“Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
~ Section 1, Equal Rights Amendment.
When Virginia became the 38th state to ratify the Equal Rights Amendment (ERA) on January 15, the public response was part celebration, part confusion, and part foreshadowing of a national battle that says much about divisions that haunt our nation. A fair number of South Dakotans are asking, “What does all this have to do with us?”
It turns out, a lot.
Don’t American women already have equality?
Constitutionally, no.
Women do have legal protections such as the Equal Pay Act of 1963, the Pregnancy Discrimination Act of 1978, and Title IX of the 1964 Civil Rights Act. But the only right the U.S. Constitution specifically applies equally to women and men is the right to vote. Broadly speaking, protections in the U.S. Constitution provide the bedrock for legislation and make other legal protections difficult to roll back as political winds shift.
A Constitutional amendment can be voided by a new amendment (think prohibition) but otherwise they are considered “in toto and forever.” (Thank you, James Madison.)
In other words, if you’re fighting for equality in your professional, education, or personal life, Constitutional protection holds considerably more consistent weight than legislative protection.
Didn’t South Dakota already ratify the ERA?
Yes. But not indefinitely.
South Dakota ratified the ERA on February 5, 1973. (For reference, Democrat Dick Kneip was governor.) The original deadline for ratification, set by the U.S. Congress (more on that later) was March 22, 1979. (Again, for reference, by then, Republican Governor Bill Janklow led the state’s executive branch.)
As the deadline approached, the ERA did not have the needed 38 states to ratify the amendment. Thirty five (including South Dakota) had ratified, although legislatures in Nebraska, Tennessee, Idaho, and Kentucky had subsequently rescinded their ratification, a controversial legal tactic with implications today.
When the U.S. Congress extended the deadline for ratification to June 30, 1982 (another controversial legal tactic with implications today), South Dakota lawmakers cried foul. To show their disapproval of the extension, they passed a resolution that declared a “sunset” on South Dakota’s yes vote. Ratify by the original deadline, they declared, or count South Dakota out.
Zero states ratified the ERA between the original deadline and the extended deadline, so the sunset clause, and the extension itself, were mostly symbolic.
Or were they?
So, what just happened in Virginia?
First, some recent history.
Following the election of President Donald Trump in 2016, the ERA once again gained traction. As women donning pink hats marched for equal rights across the country, many started talking publicly about how rights they believed were well-established might be easily, and devastatingly rolled back. Devoted ERA advocates had, of course, worked tirelessly for decades, but new energy now fueled the moment.
Nevada ratified the ERA in 2017 (that’s state number 36, if you’re keeping count) and Illinois followed suit in 2018 (ratification number 37.)
In November, 2019, the people of Virginia voted a record number of women into their state legislature. On January 25, NPR’s Sarah McCammon reported “The Virginia Senate voted 28-12 and the House of Delegates 59-41 to approve the ERA.”
Thirty eight states have ratified the ERA, advocates cheered. Cue the confetti. And the confusion.
Wait. Hadn’t the deadline for ratification passed?
Yes. The legal question now is whether or not Congress had the authority to impose the deadline in the first place. The deadline, advocates note, was not included in the text of the original amendment, and therefore many not have been valid.
Those who would like to see the ERA defeated argue that ratification is a few decades too late. If America wants an Equal Rights Amendment, they need to start at the beginning and try for ratification all over again.
Who is poised to block ratification of the ERA through legal challenges to the ratification process?
The people of South Dakota, among others.
South Dakota Attorney General Jason Ravnsborg is joining his counterparts in Alabama and Louisiana in a lawsuit to block the implementation of the ERA. Essentially, their goal is to prevent the national archivist from adding the ERA to the U.S. Constitution.
Fun fact: David S. Ferriero was confirmed as 10th Archivist of the United States on November 6, 2009. He’s a civil servant and career librarian. Ferriero is currently proceeding with caution. Not many archivists get to oversee the ceremonial amendment of the Constitution. Still, this isn’t one man’s decision.
The Justice Department has issued an opinion that supports Ravnsborg’s position (hence Ferriero’s justification for holding off) but eventually the decision about whether or not the ERA stands will lie with Congress, and possibly the U.S. Supreme Court
What happens next?
Ravnsborg says, for now, we wait.
Virginia will transmit the ratification. Archivist Ferriero will hold up the certification (upon advice of the Justice Department) until he receives a court order to do otherwise. Ravnsborg predicts the whole process will eventually land South Dakota in front of the U.S. Supreme Court.
Is blocking the ERA a valuable use of South Dakota’s limited resources?
Ravnsborg thinks so.
The South Dakota lawsuit is an effort to reflect the legislative authority of the South Dakota state legislature. But lawmakers are already bending Ravnsborg’s ear about the possibility of a new resolution — one that demonstrates, at least symbolically, the state’s support for the ERA.
Would South Dakota support for the ERA in 2020 make a difference as Ravnsborg moves forward? Perhaps not. The attorney general says the legal details of this case matter, and his efforts are more focused on protecting the process of amending the Constitution than they are a value judgement regarding the ERA.
Do South Dakotans support the ERA today?
Not universally. Ratification of the ERA has always been controversial.
Issues like women’s healthcare (including abortion rights), the military draft, and equal rights for transgender people all fold into the discussion over how equal rights are expressed in our day-to-day lives. Opponents to the ERA argue that American women already enjoy equality and that Constitutional protections can have unintended consequences such as eliminating traditional protections for women (in child custody proceedings, for example) and of bringing equality to groups who, decades ago, were pushed even further to society’s margins.
These are not new arguments.
As advocates fought for the ERA in the 1960s and 1970s, for example, opponents worried that Constitutional protection for women would mean American daughters would be hurled into combat alongside American sons. Opponents (and some advocates) also bemoaned the pejoratively labeled “Lavender Menace” and openly questioned the impact of LGBTQ people and people of color working alongside white women for equality. There was even talk of whether the ERA would create, by default, gender-neutral bathrooms.
Sound familiar?
The debate is sweeping and deeply personal. In today’s South Dakota legislature, a new resolution to support Constitutional equality would most certainly be embroiled in fierce debate.
In a year when women celebrate the 100th anniversary of suffrage (without the 19th Amendment, remember, women would not have equality at the ballot box) it seems particularly striking to hear Ravnsborg lay out his plans for blocking the Equal Rights Amendment. In December of 2019, Virginia Attorney General Mark Herring told NPR’s Ari Shapiro that “the fact that it’s almost 2020 and there are still states that are trying to block women’s equality from being a part of the U.S. Constitution is repugnant.”
Ravnsborg didn’t hear Herring’s comments, but he says he “respectfully disagrees” with Herring’s assessment of the lawsuit.
“I think we need to start over,” Ravnsborg says. “And I think that would actually be healthy for the country. Let’s have a discussion about it in modern times. I don’t think that the ERA that they passed in 1972 are some of the things they contemplated today. I think there are a number of things that have been improved upon since the time of the ERA.”