Latest Developments In The Ratification Of The Equal Rights Amendment – Technically Effective Today

The House of Representatives is on “District Work Period” this week, but returns to work in Washington on February 1. So this can’t be done today, it will have to wait until next week, but get it done!

The Huffington Post reports, A Trump-Era Memo Is Blocking The Equal Rights Amendment From Being Ratified Today:

The Equal Rights Amendment, an addition to the U.S. Constitution that would ensure women have equal protections under the law, was first conceived nearly a century ago. It wasn’t until 1972 that Congress finally passed it, allowing states to ratify the amendment one by one. The country needed 38 states to ratify the ERA and ― even though it took nearly 50 years ― Virginia became the 38th state to approve the amendment in 2020. After the final state’s ratification, the ERA should go into effect two years later.

Thursday marks the second anniversary of Virginia’s ratification, meaning the ERA should become the 28th Amendment of the U.S. Constitution today.

But a memo from the Trump administration’s Department of Justice stands in the way.

“Today is the two-year anniversary of Virginia becoming the 38th and final state needed to ratify the Equal Rights Amendment, making it the law of the land. We’re not going to let a Trump-era memo stand in the way of the 28th amendment to the Constitution, which finally guarantees protections against sex discrimination in our foundational document,” Rep. Jackie Speier (D-Calif.) told HuffPost in a statement Wednesday evening.

The 2020 Justice Department’s Office of Legal Counsel released a memo weeks before Virginia ratified the amendment, stating that the ERA resolution expired after its 1982 deadline and that any state ratification that happened after 1982 was null.

“We conclude that the ERA Resolution has expired and is no longer pending before the States,” the memo says. “Even if one or more state legislatures were to ratify the 1972 proposal, that action would not complete the ratification of the amendment, and the ERA’s adoption could not be certified under 1 U.S.C.”

Au contraire. This legally flawed memo is incorrect on the law, as many legal scholars have argued (including at this blog). It was politically motivated to appease Donald Trump’s fundamentalist base which is opposed to equal rights for women.

Under instruction from the Trump administration’s Justice Department, the National Archives and Records Administration declined to publish the ERA to the Constitution despite it achieving the necessary steps. The Trump administration effectively killed the ERA and told advocates to start the entire process from scratch after decades of work.

Rep. Speier, co-chair of the Democratic Women’s Caucus, introduced a House Resolution on Thursday urging Congress to acknowledge that the ratification of the Equal Rights Amendment is valid.

“It is the sense of the House of Representatives that the article of amendment to the Constitution relating to the equality of rights (commonly known as the ‘Equal Rights Amendment’), duly proposed by 2/3 of each House of the Congress and ratified by more than 3/4 of the several States, has met the requirements of the Constitution and become valid to all intents and purposes as a part of the Constitution, and shall be known as the ‘Twenty-Eight Amendment to the Constitution,’” reads the resolution, which is shown in full at the end of this article.

Although the deadline for ratification did pass in 1982, supporters of the resolution argue that the expiration is arbitrary because Congress has the power to extend or remove deadlines.

Experts and scholars point to several other reasons that the 2020 memo should be thrown out, including that Article V of the U.S. Constitution does not mention anything about deadlines. And although the 1982 expiration date was included in the preamble of the ERA, it’s not included in the text that was ratified by 38 states. Separately, the 27th Amendment, which prohibits laws that change a congressional lawmaker’s salary right before an election, was added to the Constitution 200 years after it was first proposed. Additionally, some critics of the ERA often point out that five states rescinded their ERA ratification in the last decade, but the 14th Amendment was later passed even though two states attempted to rescind their ratifications. [There is no constitutional provision which provides for rescission of ratification.]

Democratic lawmakers are angry that a memo from a former administration ― specifically a notoriously anti-woman administration ― is stalling such critical protections for women. Sens. Richard Blumenthal (D-Conn.) and Amy Klobuchar (D-Minn.), as well as Reps. Carolyn Maloney (D-N.Y.), Catherine Cortez Masto (D-Nev.) and Speier, wrote a letter to Assistant Attorney General Christopher H. Schroeder urging him to withdraw the 2020 Office of Legal Counsel (OLC) opinion.

