Photo of the Virginia State Capitol in 2003.
(Anderskev, CC BY 3.0, from Wikimedia Commons)
Keep an eye on what happens in Richmond during this session of the General Assembly.
The Virginia General Assembly convenes for its new session Wednesday. Democrats are feeling their oats: for the first time in a generation, they control the governorship and both chambers of the legislature. Governor Ralph Northam rode out the controversy over his college blackface photos and studiously ignored his radio interview on infanticide. The new majority in Richmond plans to pursue its agenda aggressively, and that agenda includes abortion.
Catholics in the Commonwealth can be concerned about the likely repeal of protective pro-life legislation. The Northam administration has already done what it can by executive action to blunt pro-life laws in Virginia and now, with a willing legislature, may even try to reach as far as New York State in codifying a “right” to abortion into Virginia statute.
That’s concerning, but Catholics across the country have a bigger stake in this new legislature: there is likely to be a strong push to “ratify” the defunct federal Equal Rights Amendment (ERA). That could potentially affect Catholics from sea to shining sea.
I wrote about this issue last year, when ERA was finally defeated in the Virginia lower house — after passing the Senate by the narrowest majority — on procedural motions. That was last year. This is a new moment.
Some background: ERA was proposed by Congress for state ratification in March 1972. The resolution presenting ERA to the states stipulated — like almost all 20th-century constitutional amendments — that the time limit for ERA to be ratified by the required 38 state legislatures was seven years, i.e., March 1979. ERA came out of Congress like gangbusters, and quickly garnered nearly 30 ratifications.
Then came Roe v. Wade.
The Supreme Court’s imposition of abortion on all 50 states essentially through birth caused people to think twice about the deceptively simple language of ERA: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” How would ERA affect abortion?
That’s where the answer gets murky. Advocates of abortion claimed that an unlimited abortion license was necessary for women to enjoy “equality.” Whether you call it “choice” or “reproductive justice” or the euphemism du jour, abortion proponents have always maintained that abortion is essential to “women’s rights.”
But ERA’s advocates insisted, at first, that the Amendment had nothing to do with abortion and that ERA’s opponents were mixing up apples and oranges in trying to kill “simple equality for women” by conflating it with the controversy over Roe. It is doubtful that the 92nd Congress — which proposed ERA before Roe was handed down — would have enacted a liberal federal abortion statute that would have preempted pro-life laws in 46 states. It certainly would not have enacted ERA by the lopsided majorities it did.
But when ERA’s opponents said the Amendment should be revised to contain what its proponents said – that the Amendment had nothing to do with abortion – its proponent balked. They wanted it both ways.
So, we’re back to the matter of timeliness. What matters: a Congress that in 1972 doubtfully would have enacted Roe as federal law (and not obliquely through ERA) or the views of its proponents today, who see ERA as a vehicle to lock abortion into the Constitution to prevent the “Trump Supreme Court” from dialing back the abortion liberty?
And timeliness is again at issue. When Congress began limiting the time period for ratification of constitutional amendments in the early 20th century, the stricture was challenged. The Supreme Court upheld it, noting that constitutional amendments are serious business: they require 67 of 100 Senators, 290 of 435 Congressmen, and 38 state legislatures to agree on them. In other words, there has to exist a clear and common consensus at a given moment in time. The Court held that the seven-year rule was a reasonable exercise of Congressional power to embody that necessary consensus.
Amendments before 1918 lacked that provision, and that’s where the case for ERA proponents comes in. Although ERA died in 1979, Congress tried (unconstitutionally, I would say) to put it on artificial life support by extending its deadline until 1982. Even with the extra three years, however, no additional states ratified the Amendment and, indeed, another one rescinded its approval.
But because amendments before 1918 lacked any limit on ratification, that’s where the case for ERA proponents comes in. They point to the 27th Amendment, originally proposed with the Bill of Rights in 1791 (with no time limit) but only ratified in the early 1990s, as part of the “limit Congress’ power to give itself a raise movement.” ERA proponents say that if the 27th Amendment could be approved almost 200 years later (again, there was no original time constraint) so can ERA (in which there was).
Is it just a question of whether there was a limit or not? The limit is important because presumably we live in a society of rule of law, and people can’t be asked to approve things on a given set of conditions and then have the conditions changed along the way. That’s usually called a shell game.
But it also raises the question of timeliness. What understanding of ERA controls? An ambiguous reading of its nexus to abortion? The fact that the 92nd Congress approved ERA before Roe, with practically no indication they thought they were legislating on abortion? Or the contemporary elite understanding, which appears to be that ERA is the ultimate codification of Roe into law?
Likewise, when it comes to timeliness, the question of what ERA means by “sex” is also relevant. It is very arguable that in 1972 Congress meant “sex” to be men and women, not 50 shades of gray. But what meaning of “sex” would control under ERA today: the understanding of man and woman that was commonplace in 1972 (the dreaded “gender binary”) or today’s view that “gender” is whatever one consciously thinks?
This issue is already on preview at the Supreme Court, as the same Congress that passed ERA also passed Title IX, prohibiting sex discrimination. The Supreme Court is being asked this term to determine whether Title IX meant to include “gender” or whether “gender” would be a protected category only if Congress explicitly added it. In other words, what meaning applies: the intent of the enacting Congress, or the view of elites today?
“Ratifying” ERA would be another cudgel in the effort to ensconce “gender equality” into law, indeed the Constitution, absent any public debate or discussion, simply by changing what we mean by “sex” and then saying that all the legislators and all the States that approved the Amendment 40 years ago understood that they were approving what is doubtful they could marshal 38 states to approve today.
By counting expired ratifications and refusing to allow states that changed their minds before ERA’s ratification was completed to do so means Virginia claims it is now poised to become the 38th — and decisive — state to “put ERA over the top” (and presumably ensconce “abortion rights” and a particular reading of “gender” into the Constitution).
No doubt any “ratification” by Virginia will be challenged in the courts, which could either decide that the law is the law and “seven years” means seven years, not 48 or that this is a “political” decision up to Congress (which could mean the House saying “ERA is in the Constitution” and the Senate under great pressure in an election year to go along).
The long-term implications of an ERA that potentially could be used to reinforce Roe and ensconce a particular reading of “gender” as Constitutionally protected should be of concern to Catholics. Keep an eye on what happens in Richmond.