By its own terms, the Equal Rights Amendment expired in 1982, after Congress extended its own initial expiration date. You remember the ERA, the progressive constitutional amendment of 1972?
Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
It seems too obvious to deny, even if somewhat duplicative of the 14th Amendment’s Equal Rights Clause. But then, women were still subject to sex discrimination back then, with those seeking to break out of traditional gender roles at war over who had to go the market for orange juice.
After the ERA was passed by two-thirds of Congress, it went to the states for ratification, needing three-quarters to ratify. Over the years since, it fell short of the required number until 2016, when three states, Nevada, Illinois and Virginia, finally brought the number to the required 38, and provided you didn’t consider the rescinded ratification of five other states to matter.
During the Trump administration, the DOJ Office of Legal Counsel issued an opinion that the ratification failed as the time set by Congress expired in 1982. OLC has just revised its opinion, putting the issue in Congress’ hands. Long Island Congresswoman Carolyn Maloney, a strong supporter concluded that it’s a done deal.
“The Constitution is clear: You need to do two things. We did it,” Representative Carolyn Maloney of New York, a longtime E.R.A. proponent, told me. Indeed, no amendment that has cleared Article V’s two high bars has ever been excluded from the Constitution — until now.
All of which would be true, but for Congress building into the amendment a deadline. The archivist of the United States, David Ferriero, is now caught in the middle.
The technical reason for this is that the archivist of the United States, David Ferriero, has declined to certify the Equal Rights Amendment, despite a federal law requiring him to do so whenever an amendment has satisfied “the provisions of the Constitution.”
New York Times editorial board member Jesse Wegman blames the Trump OLC’s memo for sowing confusion.
His refusal is based on a 2020 memo by the Justice Department’s Office of Legal Counsel, which provides legal advice to the executive branch. The memo contended that the E.R.A. is no longer valid because it failed to meet the seven-year deadline that Congress initially set and then, when the ratification effort fell three states short, extended until 1982.
That expiration thing doesn’t matter, it’s argued, because the Constitution contains no such requirement.
The supporters’ retort: The Constitution says not a word about either deadlines or rescissions. It says two-thirds of Congress and three-quarters of the states, nothing more. In a 2012 letter to Ms. Maloney, Mr. Ferriero appeared to agree with this interpretation.
But for the 2020 memo, it would appear Ferriero could have certified the amendment as ratified, whereupon it would take effect without further action. Jesse goes on to argue that since the Constitution sets no expiration date for an amendment to be ratified, the Congress that enacted the ERA with an expiration date was wrong and the expiration date should be severed from the rest of the ERA.
Why is this battle happening now? As Jesse notes, if the ERA is ratified, it could provide a backdoor to win by lawfare many of the policies sought by progressives in their omnibus bills that can’t pass the Senate and, potentially, would be lost at the Supreme Court.
What would the E.R.A. accomplish in concrete terms? Its proponents argue that it would address a raft of injustices, from wage gaps to parental leave laws to violence against women, although legal scholars debate how much of a difference the amendment would really make. More likely, Mr. Pozen said, is that its presence could “embolden legislators and judges in a cultural way” by, for example, encouraging the passage of more laws aimed at preventing sex-based discrimination.
There are complex issues at stake for both sides of the argument, although the pro-ratification side has a far steeper hill to climb to get out from under the express condition of ratification within a time frame. But then, there’s another problem that’s given short shrift here: Everyone understood what “on account of sex” meant in 1972. What does it mean today? Are we even talking about the same amendment, and if not, would those who ratified it under one definition still do so under its “evolving” meaning of sex?
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Since your cultural ambassadors appear to be preoccupied, please allow me this one-time shot.
Sadly the ERA would have tough sledding today as radical feminism demands superiority rather than equality.
Well, women are clearly superior to men.
Uh oh, the last paragraph opens the door…
The ERA is unworkable in our current political climate since the premise of it is now considered transphobic. Too much support for it would come from the Wrong People, while others would fight vigorously to abolish the sex-based standard leading to factional warfare among potential supporters.
“By its own terms” the ERA ratification period expired seven years after Congress submitted the resolution to the states — thus, on March 22, 1979, not in 1982. ERA supporters reluctantly accepted the deadline as a legislative compromise that allowed them to finally achieve the required two-thirds votes in both houses.
In 1978, with ERA headed for failure in the legislatures, Congress adopted a resolution, by simple majority votes, that purported to extend that deadline to June 30, 1982. The only federal court to consider the matter ruled that attempt was unconstitutional for two different reasons (Idaho v. Freeman, 1981); the Supreme Court granted cert but then, after the new “deadline” passed with no additional ratifications, vacated the ruling for mootness (i.e., the ERA had failed under either deadline, there was no longer a live issue). The Democratic leadership of the House of Representatives then attempted to restart the entire constitutional amendment process over again, but the start-over ERA fell short of the required two-thirds on the floor of the House (Nov. 15, 1983).
On March 5, 2021, federal district Judge Rudolph Contreras (appointed by President Obama) of the District of Columbia dismissed a challenge by the three states that had adopted pseudo-ratifications in 2017-2020, holding that the states lacked standing, but with an alternative holding that the deadline was constitutionally valid and that the ratifications came “too late to count”; it would have been “absurd” for the Archivist of the U.S. to ignore the deadline, he wrote. (Virginia v. Ferriero) This decision is currently before the U.S. Court of Appeals for the District of Columbia.
