The ERA Lives On! Three AG’s File Notice to Appeal District Court Ruling

May 4, 2021 

The Attorneys General of Nevada, Illinois and Virginia filed a notice on Monday, May 3 that they plan to appeal federal District Court Judge Rudolph Contreras’ ruling from March 2021. This ruling stated that because of the seven-year deadline, later extended to ten years, in the preface of the 1972 ERA resolution the ERA was no longer pending. The judge wrote, a ratification deadline in the introduction, “is just as effective as one in the text of the proposed amendment.” 

New Life for the ERA — The notice to appeal breathes new life into the Equal Rights Amendment, a proposed constitutional provision that would prohibit discrimination based on sex. The ERA was written by famed suffragists Alice Paul and Crystal Eastman nearly 100 years ago. The required 38 states have ratified the ERA, though the last three as represented by the attorneys general, were ratified in recent years—long after the 1982 deadline.  

The AG’s lawsuit, filed in January 2020, had demanded that the Archivist of the United States whose duty it is to certify and publish a ratified amendment as becoming part of the U.S. Constitution should proceed with just that for the ERA. They then contended that failure do so that “harms the Plaintiff states by creating widespread confusion regarding the effect of their ratifications” and the “Archivist’s delay continues to thwart will of the people, as expressed by the lawful and valid adoption of the Equal Rights Amendment.” 

But Judge Contreras countered by concluding that the Archivist’s publication and certification of an amendment “are formalities with no legal effect”, the archivist’s failure to do that doesn’t cause harm and there’s no standing to sue.  In other words, because the ERA is no longer pending due to the expiration of the deadline, any effort by the Archivist to certify and publish the Equal Rights Amendment would have no real meaning. 

ERA Bill Now in Senate — Legislation (H.J. Res. 17), sponsored by California Rep. Jackie Speier (D), to remove the deadline has passed the U.S. House of Representatives and was read twice and placed on the Senate calendar, suggesting that the Senate might actually vote on the ERA. However, the Republican leadership, claiming that a stealthy reason for passing the ERA is constitutional protection for abortion rights, is holding fast in opposition. The Senate is split 50-50 and although Vice President Kamala Harris would cast a vote to break a tie, the Republicans continue to strangle-hold most legislation with the threat of a filibuster which requires 60 votes to move forward. 

Sens. Joe Manchin III (D-WV) and Kyrsten Sinema (D-AZ), both from conservative states, have vowed to protect the filibuster, a Jim Crow era relic applied by southerners to oppress Blacks and prevent passage of civil rights legislation in the mid-twentieth century. Therefore, much of the progressive legislation passed by the House may die in the Senate in this 117^th Congress. 

Republican’s Fallacious Argument – A second and more twisted reason that Republicans offer in opposing the ERA is that the Equal Rights Amendment would guarantee transgender girls and women a right to participate in student athletics programs.  An ongoing campaign to inflame the Republican base is the introduction and passage in some states legislation that would prohibit transgender girls and young women in student athletic programs, prohibit them from gender-affirming medical care and punish any doctors that provide that care.  Women’s equal education advocates note that transgender girls’ and women’s participation in sports is a non-problem and that they have a right to participate in school athletic programs. 

There is ample legal protection that counters the Republican claim: Title IX of the Education Amendments of 1972 prohibit sex-based discrimination against students attending schools that receive federal funds. And the 2020 ruling of a conservative-majority U.S. Supreme Court in Bostock v. Clayton County that Title VII of the 1964 Civil Rights Act found that LGBTQ persons are protected under its prohibition against sex-based discrimination in employment. The Court’s ruling is assumed to provide broader support for equal treatment of LGBTQIA+ persons.  

It should be noted that while some Republican politicians claim support for Title IX’s equal educational opportunities, successive Republican administrations have attempted to undermine women’s equal access to school’s athletic programs, particularly at the post-secondary level. 

Best Course of Action — Advocates for the Equal Rights Amendment are advised to call, write and meet with their senators—especially Republican senators—and counter any false or misleading objections that they may have regarding the Equal Rights Amendment. The U.S. is one of very few nations that does not have a sex-based equal rights guarantee in the Constitution, and history has shown that the Fourteenth Amendment of the Constitution does not always protect women’s rights. 

