Virginia Delegates, Tell Me Where You Stand on the ERA. Hmmm?

Dear Virginia,

I don’t know if all the members of the General Assembly believe everything they vote for and against on social policy and civil rights. I can’t. Often enough, they don’t get to vote on these issues to show us what they believe.

Take Delegate Cole for example, and the low-down, dirty story. We can be certain of his stance, but not his reasons. He refused to docket the ERA in the House P&E Committee, so that pretty well means one, maybe two things.

  • he’s against it
  • maybe he was also protecting other members from having to state their positions with votes
    • to be fair, past experience has shown most of the 2015 members of the P&E to be against ratification, so he could have just been saving time on the docket in our eye-blink short legislative session.

Reasons matter however. Reasons are policy. So why is Del. Cole so cool on the full civil and legal personhood of women?

We know his colleague on the P&E, Del. Steve Martin, publicly refers to pregnant women as “hosts,” so he’s willing to forego the idea that women are people at all once they’re pregnant. Sperm really is magical stuff. Combine just one of them with a female ovum, and *bibbity-bobbity-boo* you’re no longer a human with qualities like empathy or free will. After all, this comment is one he made aboutcontraception, not abortion.

If you wrote to Cole during our little campaign this winter, you know one answer. He thinks it would be illegal for the state to act to ratify. He thinks the amendment must resubmitted in Congress, and ratification to begin again from the start. He sent an email to that effect to me, and the whole House P&E (see below).

But, if you challenge that policy with additional, and very strong facts, he backs up very quickly to another reason/policy: Religion.

Eileen Davis of Women Matter pointed out to Cole in conversation that: His constitutional argument is incorrect. Both he and the 1992 Virginia Attorney Generall he cites as authority think that “moot” before the court means moot, period. This is not the case. NOW v. Idaho clearly established that given it was Congress attached the deadline to the amendment (it was not part of the amendment’s own language), then Congress can lift that deadline any time it takes a notion. So, while the AG thought any action to ratify would be a “nullity” (legally, an action that never happened), that’s just an interpretation, and one challenged publicly by equal or stronger authority. (More on this below.)

Also, they don’t have to believe it. They just have to know which position will work to keep their supporters and constituents with with them. For instance, none of our politicians has to believe that the ERA is or could be a stealth legalization of all abortion on demand. All they have to know is that people with money (the Eagle Forum, the Family Foundation) believe it–bunk though the notion may be. Then, all they need a is decent deflection argument that sounds smartish, and they’re good as re-elected.

You see, it’s been explained to Cole that his reading of the law is flatly wrong. I supplied to the WEC this article from William and Mary Journal of Women and the Law, which clearly explains the decision in NOW v. Idaho and similar cases. States can ratify and prompt Congress to lift the deadline, or Congress and lift the deadline and let states finish ratification. Davis of Women Matter found and sent to Cole and the P&E Committee the Congressional Research Service report on the ERA and deadlines, which agrees with both the William and Mary paper, and Justice Ruth Bader Ginsburg. Argument by authority has a lot to do with the status of your authority. You see, the when the Virginia Attorney General in 1992 said that Virginia could not ratify, that was just his feeling on the matter and not a statement with any legal weight or force. If it legal force, all these very intelligent and energetic feminists would be taking another approach. Equally, that the GA has failed/refused to ratify in the past is meaningless in any present effort, other than to say it’s an uphill climb and Cole is unwilling to flatten any of that slope.

