RICHMOND, Va. — Nearly five decades after legislatures began ratifying the Equal Rights Amendment, Virginia became the key 38th state to do so Wednesday _ giving it the three-fourths support needed to make it part of the U.S. Constitution.
But opponents of the ERA — which says citizens can't be denied any rights based on sex — say the ratification isn't valid because the 1982 deadline Congress set expired before enough states had voted for it.
The General Assembly, led by Democrats who campaigned on the issue, made ratification its first order of business, voting to approve the resolutions in each chamber a week after lawmakers first convened for this year's session. First lady Pam Northam and her daughter watched from the House gallery.
"This is a vote of a lifetime," said Delegate Jennifer Carroll Foy, D-Prince William, before the vote took place in the House. She led the charge in the Virginia Legislature for passage of the ERA.
"Never again will you able to affect the U.S. Constitution and solidify and enshrine women's equality into our founding document," she said.
"It is time to change our standard of equal to truly mean equal regardless of sex," said Delegate Kelly Convirs-Fowler, D-Virginia Beach, whose daughters, Tessa and Sophie, joined her on the House floor.
All House Democrats and four House Republicans, including Delegate Glenn Davis, R-Virginia Beach, also approved it. In the Senate, Virginia Beach Republican Sens. Jen Kiggans and Bill DeSteph were among 12 Republicans who voted for it.
Davis and Kiggans said their vote was meant to show women they support equality under the law, even if they believe the deadline has passed and the issue will eventually be heard in the courts.
"I don't want any young lady today to see a vote and think that we don't believe that they are equal to men," Davis said. "The government does not have the ability to bestow equality. Women are equal to men because they are equal, not because the government said so."
Sen. Mamie Locke, D-Hampton, dismissed the argument of the expired deadline.
"There is no time limit on equal rights," she said. "This is simply the right thing to do."
Proponents say the ERA would offer firm protections against discrimination for women, especially in the fields of employment, education and pay. A December 2019 Christopher Newport University Wason Center poll found 80% of respondents supported it.
Opponents, including the Family Foundation and the Virginia Society for Human Life, say the ERA undermines women's rights and opens the door for taxpayer-funded abortions. They say women are already protected from discrimination under the law, and ratifying the ERA would eliminate the separation of genders in bathrooms, sports teams and college dorms.
The ERA has traditionally passed in the Virginia Senate, sometimes even with bipartisan support.
But the hangup has come year after year in the House, where, often in an untelevised subcommittee meeting, the resolution died on a party-line vote.
The issue came to a head last year, when Democrats tried to force a vote through an obscure rules change that ended in a tie.
It's unclear what happens next in the fight to make the ERA the 28th Amendment.
The Senate and House clerks are required to send certified copies of the approved resolution to the president, vice president, U.S. House speaker, members of the Virginia congressional delegation and the U.S. archivist.
Federal law says once the archivist receives "official notice" that an amendment has been adopted, he must publish the amendment and specify which states have ratified it. Then it becomes a part of the Constitution.
On Jan. 8, an assistant attorney general in the U.S. Department of Justice issued an opinion saying Congress has a constitutional obligation to abide by the deadline and can't change it. But Michelle Kallen, the state's deputy solicitor general, said Tuesday the executive branch has no say in constitutional amendments, and the opinion isn't binding.
A resolution to nullify the deadline is being considered by Congress, where it likely will win support from the Democratic majority in the House but may be a harder sell in the Republican-controlled Senate.
Opponents also point to the four states _ Nebraska, Tennessee, Idaho and Kentucky _ who voted to rescind their ratification. A fifth state, South Dakota, said its ratification would lapse after the original 1979 deadline.
But experts say a state can reverse a previous refusal to ratify, but it can't rescind a ratification because the Constitution has no provision for doing so.
Three states, including South Dakota, filed a lawsuit in December to block the ERA from passing.
Meanwhile, the pro-ERA group Equal Means Equal filed its own lawsuit Jan. 7 in Boston arguing the ratification deadline is unconstitutional. The lawsuit calls on the courts to compel the archivist to officially record the ERA as the 28th Amendment and say no to attempts by states to rescind their ratification.
A spokeswoman for Attorney General Mark Herring said he was ready to "take any action" legally to help the ERA become part of the constitution.