Depending on your perspective, the ERA has become the Energizer Bunny — or the zombie — of constitutional governance. It’s the amendment that just won’t die.
Nearly 50 years after the Equal Rights Amendment cleared Congress, and 40 years after enough states failed to ratify it before its deadline, backers are pursuing no fewer than three different strategies to try to bring it back to life and make it the 28th Amendment.
The latest attempt at constitutional CPR came this week when three states asked a federal appeals court to order the amendment be considered ratified. Illinois, Nevada and Virginia all have approved the amendment in the last four years, well after the deadline set by Congress expired in 1979. But the states say the deadline itself was illegal, and are demanding to be counted.
Meanwhile Democrats on Capitol Hill pushed legislation through the House in March to retroactively erase the deadline, which they say would make the Illinois, Nevada and Virginia votes legal.
Outside the Beltway, activists are mounting a pressure campaign demanding President Biden and his administration flex executive powers and revoke a Trump-era Justice Department opinion that says the 1979 deadline is binding. That opinion is one reason the National Archives says it hasn’t certified the ERA as the 28th Amendment.
Opposing the ERA backers are a group of Republican attorneys general. They defeated Illinois, Virginia and Nevada in the lower courts, and they say they’re ready to fend off any other attempts to shoehorn the ERA through.
“If DOJ or Congress adopt the contorted logic of ERA proponents to try to unconstitutionally amend the Constitution, Alabama stands ready to challenge those actions as well,” Alabama Attorney General Steve Marshall told The Washington Times. “But I hope that the lawyers at DOJ and members of Congress, who have sworn to uphold the Constitution, will reject any attempt to unlawfully rewrite our founding document.”
The ERA says: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
When it was debated in Congress in 1971 and 1972 and in the states over the ensuing decade, it was seen as a measure of equality between men and women. LGBTQ rights were not part of the conversation, though LGBTQ activists are now among the biggest proponents, arguing the amendment would make them a protected class.
Some analysts say that adding the ERA would be largely symbolic, given laws and Supreme Court decisions in recent years expanding sex discrimination protections. The latest ruling came last year when the justices, in a major ruling, found the Civil Rights Act of 1964, when talking about sex discrimination, already applies to LGBTQ employees.
But former state Rep. Steven Andersson, a Republican who helped shepherd ERA ratification through the Illinois legislature, said laws can be rewritten by a future Congress and judicial interpretations can change.
“A constitutional amendment is a different, and in most persons’ views, permanent protection for women’s rights,” he said.
Besides, he said, when it comes to state discrimination on the basis of sex, courts currently use an intermediate standard for evaluating whether something crosses the line. Enshrining the ERA would elevate that to “strict scrutiny,” the same standard that already applies to racial discrimination.
Standing in the way of ERA backers is the thorny problem of deadlines.
Congress, in sending the amendment to the states, said the amendment must be ratified by the requisite three-fourths of states — 38 out of 50 — by 1979.
With that deadline approaching and ratification still stuck at 35 states, Congress voted to extend the deadline to 1982, in a move already fraught with legal questions — though since no new states signed on in those three years, the matter of whether the extension was legal was never settled.
Decades later, Nevada’s legislature in 2017 voted to ratify, followed by Illinois in 2018 and Virginia in 2020.
Further complicating matters, though, are the five states among the original 35 ratifiers that have since passed legislation revoking their approval. Other states, meanwhile, have passed resolutions saying their ratification was only valid under the original deadline.
North Dakota’s assembly became the latest to do so two months ago, saying its ratification lapsed at 11:59 p.m. on March 22, 1979 — the date of the original deadline.
ERA backers say since the deadline was part of accompanying legislation but not part of the actual amendment itself, it’s not binding.
Last year, the Trump Justice Department’s Office of Legal Counsel rejected that reasoning, and since OLC serves as legal adviser to the entire federal government, its ruling is binding on the Archives.
A coalition of liberal groups, led by Free Speech For People, fired off a letter to new Attorney General Merrick Garland last month asking him to rescind the OLC opinion.
The Justice Department didn’t respond to a request for comment.
But in March, U.S. District Judge Rudolph Contreras, an Obama appointee, rejected the nonbinding argument, ruling that a ratification deadline accompanying an amendment “is just as effective as one in the text of a proposed amendment.”
Virginia, Illinois and Nevada this week appealed his decision to the U.S. Circuit Court of Appeals for the District of Columbia.
“The United States cannot continue forcing women to wait to be recognized as equal under this country’s founding document,” said Virginia Attorney General Mark Herring.
Liz Murrill, solicitor general for Louisiana, another of the states opposing Virginia, Illinois and Nevada, said Judge Contreras got it right and “the decades-long effort to raise the ERA from its grave and ratify the dead proposed amendment are legally flawed.”
Judge Contreras, in his March ruling, did not decide whether Congress could alter the deadline by majority vote, either before or after the deadline passed.
Democrats on Capitol Hill are pressing that very question. In March they powered a bill through the House erasing the 1979 and 1982 deadlines, creating an open-ended time frame for ratification. Chances for that bill surviving a filibuster in the Senate are slim.
Mr. Andersson said even if Congress does act, he expects that, too, will be challenged, and the issue will end up back in the courts.