When Davis challenged him on these points, he flustered and backed up to muttering something about religious reasons. Let’s take a moment to look at what’s called Natural Law Doctrine. First, it’s not at all what religious conservatives think it is. It’s not God’s law, or common law, but the foundation of the rights we claimed in our Revolution. Unless you are Catholic (or a contemporary conservative), in which case it does refer to a kind of universal divine moral code as described by Thomas Aquinas (who was trying to rectify Catholic theology with the rational philosophies of the Greeks), from whom the latter Enlightenment idea of innately given and inalienable rights evolved, for which we spilled a very great deal of blood but have not yet extended to American women. Still, choosing between these two versions of natural law is a choice, and one based in your own personal weighting of religious and civil social values. In other words, not at all a final authority universally recognized by our nation’s laws or citizens — and more, it doesn’t say much at all about women’s constitutional equality. Indeed, “natural law” is often code for a religious doctrine of the subservience of women and a greater right to life for a fetus than for a woman. To which we have only one thing to say: The Establishment Clause. The 1st Amendment means that I don’t have to live according another’s religious code of conduct. The Founders were deeply familiar with the meaning/s of natural law, so they made that pointed point very clear indeed.

Some will wave the 14th Amendment at us. Of course if you read the text of that amendment, you see that it goes to lengths to emphasize the maleness of those who enjoy its protection. Exclusion of women was archly deliberate. Feminists of the time argued for women’s inclusion and were soundly rebuffed. See the text in Section 2, specifically. It’s the one thing Justices Scalia and Ginsberg agree on.

Are these educated men, and some women, really willing to walk about with these completely wrong ideas in their heads and use them to govern? It would seem so. And that, we know, make no sense. So why would they do it? Either they believe this things, which makes their qualifications questionable. Or, they hold these positions for politically strategic reasons, which makes them deeply cynical characters who are clearly willing to disadvantage more than half the US population for political advantage.

But, we don’t know which bad reason it could be because Del. Cole won’t let them tell us to our faces that we are, and should remain second class citizens with very alienable rights. We are left to hypothesize, and with my full Constitutional equality on the line, I am not inclined to be generous in my imagination. It’s been nearly 100 years, this ratification work. Why should I be generous? At this point, I think the burden is on them to show that and how far our legislators support women.

Most of our delegates don’t state a position on the ERA on their websites, which means either they are against our full incorporation as citizens, or they simply can’t be bothered to care enough to mention the issue. Again, I’m guessing, but I have no other option.

The only logical conclusion is that all the delegates who never had a chance to vote on SJ 216 to Ratify the Equal Right Amendment in 2015, or who can’t be bothered to mention it, are against women’s equality by default. It’s smart for us to assume that. It means we try to put pressure everywhere and see who comes out FOR us, clearly, proudly. Cole has a woman friendly challenger this fall, who’s a woman, and very clearly a supporter of Equal Rights for Women. Kandy Hilliard, VA NOW’s members, y’all shake hands and say hi.

This fall, all of our senators and delegates are up for re-election. We can’t run a new candidate against every conservative in that in that time, and many districts simply aren’t ready to consider an alternative.

But we can insist that they state their position on the issue so the women and friends of women will know, clearly, where their representatives stand. Then we can continue to educate voters until that stand is either a benefit or a liability to the candidate.

So, in emails to our General Assembly members, and letters to the editor in our local papers, let’s make it clear that silence on the matter of women’s full civil equality will no longer be a safe political strategy. If secrecy and political passive aggression are your tools for staying in power, you don’t deserve that power!! Make them tell you who they are to you, to your face. Say it! Say YES ERA!!! #VAYesERA

We will assume that silence and passivity mean politically the same thing as their effect practically: opposition to women’s civil and legal equality to men. That is opposition to:

  • Constitutionally guaranteed, inalienable civil rights as individuals;
  • Full equality in employment, employment benefits, and salary, Equal Pay;
  • Powerful support for Title IX, and stronger mechanisms for addressing campus rape culture;
  • Equal coverage in health care without extra costs for “female complaints” like pregnancy and breast cancer screening;
  • Strict scrutiny of the accused in sex discrimination cases, which means that employers, schools, states, the police, and the federal government would do well to avoid such discrimination in the first place.

These conditions mean fewer women and children in poverty, fewer elderly women in poverty, better educational outcomes for everyone and their kids, and many studies show a stabilization in family life with fewer divorces and less domestic violence and abuse. Why? Less insecurity in general. The ERA is one of the most pro-family, long-term economic stability laws ever proposed.