The January 6, 2020 opinion by the DOJ Office of Legal Counsel (OLC) held that the ERA died not in 1982, but on March 22, 1979. On January 26, 2022, the OLC issued a new three-page opinion on the ERA, but conspicuously did NOT withdraw the 2020 memo holding that the ERA has not been ratified and is expired. The new opinion did not say that it is up to Congress to decide whether or not the ERA has been ratified; rather, it said the issues were complex and that “A co-equal branch of government, Congress is entitled to take a different view on these complex and unsettled questions.” Well, of course– this is a truism (OLC is lawyer for the Executive Branch, not Congress). But “a different view” from what view? Well, different from the official Justice Department view, which is that the deadline was constitutional and the ERA has not been ratified — a view that the Department has continued to defend in court, both in the D.C. case and in another case involving the claim that the ERA has been ratified, Equal Means Equal v. Ferriero (dismissed for lack of standing by Judge Denise Casper in 2020, affirmed unanimously by First Circuit panel in 2021, en banc review denied without dissent in January 2022).
Beginning in 1981, different ERA-revivalists have presented various components of their claims in various postures to a total of 26 federal judges and justices, 14 appointed by Democrats and 12 by Republicans. They have yet to get a single vote or nod from a single judge on a single component of their scheme.
Douglas Johnson
Director, ERA Project
National Right to Life Committee
If the claim is that it has already been passed by Congress and ratified by enough states (just not in the time limitations provided in the congressional resolution), isn’t the solution for someone to just file a mandamus suit against the archivist, and then the federal courts (very likely SCOTUS) can decide the issue? If it really has been validly passed and ratified, the archivist would have a legal duty and would be subject to mandamus, correct?
That likely where it will end up, but as noted above, the arguments that the amendment has passed have no fared well in court, which is why there is a push to demand recognition following OLC’s revision of its opinion rather than in court. If they can get the archivist to go along, then the burden will shift to the anti-ERA side to prove it wasn’t ratified.
To Scott Greenfield — a few minutes ago I submitted a reply to Dilan Esper, but my reply contained one error — if you accept the reply, please use this corrected version. Thank you for your consideration. — Douglas Johnson]
Dilan Esper,
That is exactly what the attorneys general of Virginia, Illinois, and Nevada did in the case filed in the federal district court for the District of Columbia, Virginia v. Ferriero. This resulted in the March 5, 2021 ruling by Judge Rudolph Contreras (appointed by President Obama) that (1) held that the three states lacked standing because the Archivist’s certification has “no legal effect” and (2) as “alternative holding,” that the deadline was valid and that the three state legislatures’ actions “came too late to count.” I believe Judge Contreras was partly mistaken on (1) — although without definitive legal effect, the Archivist’s certification has certain practical effects — but he was certainly correct on (2), which was also consistent with the 1981 ruling by Judge Callister (which Judge Contreras cited several times), and with the 2020 OLC opinion. Both of these district court opinions were thorough and well acquainted with both the legislative history of the ERA and SCOTUS precedents pertaining to other constitutional amendments. Judge Contreras’ opinion is now on appeal to the D.C. Circuit, which I believe will find it persuasive.
In Equal Means Equal v. Ferriero, activists presented similar claims and sought similar remedies. The case was dismissed for lack of standing by Judge Denise Casper (also appointed by President Obama), a decision affirmed unanimous by a First Circuit panel, with en banc review denied without dissent by the six circuit judges (five of them appointed by Democratic presidents).
The claim that all that stands between the ERA and the Constitution is a Trump-era Justice Department memo does not survive review of these cases or the rest of the 40-year history of judicial rulings regarding the ERA’s status. That claim that the ERA is now part of the Constitution, or can be made so by declarations by elected officials, is a political construct. The claim is being advanced in a concerted campaign to create a public perception that the ERA has prevailed, while implicitly or explicitly warning that if the courts fail to conform to this perception then they have stepped beyond their proper role and stolen the ERA. For example, in a Washington Post opinion piece published November 22, 2021, David Pozen and Thomas P. Schmidt of Columbia Law School asserted, “On many matters of constitutional law, the legal community has accepted that the Supreme Court enjoys the final word. Questions about whether an amendment has become part of the Constitution are an important exception.”
Douglas Johnson
Director, ERA Project
National Right to Life Committee
Two suggestions. If you want to leave a reply for someone, try using the reply button. If you want anyone to read your tedious comment, try being succinct. Remember, this ain’t your soapbox.
Ultimately, though, it IS up to SCOTUS. If SCOTUS takes a case and then rules the ratification is valid, that would be the last word. Same if they ruled it invalid.
I agree. But some of the ERA-revivalists perhaps would not agree– under their theories, the courts have no role here. For example, a counsel to Congresswoman Maloney’s committee said publicly on January 16, 2022, “Running tally of roles given by Article V of the U.S. Constitution to the judiciary in the amending process: 0.” They think it is impossible for the ERA to ever fail– in their world, the ratification process is a lobster trap and it lasts forever.
Thank you for your suggestions.
1. I did use the reply button. I don’t know why the reply ended up in the main thread.
2. It is Mr. Greenfield’s soapbox. There are a number of explicit rules, but none regarding length of reply. Mr. Greenfield also moderates the replies, and reserves the right to edit replies, or to reject them “for any reason or for no reason,” I believe it says. Therefore, I will continue to submit replies long or short as I see fit, and Mr. Greenfield will continue to post them in whole or in part, or not, as he sees fit. Assuming any further replies by me do appear, you will continue to read them or not as you see fit, although my suggestion to you is that you not presume again to speak for every visitor here.
In this instance, Miles speaks for all non-nitwit guests.