is not currently pending before the states but is categorized as a failed amendment. The General Assembly does not have the power to ratify an amendment to the Constitution of the United States not currently pending before the states.
Congress submitted the ERA to the states in 1972 with a seven-year deadline for ratification. The amendment appeared to be moving quickly towards adoption with 35 states ratifying it when concerns were raised about potential unintended consequences, including the loss of religious liberties and its impact on public facilities.
Once those concerns were raised not only did no new states ratify the amendment, but 5 states rescinded their previous ratification. As the original 1979 deadline approached, Congress extended the deadline to 1982. When the second deadline passed, Congress declined to extend it again, effectively withdrawing the amendment from consideration. This fact was generally recognized by both proponents and opponents of the amendment at the time, as efforts to get additional states to ratify it ceased for more than a decade. Not only that but in 1983 proponents introduced a new ERA in Congress because the original amendment was no longer valid.
In 1992, the 27th Amendment to the US Constitution, dealing with Congressional pay, was ratified long after it was submitted to the states for ratification. This caused some ERA proponents to renew their efforts to get it adopted. The fundamental difference between the two amendments is that Congress did not set a ratification deadline for the 27th Amendment, while they did set a deadline for the ERA.
Since the submission of the Prohibition Amendment, Congress has routinely added a seven-year ratification time limit, except for two proposed Amendments (Women's vote which passed and Child Labor prohibition which did not pass). An Amendment granting full voting authority to residents of Washington DC with representation in the US Senate had a seven-year limit and also failed.
The passing of the ERA deadline has been recognized by the US Supreme Court. A lawsuit over ratification recension was pending before the Court and on October 4, 1982, in NOW v. Idaho, 459 U.S. 809 (1982), the U.S. Supreme Court declared the question of states rescinding their ratification of the ERA moot on the grounds that the ERA had expired.
Additionally, on February 3, 1994, the Attorney General’s office issued an opinion stating: "Because the Equal Rights Amendment was not ratified within the original or the extended time limit established by Congress for its ratification, it is no longer before the states for ratification, and any action by the General Assembly to ratify it now would be a nullity".
Some of the ERA proponents want to ignore facts that they do not like, such as the ratification deadline and that 5 states withdrew their ratification. While I certainly support equal rights for all, for the General Assembly to be able to consider the ERA, the US Congress needs to resubmit the amendment to the states for ratification. ERA proponents need to spend their time lobbying Congress and not trying to get the General Assembly to pass a resolution that would have no effect or worse spark a series of lawsuits.
Just because the ERA is no longer before us, does not mean that women do not have Constitutional protections. Courts have ruled that both women and men already have full claim to equal rights through the 5th and 14th Amendments to the U.S. Constitution. Additionally, Legislators have worked to address equal rights on both the state and national level. There are at least 50 laws in the Virginia Code and more than 125 Federal laws prohibiting discrimination on the basis of sex, including employment and equal pay protections.
Again, thank you for contacting me and please let me know if I can be of any further assistance.
Delegate Hyland F. “Buddy” Fowler, Jr.
Virginia House of Delegates
Capitol: (804) 698-1055
District: (804) 305-8867