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Virginia ratifies the Equal Rights Amendment, decades after the deadline

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Both houses of Virginia's legislature voted to ratify the Equal Rights Amendment, but the ERA's future is uncertain: Its original deadline elapsed decades ago. Here, an ERA supporter reacts to a Virginia Senate committee's vote to advance the ERA amendment last week.
Both houses of Virginia's Legislature voted to ratify the Equal Rights Amendment, but the ERA's future is uncertain: Its original deadline elapsed decades ago. Here, an ERA supporter reacts to a Virginia Senate committee's vote to advance the ERA amendment last week.
Steve Helber | AP

Virginia became the pivotal 38th state to ratify the Equal Rights Amendment after its Senate and House of Delegates voted Wednesday to approve the change to the U.S. Constitution.

The ERA's provisions include a guarantee that "equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex."

"The Virginia Senate voted 28-12 and the House of Delegates 59-41 to approve the ERA," NPR's Sarah McCammon reports.

Under the U.S. Constitution, amendments become law when they're ratified by at least three-fourths of U.S. state legislatures — or 38 out of 50. However, the ERA's original deadline for ratification expired in the 1980s, putting its future on uncertain legal ground. That didn't stop backers in Virginia from welcoming a long-awaited day.

"Supporters pour out of the House gallery to celebrate with Delegates Ayala and Carroll Foy," reporter Mallory Noe-Payne said via Twitter, posting images of women hugging at the Virginia State Capitol.

The ratification vote came early in Virginia's legislative session, after voters put a record number of women in office in November. The state House now has the first female speaker in its history; women also serve as president pro tempore of the Senate and in other high-profile posts.

"The people of Virginia spoke last November, voting a record number of women into the House of Delegates and asking us to ratify the ERA," said House Majority Leader Charniele Herring. "It is inspiring to see the amendment finally be considered, voted on and passed — long-awaited recognition that women deserve."

"Today is an absolutely historic day for our commonwealth and a major milestone in the fight for equality in this nation," Attorney General Mark R. Herring said after Wednesday's vote. "Women in America deserve to have equality guaranteed in the Constitution, and Virginians should be proud that we will be the state that makes it happen."

Congress approved the ERA in 1972 and set a ratification deadline of 1979, which was later extended to 1982. Indiana became the 35th state to ratify the amendment, in 1977 — leaving it three states shy of the threshold. And there things stalled.

That changed in recent years, as advocates mounted a new push. Nevada ratified the ERA in 2017, and Illinois followed suit a year later.

There are differing legal opinions about whether the ERA has missed its chance to become the law of the land or whether Virginia's long-anticipated action is the final piece falling into place for the constitutional change.

"Some supporters argue that because the deadline is in the preamble that proposes the ERA — not the text of the amendment itself — the deadline doesn't have to be observed," NPR's Danielle Kurtzleben recently reported.

Advocates also say Congress could simply set a new deadline and refresh the expired time frame.

But the Justice Department has disagreed with those views. Its Office of Legal Counsel posted an opinion this month stating, "the ERA Resolution has expired and is no longer pending before the States."

The matter will likely be settled in court, particularly after three states — Alabama, Louisiana and South Dakota — filed a lawsuit last month seeking to block the archivist of the United States from adding the Equal Rights Amendment to the Constitution.

NPR's Sarah McCammon contributed to this report.

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