At the 2019 Women’s March in Tallahassee, marchers from around the state called for passage of the ERA, equal pay for equal work, and support for planned parenthood. Photo: Colin Hackley
The Equal Rights Amendment, five decades in the making and still counting, has been ratified in the requisite 38 states but is still in contention between federal courts, the Trump administration, Congress, and advocacy groups.
President Trump’s lawyers in the Department of Justice moved to block implementation of the ERA after the state of Virginia in January became the 38th state to ratify it, achieving the threshold of adoption by three-fourths of the nation’s states.
In Florida, lawmakers have not voted on the ERA since 1982, when the House narrowly passed it and the Senate narrowly did not. This year, the Republican-led Legislature refused to hold any hearings on the proposed amendment, although numerous legislators sponsored pro-ERA and equal-pay bills.
Virginia’s ratification and the DOJ’s blockade triggered a cascade of lawsuits.
Equal Means Equal, an ERA advocacy organization, and attorneys general in 23 blue states are fighting the blockade, demanding in various legal filings that the ERA be implemented.
Attorneys general in five red states have sided with Trump and his Department of Justice, led by Attorney General William Barr.
The next front for the partisan battle over equal rights for women is in the U.S. District Court for the District of Massachusetts, where Judge Denise Casper is reviewing opposing motions debating whether the ERA should become law.
Technically, timing is at the core of the legal debate. ERA foes argue that the 38-state threshold was not achieved within the deadlines set by Congress, according to state and federal records.
ERA advocates say the battle is and has always been over equal rights for women, especially their right to equal pay for equal work, reproductive rights, and protection from sexual harassment and violence. Various statutes address those issues to various extents but they are impermanent, unlike a constitutional amendment.
ERA foes of old argued, among other things, that equal rights for women could subject them to the military draft (the U.S. was still at war with North Vietnam in the 1970s), could eliminate wives’ alimony and mothers’ advantage in custody cases, and could remove special treatment in the workplace such as maternity leave.
In lawsuits filed this year, the policy position of contemporary ERA foes is chiefly focused on how the ERA may solidify abortion rights that conservatives are trying to overturn.
Key events in the timeline
— In 1971 and 1972, the two chambers of Congress overwhelmingly approved the ERA and dispatched it to the states for ratification. The president was Richard Nixon, a Republican. The amendment 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.”
— Congress set a deadline of 1979 for ratification by three-fourths of the states and then voted to extend it to 1982. Thirty-five states ratified it within the deadline, but anti-ERA forces mobilized by conservative activist Phyllis Schlafly (portrayed in the 2020 FX series “Mrs. America” by actress Cate Blanchett) halted further progress.
— In the late 1970s, five states voted to rescind ratification. No courts have yet determined whether rescissions count. The Constitution is silent on the matter.
— In 2017 and 2018, Illinois and Nevada ratified the ERA. Federal Archivist David Ferriero recorded those ratifications in the federal archives.
— In January, the Virginia General Assembly became the 38th state legislature to ratify the ERA. The state submitted its ratification documents to the federal archivist to be recorded, as he had done for Illinois and Nevada, and expected the action to trigger implementation of the ERA as the nation’s 28th constitutional amendment, according to court records.
— The Department of Justice, headed by Attorney General William Barr, appointed by President Trump, quickly directed Ferriero not to accept Virginia’s ratification documents, contending the ERA deadline has long expired and the proposed amendment is dead. Republican attorneys general in Alabama, Louisiana, and South Dakota filed a lawsuit aligned with the DOJ opinion.
— Democratic attorneys general in Virginia, Nevada, and Illinois countered with a lawsuit demanding that Ferreiro record Virginia’s ratification and allow the ERA to be added to the Constitution.
— Equal Means Equal and other plaintiffs supporting the ERA filed a lawsuit contending the deadline set by Congress is immaterial, while real harm is being suffered by women left unprotected by a constitutional guarantee of equal rights under the law.
— The Democratic-controlled U.S. House of Representatives voted in February to abolish the deadline, specifically to authorize the federal archivist to record Virginia’s ratification. In the Republican-controlled U.S. Senate, 48 members of the 100-member body, led by Sen. Ben Cardin, D-Maryland, are trying to pass the same measure, according congressional records.
Battle in Boston
On April 14, federal authorities filed a motion urging Judge Casper to dismiss the lawsuit filed by Equal Means Equal and its co-plaintiffs.
In the motion to dismiss, Ferriero, the federal archivist, contends that “the political branches,” not he nor the courts, should sort out the rules enabling voters to amend their Constitution.
His motion says: “Plaintiffs [Equal Means Equal and its co-plaintiffs] ask this court to declare that a deadline established by a supermajority of Congress for the ratification of a constitutional amendment is invalid, and to mandate that the archivist certify the amendment as valid notwithstanding that deadline and the objection of states that have sought to rescind their prior authorizations. But these two issues are best left to the political branches to resolve.”
The motion does not address why the deadline should cause Virginia’s ratification documents to be rejected, while the post-deadline ratifications by Illinois and Nevada were received and recorded with little fanfare. It simply cites the Department of Justice directive and explains that the federal archivist has no authority to overrule the DOJ.
Motions by Equal Means Equal argue that states voted on the amendment itself, not on the deadline, and were free to ratify it at their own chosen pace.
The organization notes that previous amendments have had deadlines attached and others have not, leaving a question for the U.S. Supreme Court as to whether deadlines apply to voters’ rights to amend their Constitution.
The organization notes that the nation’s newest constitutional amendment, the 27th, adopted in 1992, was 203 years in the making. (That one says: “No law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened.”)
It also notes the U.S. House action in February to abolish the deadline.
Congress and the states
The state of Virginia became the celebrated 38th state to ratify after Democrats flipped both the House and the Senate there in elections last fall. For the first time in that state’s history, a woman is the Speaker of the House of Delegates.
Attorneys general in Virginia, Illinois, and Nevada — the last three states to ratify the ERA — are fighting in court to set aside the deadline in order to have their votes bring about implementation of the ERA.
Pro-ERA attorneys in California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, and Washington called on the House and Senate in a Feb. 11 letter to pass legislation abolishing the deadline and allowing the ERA to be implemented. The House did so. The Senate has not.
Anti-ERA attorneys general in Alabama, Louisiana, Nebraska, South Dakota, and Tennessee insist in court that the deadline was valid and has expired. The five states that voted to rescind ratification passed in the 1970s are Idaho, Kentucky, Nebraska, South Dakota, and Tennessee.
In, Florida, Kim Porteous, president of the state chapter of the National Organization for Women, said the Trump administration’s opposition to the ERA is especially egregious during this pandemic, when women are so prominently on the front lines of health care and education.
“Women are carrying the load of this coronavirus war, in the hospitals, in the grocery stores, in the new home classrooms, and nurturing of our families and our relationships. Yet we still have women who make significantly less than their male counterparts,” Porteous said.
“We are not backing down. We will not forget how our sisters carried our nation through this crisis on their backs. Anything less than equality will not be tolerated.”
Porteous said pro-ERA and other pro-woman forces are mobilizing in the midst of the pandemic to support voting rights and defeat Trump in the fall presidential elections.
She and other pro-ERA activists insist the ERA is long overdue and even more relevant in the age of #MeToo and continued wage inequality than it was in the early 1970s, when Republicans and Democrats alike resolved that equal rights for women should be enshrined in the Constitution.
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