1970s relic no more: The Equal Rights Amendment is about to take effect. Or not.
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Jan 25 - Better late than never is an excellent principle when writing thank-you notes or repaying debts – but does it apply to amending the U.S. Constitution?
That’s one way to look at the fight over the Equal Rights Amendment.
If its proponents are to be believed, the ERA will go into effect on Jan. 27, exactly two years after Virginia became the 38th state to ratify it.
But opponents point out that the deadline set by Congress to ratify the amendment expired 40 years ago. They say the ERA is DOA.
The question is now pending before the U.S. Court of Appeals for the D.C. Circuit in litigation prompted by the refusal of the national archivist to publish and certify the would-be 28th amendment. Lawyers tell me test cases invoking the ERA in individual sex-discrimination suits are likely to follow in the coming weeks.
If the D.C. Circuit case was decided on the quantity of amicus briefs, the renown of the lawyers who signed them and the gross revenue of their law firms, the pro-ERA would side would win hands-down. A veritable who’s who of women in Big Law including Loretta Lynch, Kathleen Sullivan, Beth Brinkmann, Linda Martin, Linda Coberly and Tacy Flint have weighed in this month on behalf of amici in support of the amendment.
Amici on the other side?
Zilch so far, although 16-lawyer Consovoy McCarthy (whose clients have included former President Donald Trump) represents intervenors Alabama, Louisiana, Nebraska, South Dakota and Tennessee in arguing the ERA was improperly ratified and thus invalid. Consovoy partner Cameron Norris did not respond to a request for comment.
The main text of the ERA is simple and, one would hope, non-controversial: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
Honestly, I find it embarrassing that our constitution lacks such a protection. Equality-of-sex clauses are standard not just in the constitutions of other industrialized democracies, but also in those of countries such as Cuba, Iran, Sudan, Syria and Venezuela. As Baker Donelson’s Katherine Funk points out in an amicus brief on behalf of the U.S. Conference of Mayors and other organizations, “Even North Korea’s Constitution provides that ‘Women are accorded equal social status and rights with men.’”
It’s a sad state of affairs when North Korea bests us on civil rights.
Still, I admit the fight over the ERA initially struck me as almost quaintly anachronistic, a throwback to the era of bell bottoms and macrame plant hangers.
But the plaintiffs make a compelling case that the amendment is still relevant and necessary, a way to supplant the existing patchwork of federal, state and local laws addressing gender-based discrimination. It would also put such claims on the same “strict scrutiny” legal footing as race, religion and national origin bias complaints, requiring that discriminatory laws must be narrowly tailored to a compelling state interest to be upheld as constitutional.
“Support for the ERA is alive and well,” said Liza Velazquez, a partner at Paul, Weiss, Rifkind, Wharton & Garrison who represents 86 corporate amici ranging from Apple Inc to WeWork Inc. “Justice has no deadline. If anything, the need is even greater.”
Alas, the question before the D.C. Circuit is not whether the ERA is a good and worthy idea.
Instead, the court will consider whether plaintiffs Virginia, Illinois and Nevada – the last three states to ratify the ERA to reach the three-fourths approval required by Article V of the Constitution – have standing to sue Archivist David Ferriero and if so, whether he erred by refusing to publish and certify the amendment promptly.
In March 2021, U.S. District Judge Rudolph Contreras of the District of Columbia ruled the states lacked standing because they weren’t actually injured by the archivist’s non-action.
Contreras, who was appointed to the bench in 2012 by then-President Barack Obama, wrote that the archivist’s “publication and certification of an amendment are formalities with no legal effect.”
But the archivist’s refusal to act has ramifications that go beyond whether souvenir Constitutions at the National Archives gift shop have 27 or 28 amendments.
For example, amici say certifying the amendment will put state and local entities on notice to review any potentially discriminatory laws on their books that might not pass muster.
Boies Schiller Flexner lawyer Vanessa Tussey, who along with two other firm associates penned an amicus brief on behalf of organizations in Virginia, Illinois and Nevada that worked to get the ERA ratified, argues that archivist’s refusal to act inappropriately elevates his role.
As Tussey put it to me, why should an “unelected, executive branch official have the discretion to determine the validity of the ratification of a constitutional amendment by state legislators?”
To be fair, Ferriero, a librarian by training, doesn’t seem to be on a mad power grab. A National Archives spokesperson said in an email that the archivist “defers to DOJ on this issue,” pointing to a Jan. 6, 2020, memo by the Office of Legal Counsel that concluded Congress “had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the States.”
Contreras in dismissing the suit last year reached the same conclusion. “Plaintiffs’ ratifications came too late to count,” he wrote.
The preamble of the ERA (though not the text of amendment itself) requires state legislatures to ratify the ERA, which was passed by Congress in 1972, “within seven years from the date of its submission.”
As the deadline approached, Congress extended it to 1982. That extension was challenged by several states, but it didn’t matter – it came and went without the requisite 38 states ratifying the ERA. But now that Virginia two years ago adopted the amendment, proponents say it takes effect as law of the land on Jan. 27, never mind the original time limit.
Although the judge didn’t address it, there’s another problem as well: Idaho, Kentucky, Nebraska, South Dakota and Tennessee went on to rescind their prior ratifications. Is that allowed? It's unclear.
The pro-ERA side has a steep hill to climb. The Consovoy lawyers likened it to “the constitutional equivalent of an ‘interpretative triple bank shot.’”
Still, I wouldn’t count the women’s libbers out. They argue, for example, that Article V nowhere imposes a ratification deadline or gives Congress the authority to do so. And they note that the 27th amendment (the one about the timing of Congressional pay raises, yawn) was first proposed in 1789 but not ratified until 1992, although the text of that amendment didn’t include an expiration date.
Perhaps the most logical, albeit anticlimactic, course of action is that proposed by law professors Erwin Chemerinsky, Noah Feldman, David Pozen and Julie Suk, who are represented by Jessica Ellsworth of Hogan Lovells: Kick the question back to Congress.
“Congress is the only standing body of the national government with a textually prescribed role in amending the Constitution,” they argue. “As such, Congress should have the opportunity to decide whether the ERA has been effectively ratified.”
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