Here’s the deal. The rights enjoyed by women now are based in a collection of legal loose change. Four Equal Pay acts that have no real enforcement. The Civil Rights Act of 1964, which conservatives have already begun to weaken now they are in power. Title IX of that act, which was a huge gain for women, now needs new strength in light of various social changes (increased incidence of rape on campus, for example). Title VII of that act forbids sexual harassment in the work place. (Remember all that flap in the 1980s about of sexual harassment? That was about getting law to even be enforced. Not new law, just enforcement of a 20-something year old law.) And it’s the 1974  Equal Credit Opportunity Act that allows women to own their own money, open bank accounts and lines of credit. Again, just a regular law that can be changed or repealed. In all these cases, it’s on the individual woman to sue — because her rights are of limited standing. The Affordable Care Act assures women, for the first time, fairness in premium charges for health insurance, and free preventative screening, etc. But, it was the health care lobby that supported the Eagle Forum and Phyllis Schlafley back in the day, and they’re not delighted about women’s lower premiums now, believe you me.

All these rights are alienable (can be taken from you), and many are being challenged now. An Equal Rights Amendment puts an end to all that legal and civil insecurity. Forever.

96% of Americans believe that  men and women are equal.

72% believe that equality is already guaranteed by the Constitution.

They are wrong. But …

Lastly, in the Good News Department, we expect some movement on the congressional deadline on ERA ratification in the near future. Stay tuned!!

(sources under the cut)



Sources:

 

Delegate Cole, email dated Jan 28, 2015, to Me and the members of the P&E,

from: Mark Cole<DelMCole@house.virginia.gov>
to: Simone Roberts <my private email>,Dave Albo <DelDAlbo@house.virginia.gov>,

“Bob Brink” <DelRBrink@house.virginia.gov>,

Hyland F Fowler <DelBFowler@house.virginia.gov>,

Michael T Futrell <DelMFutrell@house.virginia.gov>,

“Algie Howell” <DelAHowell@house.virginia.gov>,

Tim Hugo <DelTHugo@house.virginia.gov>,

Riley Ingram <DelRIngram@house.virginia.gov>,

Chris Jones <DelCJones@house.virginia.gov>,

K Robert Krupicka <DelRKrupicka@house.virginia.gov>,

Steve Landes <DelSLandes@house.virginia.gov>,

Jackson H Miller <DelJMiller@house.virginia.gov>,

J Randall Minchew <DelRMinchew@house.virginia.gov>,

Israel O’Quinn <DelIOQuinn@house.virginia.gov>,

John O’Bannon <DelJOBannon@house.virginia.gov>,

David I Ramadan <DelDRamadan@house.virginia.gov>,

Margaret Ransone <DelMRansone@house.virginia.gov>,

Sam Rasoul <DelSRasoul@house.virginia.gov>,

L Nick Rush <DelNRush@house.virginia.gov>,

Mark Sickles <DelMSickles@house.virginia.gov>,

Joseph R Yost <DelJYost@house.virginia.gov>

date: Wed, Jan 28, 2015 at 3:15 PM
subject: RE: Bring HJ495 to the Floor for a Vote

 

Thank you for contacting me regarding the Equal Rights Amendment to the US Constitution.  While I certainly support equal rights for all, the ratification period for the current ERA expired in 1982 and the proposed amendment can no longer be lawfully considered by the Virginia General Assembly.

I know there are cases where amendments were ratified long after they were submitted to the states for ratification, however, the ERA is the only proposed amendment that Congress set a deadline for ratification.  The original deadline was 1979 which was extended by Congress to 1982.  When the second deadline passed, Congress declined to extend it again, thereby killing the amendment.

The passing of the deadline has been recognized by the US Supreme Court.  On October 4, 1982, in NOW v. Idaho, 459 U.S. 809 (1982), the U.S. Supreme Court declared the matter moot on the grounds that the ERA had expired.

