Equal Rights Amendment: Supporters push for publication despite lingering legal questions

Believing that the ERA has met all necessary constitutional requirements, supporters are demanding that American archivist David Ferriero, who is due to retire in April, publish the ERA as 28th Amendment to the Constitution as part of his ministerial duties. Ferriero has not publicly indicated that he plans to release the amendment, and the National Archives referred CNN to the Justice Department for comment.

Two years ago on Thursday, Virginia ratified the ERA, becoming the 38th state to do so and, in the eyes of supporters, landing the much-needed credential for the addition to the US Constitution nearly half a century later. that the amendment began to make its way through state legislatures. But the necessary threshold was not met by the 1982 deadline, and five of the states canceled their support for ERA, opening up significant legal questions.

Proponents say the law is needed to entrench women’s equal rights in the Constitution, though opponents argue that many such protections are already in place across the country and that the publication of the ERA now would ignore previous federal court rulings.

“The fact that we have said, because it is true, that ERA has met all the requirements, that is the law. Certification is a symbol but we deserve this symbol,” said Ellie Smeal on Thursday, who runs The Feminist Majority. virtual press call organized by the ERA Coalition, its partners and allies in Congress. “We think he should certify and publish now. Let the opposition appeal, and yes it will go to court, but fundamentally we know this thing is over.”

On Thursday, the ERA Coalition, National Organization for Women, Women’s March and other groups rallied at the White House and then marched to the Justice Department.

They planned to deliver petitions calling on Attorney General Merrick Garland to rescind a Justice Department’s Office of Legal Counsel (OLC) notice, issued under the Trump administration in 2020, that said the delay in ratifying ERA had expired and that the archivist cannot certify him, arguing that the memo is “imperfect” and “erroneous”.

When the memo was released in 2020, the National Archives and Records Administration said at the time that it “would abide by the advice of the OLC unless otherwise directed by a final court order.”

The OLC issued a new memo Wednesday evening, saying its 2020 memo is “not an impediment to Congress’s ability to act with respect to ERA ratification or consideration.” questions concerning the constitutional status of ERA”.

According to Columbia Law School’s The ERA Project, the new OLC memo does not withdraw its 2020 memo nor does it ask the archivist to release the ERA, but suggests the issue is well before the federal courts and Congress.

Linda Coberly, chair of the ERA coalition’s legal working group, said on Thursday that “the archivist could go ahead and certify today and we need to keep pushing to go ahead and do that.” .

“Whether the archivist certifies or not, that does not preclude us from arguing and asserting in court … that the ERA is valid and in the Constitution today,” she said during the Thursday press call.

Douglas Johnson, senior policy adviser for National Right to Life, which opposes the ERA, told CNN: ‘It’s amazing to see members of Congress and lawyers openly urging defiance of the rule of law.’ pushing the archivist to publish the ERA.

He told CNN the memo means “the official position of the federal executive branch remains unchanged: ERA is dead.”

“For the Justice Department to take note that Congress is an equal branch and is free to disagree, or that the courts will have the final say, just point to the obvious,” he added.

Democrats keep up the pressure

Democratic Representatives Jackie Speier of California and Carolyn Maloney of New York, two longtime supporters of the ERA, introduced a House resolution on Thursday affirming the validity of the ERA. The two lawmakers also insisted that the archivist be able to publish the ERA.
“Until the ERA is officially ratified, we cannot get rid of the gender wage gap, pregnancy-related discrimination and persistent and insidious violations of survivors’ rights, to name a few. -some of the gross injustices women face on a daily basis,” Speier said in a statement.

President Joe Biden on Thursday reiterated his support for the ERA and called on Congress to “act immediately” to pass the House resolution “to recognize the ratification of the ERA.”

“I have been a strong supporter of ERA since I first ran for the Senate at the age of 29. We must recognize the clear will of the American people and enshrine the principle of gender equality forever. in the Constitution,” he said. said in a statement. “It is high time we put an end to all doubt.”
Last March, the House passed a joint resolution that would remove a deadline for states to ratify the ERA, but it faces a tougher path to pass in a 50-50 Senate.
Democratic Sen. Ben Cardin of Maryland announced Thursday that all of his fellow Democratic senators had signed on as co-sponsors of the Senate resolution to remove the delay. Republican Sens Lisa Murkowski of Alaska and Susan Collins of Maine are the only two Republicans to co-sponsor the resolution. The resolution still needs 60 votes to overcome any potential Senate obstruction.

National Right to Life argued that the resolutions are unconstitutional and that Congress cannot retroactively change a deadline imposed decades after it expired.

A long legal battle

As stated in the Constitution, constitutional amendments become valid once they are ratified by three quarters of the states – that is 38 states. In 1972, Congress passed the ERA, which stated that “equal rights under law shall not be denied or restricted by the United States or any State on the basis of sex.”

Congress included a seven-year deadline for states to ratify the ERA, later extending the deadline until 1982. But by then, only 35 states had signed the ERA — and five of those states rescinded their support for ERA within this timeframe. .

In recent years, Virginia, Illinois and Nevada have endorsed the ERA, with Virginia claiming to be the 38th – and therefore decisive – state to ratify the amendment in 2020.
Opponents of the ERA claim that the ratifications of these three states are invalid and also point to the nullifications of the five states as part of the reason the ERA is not ratified. Proponents claim the deadline had not expired because it was not included in the body of the ERA and argue that states cannot undo amendment ratifications.
In 2020, Virginia, Illinois, and Nevada sued the American Archivist for “fulfilling its legal obligation” to publish and certify the ERA.
A federal district judge dismissed the case, saying the plaintiffs “did not have standing to sue”, and wrote in his opinion that the deadline to ratify the ERA “has long expired”.

The court, however, did not weigh in on whether states can validly rescind ratifications or whether Congress’ extension of the ERA ratification deadline was constitutional.

Virginia, led by then-Democratic Attorney General Mark Herring, appealed the court’s decision and the case is pending in the DC circuit. It remains to be seen whether the Commonwealth, under new Republican Governor Glenn Youngkin, will remain a plaintiff in the case.

A similar case in Massachusetts filed by the group Equal Means Equal was dismissed by a lower court and an appeals court.

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