Additionally, it should be noted that writing President Biden or Vice President Harris will have little impact on the progress of the ERA. Advocates should sit tight and wait for the process in the Courts and the Department of Justice to proceed. In addition to the two legal cases discussed here, there is a Department of Justice, Office of Legal Counsel (OLC) memo issued during the Trump Administration that concludes the ERA is no longer pending because of the expiration of the 1972 deadline. That memo is preventing the Archivist of the United States, David S. Ferriero, from certifying and publishing the final three ratified states, thus adding the ERA to the Constitution. What needs to happen next is for the new Attorney General, Merrick Garland, to become settled in his job, organize the Department and set in place certain guides and policies. It takes time. 

In addition, we will have to wait and see what the federal Appeals Court concludes in the three Attorneys General promised petition. 

Please Do Not Pressure Officials — We expect in due time that the OLC memo will be withdrawn and/or supplanted with a new one, which will come to a different conclusion hopefully. The decision is up to the A.G. and department officials. It is not the place of advocates and certainly not of elected officials in the administration to pressure the Department of Justice to take these actions. The Department of Justice is an independent agency designed to follow the law—not respond to political pressure. The same holds for the Archivist of the U.S. who has his own duties under Article V of the Constitution and related statutes. Advocates should not be sending letters or emails to that office to “pressure” him to ratify. Unfortunately, a number of outspoken advocates for the ERA have been giving bad advice recently on what ERA supporters should do. 

Persuade Eight More Senators — We must take action to get the Senate to approve H.J. Res 17, the deadline-removal bill, or to hold hearings on S.J. Res. 1, the companion measure introduced by Sen. Ben Cardin (D-MD) with Rep. Lisa Murkowski (R-AK), which has been referred to the Senate Judiciary Committee.  

We also need another eight senators to join in support. Sen. Susan Collins (R-ME) has also joined the effort, but right now no other Republicans have come on board.   

The following senators are suggested as possibilities: Sens. Mitt Romney (UT), Ben Sasse (NE), Rob Portman (OH), Richard Burr (NC), Pat Toomey (PA) and Bill Cassidy (LA); all voted to impeach Donald Trump and may be more likely prospects for the ERA. Two more senators would be required to reach the magic 60 votes and perhaps several of the Republican women, Sens. Deb Fischer (NE) or Shelley Moore Capito (WV) could be persuaded. 

Equal Means Equal Case Appeal — In the meantime, a second appeal is scheduled be heard on Wednesday, May 5 in a federal appeals court in Massachusetts for a case brought by the organization Equal Means Equal. Their case, filed early in 2020 in U.S. District Court in Boston, was dismissed for lack of standing.  The organization’s website notes that later in 2020, 

“Equal Means Equal and two other plaintiffs filed an appeal to the Supreme Court, arguing that as women denied equality under law, they have the right to sue to force the government to add the Equal Rights Amendment to the Constitution of the United States. 

The appeal reiterated the points in the lawsuit originally filed in January (2020) in U.S. District Court in Boston, detailing how congressionally imposed deadlines for states to ratify the ERA are unconstitutional, and calling on the court to compel the Archivist of the United States to officially record ERA as the 28th amendment to the Constitution. The appeal contends the lower court erred when it ruled Equal Means Equal, the Yellow Roses and Katherine Weitbrecht did not have standing to sue to force the Archivist of the United States to certify all 38 states have ratified the ERA. The requisite number of states ratified the amendment Jan. 27, 2020 when Virginia passed the measure. 

‘Petitioners adequately demonstrated concrete injury because respondent’s refusal to publish the ERA, followed by the issuance of an official statement that the ERA is not valid, caused injury to the ERA’s continued vitality,’ the appeal stated, ‘the District Court failed to acknowledge the way respondent’s actions injured the ERA’s continued vitality.’ 

Equal Means Equal President Kamala Lopez took issue with the court questioning the standing of the three plaintiffs, an individual and two organizations representing women deeply affected by a lack of protections that ERA would remedy if added to the Constitution.” 

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