A group of states led by Alabama is seeking to have a Federal Court declare that the proposed Equal Rights Amendment is dead, an effort aimed at cutting off the impact of anticipated legislative action in Virginia after the new year:
Three conservative-leaning states have filed a federal lawsuit in an attempt to stop the Equal Rights Amendment from being added to the US Constitution as it nears potential ratification.
The amendment, which would ban discrimination on the basis of sex and guarantee equality for women under the Constitution, needs three-fourths of US states — 38 in total — to be ratified after it was passed by Congress in the 1970s. Virginia, whose legislature will be all-Democratic in 2020, could be the 38th state to ratify it.
Opponents have said the amendment isn’t needed and would enable the removal of abortion restrictions, and the three states behind the lawsuit announced Wednesday — Alabama, Louisiana and South Dakota — argue that the deadline for ratification expired in 1982, when only 35 states had signed off. Five states, including South Dakota, that initially ratified the ERA have since rescinded their decisions, though two other states, Nevada in 2017 and Illinois in 2018, have recently ratified the ERA.
Advocates for the amendment have argued that the 1982 deadline is not binding and that rescinding a ratification has no legal validity. But the three states in Wednesday’s lawsuit that are suing the archivist of the United States, David Ferriero, argue that he is “acting illegally” by continuing “to hold open the ratification process” and refusing to recognize some states’ rescissions of the amendment.
“The people had seven years to consider the ERA, and they rejected it. To sneak it into the Constitution through this illegal process would undermine the very basis for our constitutional order,” Alabama Attorney General Steve Marshall said in a statement.
He argued that while Alabama, Louisiana and South Dakota are “firmly committed to equality,” the ERA “would not promote true equality, but rather a far-left agenda.”
Marshall said state law versions of the ERA have been interpreted to “invalidate reasonable restrictions” on abortion or require that boys be allowed to compete in sports against girls. He argued that the amendment could threaten state-funded institutions that separate sexes, like women’s shelters, prisons and colleges.
The National Archives and Records Administration said it has requested guidance from the Justice Department’s Office of Legal Counsel.
“NARA does not intend to take any action regarding the ERA until, at a minimum, it receives the guidance it previously requested and in no event before February 15, 2020,” it said in a statement Thursday.
The ERA Coalition, a group working for ratification of the ERA, called the lawsuit “a shameful effort to keep women from gaining Constitutional equality.”“Alabama has filed this lawsuit to thwart the democratic process, and the will of the overwhelming majority of Americans to enshrine the fundamental right to sex equality in our Constitution. The Attorney General of Alabama has done a disservice to women, including the women of Alabama,” the organization said in a statement Wednesday.
The Equal Rights Amendment, which would become the 28th Amendment to the Constitution if it were ratified, was first presented to the states in 1972 after it had passed both chambers of Congress with the required two-thirds majority. At the time, the proposed Amendment, while controversial in some quarters, was widely supported in others including by many leading Republicans such as Presidents Richard Nixon and Gerald Ford. At the time it was passed, the resolution under which it had passed Congress set a deadline of seven years for the measure to be ratified by the requisite number of states, meaning that the ratification period would expire by 1979. This provision of the Congressional resolution is similar to ones that had been attached to other Constitutional Amendments that had been presented to the states in those years, such as the Twentieth Amendment, the Twenty-First Amendment, the Twenty-Second Amendment, Twenty-Third Amendment, the Twenty-Fourth Amendment, the Twenty-Fifth Amendment, and the Twenty-Sixth Amendment.
Each of these amendments was ratified roughly within a year or less after they had been submitted to the states, though, so the time period was not an issue in any of those ramifications. In some cases, the language was included in the Amendment itself and in others, it was part of the resolution that Congress sent to the states. With the E.R.A., the resolution that passed Congress in 1972 included a preamble that explains the purpose of the amendment and the text of the proposed amendment itself. Contained within the preamble was the stipulation that the proposed amendment would become “part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years of its submission by the Congress.”
Unlike the Amendments noted above, things did not go smoothly for the Equal Rights Amendment. By the time of the expiration of the seven-year period set by Congress, the measure had been ratified by 35 states, three short of the number needed for the Amendment to become part of the Consitution. The last such ratification took place in Indiana in 1977 and the Amendment hit a roadblock after that. With the time on the resolution running out, Congress passed a joint resolution that President Carter signed into law that purported to extend the ratification deadline to 1982. That resolution, though, was only passed by a simple majority rather than the two-thirds majority required by Article V of the Constitution and it was unclear at the time if the resolution was even effective. Whether it was or wasn’t turned out to be immaterial, though, since there was no further action by any state between 1978 and 1982. At that point, the Amendment passed into history, seemingly to join the list of failed Constitutional Amendments. In 2017, though, Nevada’s legislature purported to ratify the Amendment, making it the 36th state to ratify the Amendment, and then Illinois joined the list, leading supporters of the Amendment to claim that they were just one state away from ratification. That moment appears to be at hand in Virginia which, as stated, will have a Democratic legislature and Governor in 2020.
The Complaint, embedded below, makes essentially these same arguments and seeks a Court order to effectively undercut whatever may happen in Virginia after the Democrats take control in January. Specifically, the Complaint seeks to block the Archivist of the United States, the main Defendant in the case, from accepting any ratification documents from any other state, requires him to recognize the validity of the recissions of ratification from the four states that occurred prior to the 1982 deadline, and to issue a ruling stating that that the Equal Rights Amendment cannot be ratified because the time period set by Congress which expired no later than 37 years ago.
Based on the available law and most importantly the text of the Constitution, it seems clear that the Plaintiff States have a very strong case here. The Constitution gives Congress full authority to set time limits on ratification, and that’s exactly what they did here. Indeed, when it appeared that the amendment would not be ratified by the original 1979 deadline, Congress acted to give proponents three extra years to get the job done. They failed to do so. Additionally, the repeal of ratification by four states during the period before the original deadline appears to be perfectly valid as well. This would mean that Virginia would only the 34th state to ratify the Amendment (without taking into account the deadline issue, of course.)
The only argument that could complicate matters is the question of whether or not the three Plaintiffs — Alabama, South Dakota, and Louisiana — have standing to sue at a point before any purported action by a hypothetical 38th state, whether it’s Virginia or some other state. If the courts find that that they lack standing, then they’d have to refile their lawsuit. Of course, by the time that issue is argued, it’s possible that Virginia will have purported to ratify the ERA and the lack of standing argument will be moot. It’s also likely that, at that point, these Plaintiffs will be joined by other states and other parties seeking to prevent the alleged Amendment from taking legal effect. That argument will likely be tied up in the Federal Courts for several years, and will ultimately probably have to be decided by the Supreme Court.
Here’s the Complaint:
