Lawsuit Seeks To Preempt Efforts To Declare Equal Rights Amendment Ratified

A newly filed lawsuit seeks to blunt expected efforts in 2020 to "ratify" the Equal Rights Amendment even though it effectively died nearly 40 years ago.

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 Five states, including South Dakota, that initially ratified the ERA have since rescinded their decisions, though two other states, Nevada in 2017 and Illinois in 2018, have recently ratified the ERA.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:

FILED UNDER: Gender Issues, Law and the Courts, U.S. Constitution, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Laura Carter Callow says:

    There is no time limit in the Constitution for adding an Amendment. The power to amend is evenly divided. Congress proposes States ratify. The addition of a time limit by Congress upsets the balance of power and is a power grab by Congress and a take away of States Rights. The Supreme Court approved time limits in Dillon v Gloss. But said they had to be contemporaneous and reasonable. Congress ignored the Court when it accepted the ratification of the 203 year old Madison Amendment. Why should one Amendment be allowed more than two centuries to be ratified and the ERA limited to a measly ten.

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  2. JKB says:

    Seems to be a last hurrah for the early ’50s Boomers for whom this was an issue. Ironically, the impact of the amendment would be to give purchase to the pushback on discrimination against men. Prof. Mark Perry has had quite a bit of success calling out universities for their discrimination against men through women-only scholarships, athletic facilities restrictions, etc.

    So the question is, why now? And the likely answer is those 20 in 1970 are going to be 70 in 2020.

  3. Mister Bluster says:

    ….discrimination against men

    I think men could have sued for their equal rights had the Equal Rights Amendment been adopted.
    I see nothing in the text that states it only applies to women.

    Equal Rights Amendment
    Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
    Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
    Section 3. This amendment shall take effect two years after the date of ratification.

  4. @Laura Carter Callow:

    Because the 27th Amendment didn’t have a Congressionally imposed deadline for ratification.

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  5. @Laura Carter Callow:

    The Supreme Court approved time limits in Dillon v Gloss. But said they had to be contemporaneous and reasonable.

    The original seven-year deadline was both contemporaneous and reasonable. One could make an argument about the validity of the subsequent extension of time, but the argument is moot because no states ratified the amendment between 1979 (the date the original seven-year time limit expired) and 1982 (the extended deadline.)

    Congress ignored the Court when it accepted the ratification of the 203-year-old Madison Amendment.

    Congress played no role in accepting the ratification of the 27th Amendment. After the final state ratified it, it was accepted to be part of the Constitution by the Archivist of the United States and by the Secretary of State, who is the Executive Branch authority responsible for certifying such matters. Since that happened, no party has ever attempted to challenge the validity of the 27th Amendment in Court.

  6. Gustopher says:

    While I oppose the ERA (I think the equal protection clause is sufficient, and fear that the ERA will create a requirement that discrimination is legal for any not-specifically enumerated group), it’s hard to read these lawsuits as anything other than certain Republicans trying to block equal rights on technical grounds.

    A fair bit of chutzpah there.

  7. Gustopher says:

    The poor men who are being savagely repressed could sue under the equal protection clause, could they not?

    This leads me to wonder if the dystopian hellhole for straight white men isn’t real, or whether the straight white men are too dumb to figure that out.

  8. HarvardLaw92 says:

    @Doug Mataconis:

    Not so fast …

    It’s actually up in the air. Everybody seems to be focusing on Dillon v. Gloss, but they’re overlooking Coleman v. Miller.

    SCOTUS has been more than clear that whether or not an amendment has been properly ratified by the states is a question left to the sole discretion of Congress. The question of whether too much time has passed with regard to the ratification of an amendment is a political question, not a legal question. If Congress chooses to accept the amendment as ratified, despite any verbiage it may have imposed limiting the time for ratification, it arguably has that authority. Coleman seems to me to make it clear that this issue is non-justiciable.

    I’ll agree that the amendment is superfluous. The women this amendment purports to be protecting are already equally citizens of this country, ergo the same 5th and 14th amendments that protect me also protect them.

    If anything, it should be viewed as humiliating for women – a new amendment we vote on declaring that they’re equal under the law to men. I can’t help but imagine that they’re going to be mortified to discover that there was reason to believe that they weren’t before, but if Congress wants to accept it as ratified- then Congress can accept it, 7 years, 17 years, or 70 years later. It has that power.

  9. @HarvardLaw92:

    As has already been stated, the Supreme Court has already ruled in Dillon v. Gloss, 256 U.S. 368 (1921) that Congress has the authority to set a time limit for ratification. On that basis alone, I think it’s clear that at some point the issue of whether or not the ERA is part of the Constitution is part of the Constitution, assuming that Virginia acts as some have anticipated.

    As I note in the post, though, I think its an open question whether or not this lawsuit is properly before the courts because it is being brought before any such ratification has taken place. In the Dillon case, the claim that Congress lacked such authority was made by someone charged with violation of the Volsted Act, which was authorized by the 18th Amendment. In that case, the Defendant appears to have argued that the amendment was invalid because Congress didn’t have the authority to set a time limit for ratification. It was a moot point since the Amendment was ratified within the 7-year time limit. Among other things, this suggests to me that any lawsuit challenging the validity of a “ratified” ERA would have to await a case where some policy was challenged as being a violation of the ERA or would at least have to await the actual purported ratification of the Amendment. That’s different, of course, from saying that the courts have no role in the process at all. In fact, it is clear to me that determining whether or not the amendment was properly ratified would be an essential part of any Complaint seeking to enforce its provisions.

    The courts ruling in Dillon was further clarified in Coleman v. Miller, 307 U.S. 433 (1939), which you also make note of in your comment, in which the Court held that a proposed Amendment that does not contain a time limit for ratification remains before the states for ratification at any time. This would appear to answer any question regarding the legality of the 27th Amendment as well.

    The one issue that the courts have not dealt with is whether or not states have the authority to rescind their ratification. As a matter of law, I see no reason why they should not but that’s a question that this case raises and which would need to be resolved if the matter is raised before the court.

    What both the Dillon and Coleman case make clear though is that there is a crucial, and inevitable, role for the courts to play in determining whether or not an Amendment is part of the Constitution. This isn’t just a political question.

  10. HarvardLaw92 says:

    @Doug Mataconis:

    I’m not disputing Dillon. Congress certainly CAN impose time limits. I’m just saying that the verbiage in Coleman suggests that Congress can also choose to IGNORE its own imposed time limits if that’s what it decides to do, and whether or not it chooses to do so is entirely within its own discretion. There is no role for the courts to intervene in that decision. It’s a prerogative of the legislative branch.

    That said, I completely agree that state legislatures are the arbiter of the efficacy of their own official acts, and retain the power to rescind a ratification up to the point where an amendment has been ratified. Once that has occurred, obviously, there is no reversing it.

    I’m not remotely arguing that this thing will have been ratified, as the rescissions are quite legitimate. I’m just suggesting that these time limits included in joint resolutions are, in and of themselves, not a justiciable question. If Congress chooses to implement an otherwise ratified amendment in spite of a time limit having been exceeded, there is really no basis for a court to inject itself into that event. That decision is for Congress and Congress alone.

  11. @HarvardLaw92:

    I don’t see how Coleman gives Congress that authority at all. The amendment at issue in that case, the proposed Child Labor Amendment, did not have a time limit for ratification at all. That’s different from an amendment that has a time limit and is purported to have been ratified by the states well after the expiration of the deadline that Congress set. The Coleman decision does suggest that Congress has the authority to extend the deadline, which happened in the case of the ERA although the extension came before the expiration of the time limit. It is not clear if Congress has the authority to extend, or eliminate, the time limit after the deadline has passed. That’s an issue that would, by definition, have to be decided by the courts at some point.

    In any case, it is unlikely that both Houses of Congress would agree to rescind the time limit set by Congress originally (or the extension), In that case, the ruling in Dillon, that Congress can set a time limit (as it did in the case of the 18th Amendment and the ERA among others), would control and the “ratification” would be invalid.

    I also agree that the recissions are valid, meaning that any action by Virginia would be insufficient to ratify the amendment in any case.