- - Wednesday, December 25, 2019

This week, a number of states have filed legal challenges to the revived efforts to ratify the Equal Rights Amendment more than 40 years after it expired.

The Democratic leadership of the Virginia General Assembly has made it plain that “ratification” of the ERA will be a high priority in January.

Any purported ratification will be little more than political posturing because the legal issues have already been effectively decided by the U.S. Supreme Court. The ERA is legally dead. That decision was made in 1982 in a case that I helped litigate.

Article V of the U.S. Constitution requires Congress to choose the method for ratification — either state legislatures or state ratifying conventions. 

Following the usual practice, Congress required that ratification of the ERA would be done by state legislatures. And, consistent with prior proposed amendments, it specified that the ratifications must be within seven years — by March 22, 1979.

The Supreme Court has expressly held that Congress may include deadlines to ensure amendments are approved contemporaneously with their proposal. The court said that Congress’ power to establish a deadline is a derivative of the power to specify a mode of ratification.

By the original deadline, only 35 states had ever purported to ratify the ERA — three short of the required three-fourths majority.

More than that, there are two basic problems with the conclusion that 35 states ratified the ERA.

First, five states — Idaho, Kentucky, Nebraska, Tennessee and South Dakota — rescinded their ratifications. In our litigation in the 1970s and 1980s, the Federal District Court in Idaho held that a state is free to rescind its ratification any time before 38 ratifications are complete.

Second, and not nearly as well known, well more than a dozen states enacted ERA “ratifications” that contain mistakes in the text.

It turned out that the mistakes in the text of these ratification documents mainly came from a model bill sent out to the states by the National Organization for Women (NOW). Many legislatures ratified the NOW version, which was not the same as the text proposed by Congress.

In addition to all of these problems, Congress’ 1979 bill purporting to extend the deadline for ratification until June 30, 1982, was constitutionally ineffective. There are two reasons why. 

First, Congress has no continuing jurisdiction over a proposed amendment once it has been sent to the states. Congress can change neither the mode of ratification nor any deadline established. It doesn’t matter where this appears in the document.

Second, Congress only can exercise its Article V power over amendments with a two-thirds majority. But the ERA extension was only passed by a simple majority.

The Federal District Court in Idaho held that the extension was unconstitutional.

This ruling was appealed to the Supreme Court by the Justice Department. NOW also filed a petition for a writ of certiorari. Normally, there is little difference between an appeal and a cert petition, but in this case that difference matters.

The Supreme Court “noted probable jurisdiction” in the appeal and also granted the cert petition — meaning the justices accepted the case. But this action was taken just a few months prior to June 30, 1982. So, the court froze the case until the second deadline passed.

After it expired and no further states ratified, we were all required to file briefs to discuss whether the case was moot.

Ultimately, the court issued an order in the appeal declaring the case moot and vacating the decision below.

The case was moot for only one reason. The deadline for passing the ERA was over. 

Unlike denials of cert petitions, the Supreme Court’s summary dispositions of appeals are considered decisions on the merits. Thus, the Supreme Court has already ruled that the ERA was dead in 1982.

Even though Nevada and Illinois have purported to ratify the ERA in the last couple years, Virginia will not be the 38th state to validly ratify. That’s because, as the Supreme Court already made clear, the ERA has already expired.

Moreover, there are important policy reasons that lead me to believe that the ERA is unwise. Potentially forcing states to fund abortions is just one of those reasons. Two state supreme courts have interpreted their state ERAs to require such funding. Some ERA advocates have also claimed that the ERA might be interpreted to add gender identity to the U.S. Constitution. That would create a host of problems, such as undermining women’s opportunities in sports.  

If the ERA is a good idea, its supporters have a clear alternative that does not involve rampant abuse of the constitutional process. They can go to Congress and start over. And if two-thirds of Congress and three-fourths of the states agree with them, it will pass.

Starting over respects the process, the people and the integrity of the Constitution.  

• Michael P. Farris is president, CEO and general counsel of Alliance Defending Freedom. 

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