COLUMN: ARE WOMEN EQUAL TO MEN? by John P. Flannery

ERA DEMONSTRATION IN RICHMOND IN 1979

Not everyone believes women are equal to men.

One former Virginia Governor who believed that “all men are created equal” had a different view of women; he wrote, “Were our state a pure democracy, there would still be excluded from our deliberations … women, who, to prevent depravation of morals and ambiguity of issues, should not mix promiscuously in gatherings of men.”

That seemingly unenlightened gentleman was none other than Thomas Jefferson.  But he is not alone in the history of this still young nation.

The good news is that the Virginia Senate took up the equal rights amendment (the “ERA”) to the U.S. Constitution in the current legislative session to assure equality among the sexes; the ERA says, in relevant part, 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.” 

It was passed by Congress and sent to the states in 1972.  It is amazing it has not been passed.  Luckily, the intervening span of years is no obstacle to approving it now.  By way of precedent for its belated passage, consider the “Madison amendment,” regarding the compensation of elected representatives, introduced in 1789, which languished for 203 years before garnering three-quarters of our states for its approval as a constitutional amendment.  The U.S. Supreme Court has said Congress can determine how long to allow for the ratification provided there is no such limitation in the amendment as it is written; and there is no such limitation in the ERA.  So it does still matter if Virginia becomes number 36 of the 38 states necessary to ratify the ERA.

Virginia narrowly rejected the ERA in 1980.  Former State Senator John Chichester famously abstained from voting, interposing a “conflict of interest,” saying, he was after all, “married.”

The intervening years have underscored that this amendment is needed and not surplus verbiage.  Associate Supreme Court Justice Antonin Scalia wrote in September 2010 that the U.S. Constitution does not protect against sex discrimination.  What Justice Scalia was saying is that “sex” is not a “suspect” classification like race or religion or national origin. 

Those who say we have various statutes that protect women at the state or federal level, they ignore the legal process by which any mere statute may be ignored, enforced unevenly or negligently, drastically changed or repealed entirely, and with judicial impunity.  But a constitutional provision is a fundamental and supreme law, a standard by which deprivations of rights and liberty may be measured and remedied in court if necessary.

In the current legislative session, Senator Bryce Reeves (R- 17^th SD) voted for the equal rights amendment in committee, saying, “I have a wife and daughter, I’m for it.”  But he voted against the amendment when it came to the full Senate, saying it was no longer necessary.  What persuaded him that his wife and daughter no longer needed to be considered equal?

Senator Jill Vogel (R- 27^th SD) also reportedly voted for the ERA in committee but then voted against it on the floor of the Senate.  We sincerely hope she’ll reconsider her vote and lobby for its passage in the next legislative session. 

When the amendment came to the Senate floor, Senate Majority Leader Tommy Norment (R-James City) asked to delay the vote on ratification – as if we need more time to understand this issue. 

Senator Norment explained the reason for delay, by charging that Senator Janet Howell (D-Reston) was among the bra-burning feminists who favored the ERA 40 years earlier, and the delay, he said, was because Senator Howell “still needs some more time to gather up lingerie to burn and protest on this.” 

In the end, the ERA passed the Senate in a bipartisan vote, and the Senate at least revived its reputation.  But the House of Delegates buried the ERA in Committee without a floor vote.  Now, how cowardly is that?

Senator Yvonne Miller warned the General Assembly that the failure to vote for the ERA would lead citizens to understand “that Virginia is a backwards state.”

She was right – we are - so let’s reason with our elected representatives so we can become a forward looking state and get it right the next time – with a bi-partisan vote in both chambers, and finally correct the mis-spoken statement that Jefferson made that he can no longer correct himself.