“It is inexcusable that in the year 2022, women and girls still cannot find a guarantee of equality under the law reflected in their Constitution. Moreover, the intermediate scrutiny that courts currently apply to laws discriminating on the basis of sex is a judge-made doctrine, subject to the whims of the courts,” the lawmakers wrote. [A fundamental right guaranteed by the Constitution is reviewed under the strict scrutiny standard of review.]

The ERA simply reads: “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 would be only the second mention of women’s rights in the U.S. Constitution. The one mention now is in the 19th Amendment, which gave women the right to vote in 1920.

“After generations of fighting for the ERA, sex equality deserves a permanent home in the Constitution. A flawed opinion from the OLC must not be allowed to stand in the way of their rights,” the lawmakers said in their letter to the assistant attorney general. “It is long past time to bring the United States Constitution into the 20th (let alone the 21st) century by expressly recognizing equality on the basis of sex.”

Maybe the media should be scheduling interviews with Assistant Attorney General Christopher H. Schroeder today to press him on what his response is to the letter from members of Congress. He should rescind the deeply flawed legal reasoning of the January 6, 2020 Office of Legal Counsel memorandum.

And you should be pressing your members of Congress and Senators today to support Rep. Jackie Speier’s House Resolution urging Congress to acknowledge that the ratification of the Equal Rights Amendment is valid.

This can be voted on in Congress as early as next week.

The 19th* News(letter) reports, In 2022, a revived legal fight over the ERA takes shape (January 10, 2022):

A decades-old legislative effort to recognize the Equal Rights Amendment and its protections against gender discrimination has entered a new year with a revived legal fight.

Democratic attorneys general for Illinois, Nevada and Virginia filed arguments this month as part of an appeal to a 2020 lawsuit to formally recognize the Equal Rights Amendment.

U.S. District Court Judge Rudolph Contreras [a Barack Obama appointee]  dismissed the suit last year, saying that “laudable as their motives may be,” the attorneys general did not have standing to sue and that a seven-year deadline set decades ago by Congress to ratify the amendment had expired. On Monday, the ERA Coalition and other equity-focused groups filed an amicus brief offering formal support for the appeal.

“Our hope is that this amicus brief will convey why it’s appropriate to allow a longer time than seven years for a civil rights and cultural change like the one the ERA reflects,” said Linda Coberly, an attorney and chair of a legal task force for the ERA Coalition, which says it is made up of nearly  200 organizations.

Supermajorities in both chambers of Congress ratified the Equal Rights Amendment in 1972 following decades of advocacy. The ERA text reads in part: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

ERA advocates believe that despite some court rulings affirming protections against gender-based discrimination in recent decades, the amendment is still necessary to address legal loopholes around discrimination in work as well as domestic and sexual violence.

The lawsuit specifically challenged the actions of the United States archivist, a federal employee who publishes new amendments to the U.S. Constitution when requirements are met under Article V of America’s founding document.

In January 2020, after Virginia became the 38th state to ratify the ERA (the threshold needed for an amendment to be added), the archivist refused to certify it. The U.S. Department of Justice at the time issued an opinion citing the passed deadline.

The attorneys general argue in their new legal filing this month that the archivist’s refusal to make the ERA the 28th Amendment establishes the legal framework for the lawsuit to proceed.

“The ERA has been properly ratified by the states and any attempt to prevent its inclusion in the Constitution is without basis in law,” Virginia Attorney General Mark Herring said in a statement. “The Equal Rights Amendment will finally ensure true equality in our nation’s foundational document and correct an injustice of historic proportions.”

The future of Virginia’s legal involvement in the ERA is unclear. Herring is leaving office this week after losing reelection in November to Jason Miyares, a Republican former state lawmaker who voted against ratifying the ERA in 2020. On January 6, Herring issued an opinion that Virginia cannot rescind its 2020 ratification.

The attorneys general also claim in their amicus brief that “Congress lacks authority to impose a timeline for ratification in this manner.” ERA advocates have been lobbying Congress to remove any deadline associated with the amendment. Democrats in Congress overwhelmingly back those efforts, advancing a resolution in the House [last year]. The effort is stalled in the more evenly split Senate, where it would need 60 votes but just a handful of Republicans have expressed public support. [Another casualty of the Jim Crow relic Senate filibuster rule.]

