Equal Rights Amendment Moves to Courts After Virginia’s Passage
By: Sami Elamad
Photo by roya ann miller on Unsplash
Critics of the Equal Rights Amendment (ERA) acquired an unlikely ally last month in Supreme Court Justice Ruth Bader Ginsburg, albeit for different reasons. Ginsburg opined last month that she would prefer the ERA “to see a new beginning” and for “it to start over” given the controversy surrounding its adoption.
Last month, Virginia became the 38th state to approve the ERA. And, while the U.S. Constitution provides for an amendment’s adoption after three-fourths, or 38, state legislatures approve it, the ERA’s adoption is far from certain. First introduced in 1923, the ERA would guarantee a legal right of equality on the basis of sex. “Equality of rights under the law,” one of its operative clauses reads, “shall not be denied or abridged ... on account of sex.”
By 1972, both chambers of Congress adopted the resolution to propose the ERA to the states. That resolution included, in its preamble, a seven-year deadline for ratification. In 1977, five years later, Indiana became the 35th state to ratify the ERA. Afterward, however, the ratification process faltered. Recently, however, Nevada passed the ERA in 2017 and Illinois followed suit in 2018. Thereafter, the discourse raged anew.
The ERA’s ultimate adoption is beset by many obstacles, both legally and politically, which could stall the process for years. Among other things, ERA supporters need to overcome a legal battle about the propriety of its adoption and several states, including Alabama, Louisiana and South Dakota, are attempting to rescind their initial approval. If these three states are successful, the ERA’s fate could be doomed.
Virginia, Nevada and Illinois are looking to the courts for help with the ERA’s enactment. The states filed a legal challenge against Archivist of the United States David Ferriero, who oversees the operation of the National Archives and Records Administration, in a D.C. federal district court last month. Ferriero is responsible for publishing and certifying constitutional amendments upon their proper adoption. Ferriero declined to comment to The Advocate, citing pending litigation.
Virginia and its sister plaintiffs make two key arguments in support of their position. First, they argue that, as a textual matter, the seven-year deadline is not part of the proposed amendment. When Congress passed the resolution in 1972, its preamble provided that the ERA “shall be valid . . . when ratified… within seven years.” Thus, since the deadline is only in the resolution’s preamble, it has no legal effect.
Second, the states argue that Article V of the U.S. Constitution does not contemplate any constraints on a “state’s decision about whether or when to ratify a proposed amendment.” Given the absence of any explicit requirement in Article V, the plaintiffs suggest that “reading additional requirements … would upset the important balance the Framers struck.” Thus, the states have broad discretion to determine whether and when to consider or ratify a proposed amendment. More precisely, in the absence of any outright prerogative to articulate deadlines for ratification, Congress cannot impose deadlines for the states.
In December 2018, in the wake of mounting pressure from the ERA’s impending ratification, the Archivist solicited guidance from the Justice Department’s Office of Legal Counsel (OLC). In response, the OLC authored an opinion, concluding that the ERA deadline “came and went,” saying, “Congress may not revive a proposed amendment after the deadline has expired.”
Garrett Epps, a University of Baltimore Constitutional Law professor and The Atlantic Online’s Supreme Court correspondent, said the OLC opinion certainly possesses merit. Epps said the OLC opinion is “trying to convince us that this is not because of a change in leadership.”
Epps further noted that the opinion’s conclusion that any power to determine the validity of a constitutional amendment, after ratification, is wholly vested with the United States Archivist was insupportable.
“There is some chance that if things happen a certain way, the ERA will enter the Constitution,” said Epps.
Epps said the enactment of the ERA, and the plaintiff states’ accompanying litigation, is not necessarily frivolous litigation.
“This is an issue that probably needs to be settled,” said Epps.
Epps also pointed to the recent presidential impeachment proceedings, which illustrated a need to resolve this issue by way of judicial determination.
“There are very strong political incentives” for either side of the ERA debate, Epps said. It’s important, he added, to sincerely examine both arguments. The OLC opinion was trying to “grapple with all these issues.” But, Epps cautioned the need to weigh the balance of information, especially in light of widespread doubts about the credibility of the OLC’s boss, Attorney General William Barr, the country’s chief law enforcement officer.
A final resolution may require the intervention of the Supreme Court. Even then, what the final resolution would look like is far from clear.
(Editor's Note: This article was originally published in the March 2020 [Volume 50, Issue 3] version of The Advocate.)