The Virginia General Assembly voted on Wednesday to ratify the Equal Rights Amendment (ERA) to the US Constitution. This makes Virginia the thirty-eighth state to ratify the amendment, satisfying the 3/4 majority of states required by Article V of the Constitution. The Amendment passed the House of Delegates by a vote of 59-41 and the Senate by a vote of 28-12.

The ERA as proposed in 1972 states:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This article shall take effect two years after the date of ratification.

Courts must now decide whether the ERA can actually be added to the Constitution. The deadline for the ratification of the ERA was in 1982, 10 years after it was initially sent to the states by Congress. Additionally, five states that previously voted to ratify the amendment have since withdrawn support.

Nebraska, Tennessee, Idaho, Kentucky and South Dakota rescinded their ratifications but Article V does not explicitly give states the ability to rescind. In the ratification of the 14th Amendment, states that had ratified it but later rescinded were still included in the official tally of ratified states.

The US Department of Justice (DOJ) released a memo last week stating that since the deadline given by Congress for ratification has passed, the ERA cannot be added to the Constitution. Additionally, the memo states that an amendment cannot be revived but that Congress must “propose the amendment anew.”

The National Archives, the agency charged with certifying amendments to the Constitution, has stated that it will follow the opinion given by the DOJ until they are directed otherwise by a final court order.