Additionally, on February 3, 1994, the Virginia Attorney General issued a formal opinion stating as follows: “Because the Equal Rights Amendment was not ratified within the original or the extended time limit established by Congress for its ratification, it is no longer before the states for ratification, and any action by the General Assembly to ratify it now would be a nullity”.

I would like to note that the Virginia General Assembly has declined to ratify the ERA on the grounds that it has expired numerous times in recent years, including the 2014 session when the House P & E Elections subcommittee tabled Senate Joint Resolution 78 and the year before when similar measures were defeated by the House Rules Committee.

During last year’s Subcommittee hearing, we received testimony concerning a novel legal theory, called the “Three-State Theory”, suggesting that three more states could validly ratify the now null and void 1972 ERA and that then Congress could by fiat revive the proposed amendment.  After consulting with council [sic], we could not find any of this theory sustainable as a matter of law. When it comes to amending the greatest source of secular law in the history of the World, our Subcommittee felt it had to demand legal precision.  Additionally, this theory ignores the fact that five states that had ratified ERA later rescinded their ratification.

The Subcommittee was urged to set aside legal analysis and adherence to law and “just do what’s right”, however we do not have the lawful authority to do so.

In order for the General Assembly to be able to consider the ERA, the US Congress needs to resubmit the amendment to the states for ratification.  I recommend you contact your congressional representatives and encourage them to resubmit the amendment to the states.

Again, thank you for contacting me.

Mark L. Cole

Delegate, 88th District

Spotsylvania, Stafford, Fredericksburg, and Fauquier

Eileen Davis, Email dated FEb. 24, 2015.

The anti ERA folks are dusting off the ineffective Equal Pay act of 1964 as reason that a constitutional ERA is “not needed” A limited law, (as evidenced by the 40 years well documented pay disparity), it remains a “nail without  a hammer” like all the other incremental laws regarding women’s equality. The equal pay actually affirms the need for an equal rights amendment b/c it shows how much a constitutional amendment is needed to provide constitutional support and render them enforceable. In addition the equal pay act was never sold as a fix, but rather a first step:

in 1963  Pres.Kennedy called the legislation a “first step” and stressed that “much remains to be done to achieve full equality of economic opportunity…” Kennedy said, “[O]ur journey is not complete until our wives, our mothers and daughters can earn a living equal to their efforts.”

2015 we’re still at it…

 

Women Matter, Press Release, Feb. 20, 2015.

Del. Cole denies motion to docket Women’s Equality bill SJ 216 and spurns democratic duty

Feb. 20 Richmond, VA – Delegate Johnny S. Joannou made a motion in Friday’s Privileges and Election Committee to docket SJ 216. The motion was seconded by Delegate Sam Rasoul. Dozens of ERA supporters who had lined the hallway with constitutions in their hands hoped SJ 216 would finally be heard.

The Chair of the committee Delegate Mark Cole refused to entertain the motion and continues to refuse to docket SJ 216.

Freeda Cathcart, Legislative Chair of the GFWC Va. Blue Ridge Region, said, “Women are getting the message that Delegate Cole doesn’t care about them or our democracy.”

Candy Graham co-founder, Women-Matter.org said, “Mark Cole is a one-man roadblock to democracy.”

Eileen Davis is asking Delegate Cole and Speaker Howell “to give women the dignity of debate” by allowing SJ 216 a hearing in the House during the 2015 General Assembly session which ends on February 28.

Senate Joint Resolution 216 that passed out of the Senate with bi-partisan support last week. Seven of the Virginia Senators who voted for the bill are lawyers. Two of the Virginia Senators are women and lawyers, one a Republican and one a Democrat.

Last year Delegate Cole assigned the ERA bill that passed out of the Senate to a House sub-committee. Supporters for women’s equality wonder why Cole is refusing to docket the bill this year.

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