The Senate Must Recognize the ERA to Protect Survivors of Gender-Based Violence

The Equal Rights Amendment could provide constitutional support to help protect survivors of gender-based violence.

The Women’s March in Manhattan on Jan. 18, 2020. (Ira L. Black / Corbis via Getty Images)

One hundred years ago, women’s rights activists introduced the Equal Rights Amendment (ERA) to guarantee equal rights for women under the U.S. Constitution. On Thursday, April 27, the Senate will vote on the ERA—the first vote on the ERA in the Senate in 40 years. Among many other benefits to the law, this vote also represents an opportunity to protect survivors of gender-based violence—which even in today’s heated political climate continues to command bipartisan concern and support.

The vote takes on particular importance since, earlier this year, the D.C. Circuit issued a decision in Virginia v. Ferriero, a case which sought to compel the national archivist to certify and publish the ERA after it was ratified by the necessary 38 states. For years, opponents of the ERA have claimed that the final states to ratify the ERA did so too late, while supporters argue that there’s no binding timetable to when the ERA can be considered. The D.C. Circuit dismissed the case on procedural grounds, meaning that—at least for the time being—congressional action would be paramount to the future of the ERA.

Nothing in the D.C. Circuit’s decision signals that Congress cannot act to remove any question of whether or not ratification of the ERA is bound by any time limit. In fact, last year, President Biden called on Congress to “act immediately to pass a resolution recognizing ratification of the ERA.”

Thankfully, Congress recognizes its power to act—as well as the importance of the ERA, which is supported on a bipartisan basis in both chambers. In February, the Senate Judiciary Committee held a hearing on the federal ERA where witnesses highlighted the ERA’s potential impact, citing issues including equal pay and workplace discrimination, but left out an important discussion of how the ERA could make an impact that should only further compel congressional action: It could provide constitutional support for efforts to help protect survivors of gender-based violence.

Currently, just over half of states have state level ERAs to prevent gender-based discrimination, leaving more than 20 states without any explicit protections for women in their constitutions. While the interpretation of state ERAs have varied in different state courts, there is clear evidence of the need of a federal ERA to safeguard gender equality nationwide. One of the clearest examples of this need manifests in how courts have treated gender-based violence, which was highlighted in the landmark Supreme Court case U.S. v. Morrison.

The Senate must immediately remove the ERA’s ratification deadline to ensure that everyone has access to the legal remedies they need and deserve.

The tragic impact of gender-based violence is inarguable: Nearly one in three women have experienced physical violence by an intimate partner. This type of violence is even more common among women of color, as more than half of multiracial and Native American women and more than four in 10 Black women have experienced physical violence by an intimate partner during their lifetimes.

In 1994, Congress passed the landmark Violence Against Women Act (VAWA) to combat gender-based violence including domestic violence, sexual assault, dating violence and stalking. When VAWA first passed, it included a provision to allow survivors of gender-based violence to sue their attackers. In 2000, this provision was struck down by the Supreme Court.

In the case of U.S. v. Morrison, Christy Brzonkala, a woman who was raped by two fellow college students, sued her attackers under this provision of VAWA. (Antonio Morrison was one of Brzonkala’s alleged rapists.)

However, the Supreme Court struck down the authority granted to the survivor in VAWA, claiming that Congress did have the power to enact the provision under the Commerce Clause or the 14th Amendment. The Supreme Court’s decision has left survivors of gender-based violence to this day without the legal tools necessary to sue their attackers for damages or other relief in federal court.

When she was a freshman in 1994, Christy Brzonkala was raped by two students on the Virginia Tech campus. Brzonkala sued the school and her attackers, alleging the attack violated the Violence Against Women Act. The Supreme Court ultimately ruled that Congress had no power to protect women from violence because crime is a matter for the states. (C-SPAN)

If a federal ERA had been in place, the Morrison decision likely would have been quite different. As Georgetown Law professor Victoria Nourse explained: “the ERA would spark Congress to enact new laws on gender violence, including redrafting the VAWA civil rights remedy, and chart a path to overturn Morrison.”

The ERA could provide Congress with the tools it needs to reexamine and restore this important provision, as it would bolster arguments in support of Congress’ constitutional authority to pass laws to prohibit sex discrimination, including gender-based violence. Unlike the 14th Amendment, the ERA contains a direct reference to “sex” and “equality,” which would make it much harder for the Supreme Court—especially one composed of majority originalist judges—to strike down a provision to protect women from gender-based violence.

It has been 100 years since the federal ERA was first introduced, and we cannot afford to wait another century to see the ERA be included in the U.S. Constitution. The Senate must immediately remove the ERA’s ratification deadline to ensure that everyone has access to the legal remedies they need and deserve.

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Becca Damante is a senior policy analyst for the Women’s Initiative at the Center for American Progress.