Virginia, Illinois and Nevada had sued the archivist of the United States last year to “carry out his statutory duty” of publishing and certifying the ERA as the 28th Amendment to the Constitution. The ERA stands as a century-long dream for many women and activists as it would ban discrimination on the basis of sex and guarantee equality for women under the Constitution.
In their complaint, the three states’ Democratic attorneys general argued that Congress’ imposed deadline to ratify the ERA has not lapsed, because the time frame is not included in the amendment’s body text. They also argued that the Constitution doesn’t give Congress the power to dictate when a state ratifies an amendment and that a state’s ratification is “a one-time event.”
Under the Constitution, constitutional amendments are valid once ratified by three-fourths of the states — or 38 states. Congress in 1972 passed the Equal Rights Amendment that stated “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
In his opinion Friday, Judge Rudolph Contreras in Washington, DC, wrote that a “ratification deadline in a proposing resolution’s introduction is just as effective as one in the text of a proposed amendment.”
“Plaintiffs’ ratifications came after both the original and extended deadlines that Congress attached to the ERA, so the Archivist is not bound to record them as valid,” he concluded.
The court did not weigh in on whether states can validly rescind ratifications nor whether Congress’s extension of the ERA’s ratification deadline was constitutional.
Five states — Alabama, Louisiana, Nebraska, South Dakota, and Tennessee — had also intervened in the case as defendants. Nebraska, South Dakota, and Tennessee all voted to rescind their ratifications of the ERA between 1973 and 1979.
Virginia Attorney General Mark Herring said Friday that he’s “not giving up this fight” and “will consider any and all options moving forward, including an appeal.”
He added that he welcomes any support from the Biden administration and Congress “in ensuring that this amendment is recognized as part of the Constitution.”
“Yesterday’s ruling is not really a setback for sex equality or the ERA, rather it renews our focus on the bill introduced by Rep. Jackie Speier (with 203 co-sponsors from both political parties) that would declare the ERA fully ratified whenever three-quarters of the states have voted to do so,” Franke continued.
Anti-abortion groups strongly oppose the ERA because they see it as a way to expand access to abortion, saying the amendment could be interpreted to nullify federal and state restrictions.
“Today, a federal judge appointed by President Obama ignored the political pressures and unflinchingly enforced the Constitution,” Johnson said. “The upcoming votes in Congress are another chapter in the political-pressure campaign directed at the courts. The Constitution does not empower Congress to time travel to 1972 to resuscitate a long-dead constitutional amendment.”
Been horsing around all my life