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Politics McConnell, GOP Senate hold key to ERA sex bias ban after House revives fight

08:25  14 february  2020
08:25  14 february  2020 Source:   sfchronicle.com

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WASHINGTON — The effort to write women’s rights into the U.S. Constitution is now focused on the Senate, after a bill by San Mateo Rep. Jackie Speier to erase the deadline for ratification of the Equal Rights Amendment passed the House on Thursday.

Backers of the proposal face a far more formidable obstacle in the Senate, however, than any they encountered in the Democratic-controlled House: Senate Majority Leader Mitch McConnell.

The Kentucky Republican has the power to squelch bills in the Senate, even those that might attract some Republican backing, simply by refusing to bring them to a vote. House Speaker Nancy Pelosi said Thursday that she thinks the effort to revive the Equal Rights Amendment can attract bipartisan backing in the Senate — if McConnell will bring it to the floor.

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McConnell has not signaled what he will do, though he says he opposes the ERA legislation. That isn’t encouraging for Democrats, and they could take little solace that five Republicans voted Thursday in the House to resuscitate the ERA.

The fact that McConnell even faces such a decision speaks to the ERA’s resurgence as a cultural dividing line, nearly four decades after the effort seemed to be dead.

The House vote was 232-183 to repeal the 1982 deadline for passing the ERA, which would guarantee “equality of rights under the law” regardless of sex. Speier and other supporters argued that the move is long overdue and would help women receive equal pay and enshrine a legal protection against sex-based discrimination.

They wore purple to symbolize their solidarity with the suffragists who began fighting for the ERA nearly a century ago.

“I rise today because the women of America are done being second-class citizens,” Speier said before the vote. “We are done being paid less for our work. Done being violated with impunity. Done being discriminated against for our pregnancies.”

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The Senate version of Speier’s bill has two Republican co-sponsors, Sens. Susan Collins of Maine and Lisa Murkowski of Alaska. But Republicans hold 53 of the Senate’s 100 seats, so Democrats would have to win over at least two other Republicans to pass the measure.

McConnell has refused to bring many House-passed bills to a vote since Democrats regained control of the House last year. Pelosi said Thursday that she believes the ERA has bipartisan support. Then, she took a shot at McConnell.

“Let’s only hope that the Grim Reaper will allow the voice of American women ... to be heard on the Senate floor,” the San Francisco Democrat said, referring to McConnell by a nickname he once gave himself.

While McConnell hasn’t signaled his plans on the ERA, he recently said, “Personally, I’m not a supporter.”

Speier’s bill, HJR 79, would remove Congress’ 1982 deadline for 38 states’ ratification of the constitutional amendment. ERA approval stalled at 35 states before the deadline, three short of the three-fourths of the states needed.

Opponents of the ERA say the amendment is unnecessary because federal law already prohibits discrimination on the basis of sex. They say the effort is really an attempt to curtail state laws that restrict access to abortion.

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Rep. Doug Collins, R-Ga., said the ERA would lead to “unlimited, unfettered access to abortion. ... Don’t flower this bill up.”

Supporters say arguments against the law are baseless because women already have the right to abortions. They say complaints that the law is unnecessary ignore that women still earn less than men on average, and that sex-based cases of discrimination face a less rigorous legal test than other types of bias.

The ERA movement regained steam after more state legislatures voted to ratify, long after the 1982 deadline had passed: Nevada in 2017, Illinois the next year and Virginia last month.

But the Trump administration’s Justice Department has effectively prevented the amendment from becoming law by directing the national archivist, the librarian who records new amendments, from certifying its passage. The department argues that the Constitution doesn’t give Congress authority to revive an amendment after its deadline has lapsed.

Speier’s office said her bill would not require Trump’s signature, and would negate the archivist's dilemma.

ERA proponents face another legal hurdle: What about states that have attempted to rescind their ratification?

Five of the states that ratified the amendment before 1982 — Idaho, Kentucky, Nebraska, South Dakota and Tennessee — have sought to revoke their approval. ERA proponents argue there’s nothing in the Constitution allowing them to do so.

California has its own version of the Equal Rights Amendment, based on a 1971 state Supreme Court ruling.

The decision struck down a state law that prohibited women from being hired as bartenders. Justice Raymond Peters said such discrimination is subject to “strict scrutiny” under the California Constitution and can be justified only by a “compelling” state interest — the same standard that would be applied under the ERA. The U.S. Supreme Court has applied that standard to race discrimination but not to sex discrimination.

San Francisco Chronicle staff writer Bob Egelko contributed to this report.

Dustin Gardiner is a San Francisco Chronicle staff writer. Email: dustin.gardiner@sfchronicle.com Twitter: @dustingardiner

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