Nearly 50 years ago, Congress gave state legislatures seven years to ratify the amendment. (The use of time limits in amendments began in the 1900s, and debate over the ERA in particular advanced in part because of the deadline.)

Under rules for amending the Constitution, three-fourths of state legislatures, or 38, must ratify an amendment for it to be adopted. Despite 30 states ratifying the amendment within the first year, a public campaign to oppose the ERA, led in part by Phyllis Schlafy, halted its momentum. Schlafy and others claimed the amendment would remove various legal protections for women. In recent years, opposition has focused on the legal ramifications of the ERA on abortion rights.

A three-year extension by Congress, a move that separately was legally challenged, did not result in more states ratifying the amendment.

Decades later, a grassroots movement led by women of color and LGBTQ+ people renewed ratification efforts in state legislatures. In 2017, Nevada ratified the ERA, followed by Illinois in 2018 and Virginia in 2020.

ERA advocates including Coberly believe the amendment is already a part of the Constitution because the key requirements — approval by Congress and state legislatures — have been met and Article V does not specify otherwise. Legal scholars have highlighted the winding path of how some amendments have been added to the Constitution, including the fact that the 27th Amendment was added more than 200 years after Congress originally ratified it.

“There’s been all kinds of messes over the years about the amendment process. It’s not a tidy process,” Coberly said. “So the fact that this is all going on with the ERA — it’s actually not that unusual. I mean, the last amendment that was put in the Constitution was proposed by James Madison. And it took 203 years to ratify.”

Groups including National Right to Life have argued that the ERA would be used to defend abortion rights. [They fear the strict scrutiny standard of review.]The organization has pointed to decades of court rulings to argue that the deadline initially set by Congress cannot be retroactive and lawmakers should start over.

[S]eparately, several states have rescinded their prior ratifications of the ERA, arguing in court filings related to the 2020 lawsuit that the amendment is not a part of the Constitution. The district court judge did not address this issue in his ruling. ERA supporters have countered that other efforts to rescind an amendment — particularly, some states rescinded their support for the 14th Amendment — were still counted toward the three-fourths threshold.

Other issues abound as the attorneys general’s lawsuit goes through the appeal process. Coberly of the ERA Coalition noted that additional language in the ERA text states that the amendment takes effect two years after final ratification — in this case, January 27, 2022, which marks when the Virginia legislature finalized its approval of the amendment in 2020.

Coberly said people could file lawsuits after that seeking relief from gender-based discrimination under the ERA, opening up new legal questions.

The federal government has several weeks to respond to the latest legal arguments. The appeal process is expected to take several months.

Blog For Arizona contributor Diane Post writes at the Gila Herald, ERA Becomes the 28th Amendment on January 27:

The ERA Task Force Arizona is hosting a celebration on Jan 27, 2022, when the ERA (Equal Rights Amendment) becomes the 28th Amendment to the U.S. Constitution. The state of Virginia ratified the amendment on Jan. 27, 2020, making it the 38th state as required by the Constitution Article V.

Our new 28th Amendment provides, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Congress has the power to enforce the amendment by appropriate legislation. The amendment allowed a two-year window from the date of ratification for the national and state governments to remove discriminatory laws, after which the Amendment takes effect. The effective date is Jan. 27, 2022.

The 28th amendment overrides the current, often ineffective, patchwork of state and federal laws that prohibit sex discrimination. The amendment will also serve as a basis to address areas in which sex discrimination is rampant including female genital mutilation, sex trafficking, and marriage of child brides. It will require strict scrutiny by the courts and make “sex” a protected category like color, race, national origin, and religion. The amendment is important for everyone – women, men, girls, and boys – because each of us is entitled to equal rights under the law.

ERA Task Force Arizona completed an exhaustive review of all Arizona laws to comply with the 28th Amendment in 2021 but unfortunately, the state legislature has taken no action. Arizona is one of the 12 remaining unratified states. Representative Powers Hannley [also a Blog For Arooma contributor] introduced HCM2005 to eliminate the unconstitutional deadline and HCR2021 for Arizona to ratify the ERA. A ratification bill is being introduced into the State Senate by Senator Steele on Jan. 27. The state needs to join the rest of the United States in declaring that it believes in equality for women and girls.

I hope that Diane, Pamela, and Senator Steele will do a follow-post on their efforts today.