Could Georgia Be the 38th State to Ratify the ERA?

Women on both sides of the aisle in the Georgia state senate are uniting behind a push for the Equal Rights Amendment (ERA).

[Photo: A protestor holds a large, green sign that reads
Emory Law Professor Deborah Dinner said “we need the ERA to protect women’s rights because it would provide explicit basis in the text of the Constitution for the recognition of women’s equality.” She clarified that these rights currently only exist in state and federal laws, and under a broad interpretation of the equal protection clause of the 14th Amendment. Elijah Nouvelage / Getty Images

Just one more state needs to approve the Equal Rights Amendment (ERA) in order to ratify it—and it could come in an unlikely place.

A bipartisan group of women in Georgia’s state senate are mobilizing around a resolution calling on the state to ratify the ERA, which would amend the U.S. Constitution to guarantee equal rights regardless of sex. Their push comes as a similar measure died in the Virginia House of Delegates last week.

If it passes, Georgia would become the 38th state to ratify the ERA, pushing the amendment over the three-fourths requirement to become part of the U.S. Constitution. “With 38 states ratifying, the path to making full equality for women under the Constitution will be significantly clearer. Georgia should lead the way,” state Sen. Gloria Butler (D-Stone Mountain) said during a press conference in support of the measure at the end of January. Butler is one of the co-sponsors of the measure.

The momentum behind Georgia’s amendment comes on the heels of a slew of newly elected officials taking office and a tumultuous first week of the 2019 Georgia state legislative session. By its third day, women in the state senate collectively spoke out about the new sexual harassment policy that discourages victims from coming forward and the lack of women in any leadership positions.

After former state Sen. David Shafer (R-Duluth) was accused of sexual harassment, the senate came out with new rules for handling sexual harassment claims, including strict timelines for reporting and clear penalties “if a complaint is deemed frivolous.”

Freshman state Sen. Zahra Karinshak (D-Lawrenceville) spoke out against the new rules, including the two-year limit on reporting. She was one of several state senators who condemned the new rules and the leadership changes from the senate floor.

“If [two years is] not enough time for someone to recover from an election, think about if you were sexually harassed. It’s one of the most traumatic events of your life. And you’re supposed to bring that to a stranger or a supervisor or a senator or someone in this body,” Karinshak told her colleagues.

The women of the Georgia Senate also pushed back against their underrepresentation on the committees that handle most bills, as well as the removal of one of the chamber’s few women from a key position of power.

State Sen. Renee Unterman (R-Buford), who had chaired the influential health and human services committee for the past several years, was replaced this year by state Sen. Ben Watson (R-Savannah). Some political commentators view her ouster as a political move, but that doesn’t change the larger reality that women legislators have largely been left out of the committee hearing process.

In the midst of all this, two identical resolutions were introduced calling for the ratification of the ERA. Co-sponsors for these resolutions include 24 of the 56-member state senate; nearly all of the women in the senate and 11 men, five of them Republicans.

State Sen. Jen Jordan (D-Atlanta), in an interview for Rewire.News, suggested that a lack of trust of women was the common “thread among all the stuff that’s happened so far” in the state senate.

“We’ve had the sexual harassment rules that don’t trust women to tell the truth, don’t trust victims. We’ve had the committee assignments and the demotion of this chair [Sen. Unterman] that really send the message that they don’t trust women to be in leadership positions or to be on the committees that do the heavy lifting for this state,” Jordan said.

“And to be quite frank, the state senate right now—and I’ll say the Republican caucus—they are the embodiment of why we need the ERA,” she said.

Complicating matters is the claim that the Equal Rights Amendment could bolster the right to abortion, which is currently protected by the constitutional right to privacy. Anti-choice groups like the Georgia Baptist Mission Board circulated a letter in February to state senators sharing their concern that the ERA “will be creating a constitutional foothold for abortion.”

State Sen. Matt Brass (R-Newnan) asked that his name be removed from the resolution for this reason. “Many believe that this legislation could eventually be used to remove the protections from the unborn,” he said from the senate floor in early February. “And I don’t know if any of that’s true, but I know I’m not willing to risk any living, breathing humans life to find out.”

