UR alumnae spearheading campaign for Virginia to ratify the Equal Rights Amendment

It began, as most social change does, with a conversation. In this case, it was a simple dialogue between mother and daughter that lingered in the mind of Kati Hornung, ‘95. 

“One of my daughters was really appalled that our governing documents didn’t include women originally, and she asked me if that had been fixed," Hornung said. "I said, ‘Eh, not really!’ and she was incensed. She’s a better feminist than I am." 

This discussion sparked Hornung's decision to look into the Equal Rights Amendment, an effort to insert women into the Constitution and guarantee them equal rights under the law. 

In Virginia, the statewide campaign to ratify the amendment -- VA ratify ERA -- has picked up momentum over the past few years. 

“I knew someone working on the ERA and I thought, ‘Really, this is what we need added to the Constitution,' and I told [my daughter] that we could check in and ask what was going on or what people were doing about it," Hornung said. "We decided to do that as a school project, and so we just jumped into it, more for her than for anybody.” 

Hornung is now the campaign manager for VA ratify ERA. In 2019, Virginia could become the 38th and final state needed to ratify the ERA for women as the 28th Amendment to the Constitution, and VA ratify ERA is expanding its efforts to spread awareness and support for the amendment’s passage. 

Two UR alumnae are involved in the campaign efforts: Hornung and state Sen. Jennifer McClellan, ‘94, who has served as a co-patron for versions of the ERA introduced in the Virginia House of Delegates. 

Introduced in 1923 and rewritten in 1943, the current version of the Equal Rights Amendment, section one states “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex." Sections two and three go on to describe the amendment’s enforcement. 

According to VAratifyERA.org, women lobbied for the ERA for almost 50 years before the Senate passed it in 1972, sending it to the states for ratification. For the amendment to be added to the Constitution, passage in 38 of the 50 states was required. In the preamble of the ERA, Congress set a seven-year deadline for ratification, which was later extended to 10 years. After time expired, however, only 35 out of the required 38 states had ratified it. 

Recently, the push for ratification has intensified as two states -- Nevada and Illinois -- have ratified the amendment within the past two years. Those involved in the VA ratify ERA campaign say they believe Virginia is in the best position to be the 38th state to ratify.

“We’re one of the first legislatures to meet in 2019," McClellan said. "We have a short session, so I think timing-wise, we can pass it in 2019. We could get this done very quickly.

“On so many issues, Virginia has been on the wrong side of history. We were late to ratify the 19th Amendment, the 15th Amendment, the 14th Amendment. We were the home of Massive Resistance and one of the largest slave markets in the country. I think we have an opportunity now to be on the leading edge of providing equality under the law for all Americans.”

VA ratify ERA has expanded its efforts to both spread awareness and gather support from legislators across the political spectrum, setting its sights on 2019.

“We are in the best position because during our 2018 session, just from counting patrons alone, we had a majority of senators and delegates sign on, so we know we have the votes," Hornung said. "No other state can say that, and we have been working diligently to have this be a nonpartisan campaign, really trying to include everybody.”

VA ratify ERA extends its message to advocates with wide-ranging ethnic backgrounds, identities and political beliefs. The campaign’s website characterizes its approach as inclusive, bipartisan and single-issue, further reinforcing the organization's quest for equality. Hornung was proud to announce that there is a Republican carrying the legislation in the state Senate and a Democrat carrying it in the House of Delegates. 

"The Equal Rights Amendment is really a nice opportunity because it is for everybody," Hornung said. "It’s a chance to have some healing. We’re including men and women, we’re including lots of different ages, we’re including Republicans and Democrats, and we’re also particularly focused on women of color because they have been excluded for far too long from the Equal Rights Amendment conversations.” 

Despite support from people with an array of backgrounds, the campaign has faced doubts about the amendment’s necessity, potential and purpose. Arguments often stem from beliefs that the deadline was firm, that women already have achieved equality or that the ERA will have unintended consequences. 

“[When people assert that the ERA is unnecessary,] I say that Supreme Court precedent says that’s not true," McClellan said in response to these claims. "The 14th Amendment has been interpreted by the Supreme Court to have a different standard of scrutiny -- intermediate scrutiny. Women are not treated under the law as strictly as those who are discriminated by race.”

Scrutiny, in reference to the 14th Amendment, deals with the extent to which the burden of proof is placed on those who created the law in question (defendants) rather than those who are challenging the law (plaintiffs). When a law deals with race-based discrimination, it is classified as having the “strict” level of scrutiny. Therefore, it is assumed that the law violated the plaintiff’s rights. The defendant then must prove otherwise.

In cases of “intermediate” scrutiny, there is a lesser burden placed upon the defendant to prove that the law was not discriminatory. For this reason, laws that allow gender discrimination are less likely to be overturned. 

Hornung said: “[Former] Justice [Antonin] Scalia has a great quote where he says: ‘The question is not whether the Constitution requires gender discrimination, because, of course, it doesn’t. But the question is, whether or not the Constitution prohibits it.' And he goes on to say, 'It doesn’t.’

"If we don’t have gender equality in the Constitution, we will lose [Supreme Court] arguments every time because we try to argue on interstate commerce or some other ridiculous, not entirely relevant clause."

However, even if Virginia were to ratify the amendment, opponents point to the 1982 deadline as a major obstacle. ERA advocates assert that the deadline is revocable. A simple act of Congress could eliminate it entirely. 

“The deadline is in the preamble," Hornung said. "It’s a bunch of 'whereas' clauses. It’s not actually in the amendment itself. It was added on as a poison pill -- by a Democrat, by the way -- and it has been changed once before. It kind of represents Congress’s complete autonomy over whatever they want to do with that. Article V [of the Constitution] says, ‘After ratification of three quarters of the states, an amendment shall be added to the Constitution.’  It doesn’t say ‘shall maybe, if there isn’t a deadline.’"

Hornung said she believed the deadline "rule" was more of a pliable invention than a mandate, and that in applying the deadline, Americans should reflect on the original intention of the Founders.

Looking forward, the 2019 session of the Virginia General Assembly will likely be in the national spotlight as the ERA and its layered implications come to the forefront. 

Hornung and McClellan have a clear goal, though: the cementation of women’s equality into our foundational document that will serve as a symbol for little girls -- much like Hornung's daughter -- to look to for inspiration. 

Contact features writer Cassie Coughlan at cassie.coughlan@richmond.edu.