When asked about this later, he told Rewire.News, “When I signed on, it seemed very innocent, and of course, I believe in equal rights for everybody.”

“Quite honestly, I didn’t want my name associated with anything to do with abortion, so that was ultimately why I came off the bill,” Brass added.

One of the Republican men who did sign on, state Sen. John Albers (R-Roswell), declined to comment on what motivated his support for the ERA nor his opinion of the claims that the ERA could further enshrine abortion rights. The other Republican men who signed onto the ERA did not respond to requests for comment.

But the women who signed onto this measure have made it clear they don’t see that happening.

Jordan noted that one of the key sponsors—Unterman—has been a staunch anti-choice advocate during her 16-year tenure in the state Senate. “[Sen. Unterman] has carried the water for pro-life issues. It really is disingenuous to say that this is somehow going to increase access to abortions on demand. Period,” she told Rewire.News.

Unterman concurred, adding, “It hurts, I’ll be honest with you, because it doesn’t give you credit for what you’ve done and your abilities.”

Jordan said she believes that women will pay attention to the stance legislators take now and it may come up during the 2020 election season. “I think that if this gets killed, and the women of the state of Georgia who understand that Republican women were in favor and Democratic women were in favor—I think they are going to hold people accountable for that,” Sen. Jordan said.

Should Georgia adopt the ERA, there are still additional legal challenges it would face before being added to the Constitution.

One issue is that the enabling legislation was written with a sunset provision. The ERA originally passed by the constitutionally required two-thirds majorities in both the U.S. House and U.S. Senate in 1972. At the time, the measure was given a deadline to receive the required support from 38 state legislatures. That deadline was then extended by Congress to 1982. However, by that date, only 35 states had signed on.

Emory Law Professor Deborah Dinner told Rewire.News that the U.S. Congress could address the deadline issue—but first, one more state needs to pass it.

“Most likely Congress won’t act until the 38th state acts,” she said. “So I really think the question before Georgia is, ‘Does Georgia, does the Georgia Legislature, speaking for the people of Georgia, support the idea of equal rights for men and women?’”

Dinner was invited by state Senate Majority Leader Mike Dugan (R-Carrollton) to speak at a closed-door meeting of the Senate Republican Caucus earlier this month. Although she cannot share what was discussed, it’s a promising sign that Dugan—who has not yet signed onto the ERA—wanted the Republican Caucus to have further conversations about the measure.

As to the concerns that the ERA would affect abortion laws, Dinner suggested to Rewire.News that it was unlikely given the current makeup of the U.S. Supreme Court.

“Even though proponents of reproductive rights have made powerful arguments linking women’s equality to the abortion right, the courts have only recognized those kinds of arguments in dictum and have not switched or changed the doctrinal basis for analyzing abortion rights as a matter of privacy and liberty, not equality,” she said.

In other words, some justices have acknowledged there could be a link between women’s equality and the right to abortion informally, but it’s not an official part of the Supreme Court’s decision making history. And that’s not likely to change anytime soon.

But adoption of the ERA would likely affect other areas of law surrounding women’s rights, in a way that’s more permanent than, for instance, the rights to equal wages protected by laws like the Lilly Ledbetter Fair Pay Act of 2009.

“We need the ERA to protect women’s rights because it would provide explicit basis in the text of the Constitution for the recognition of women’s equality,” Dinner said, clarifying that these rights currently only exist in state and federal laws, and under a broad interpretation of the equal protection clause of the 14th Amendment.

“We have what’s called a ‘de-facto ERA’ that’s guaranteed by legislation and guaranteed by the current interpretation of the equal protection clause [of the 14th Amendment],” she said. “But given a very conservative Supreme Court, and increasingly more conservative lower federal courts, there’s a chance—and I would say not a chance, a serious threat—that there will be backsliding in those rights.”

During a bipartisan press conference in support of Georgia adopting the ERA, Butler, one of the co-sponsors of the measure, suggested that the debate has gone on for too long. “Women have been fighting for some version of this law for almost 100 years,” she said. “Do we really want to reach the 100-year anniversary of saying no? Saying no to equal rights for women?”