Attorneys General Appeal ERA Lawsuit, Press Biden Administration to Recognize the 28th Amendment

“How much longer should the women in this country wait to be afforded equal protection under this country’s founding documents?”

—Nevada Attorney General Aaron Ford

Attorneys General Appeal ERA Lawsuit, Press Biden Administration to Recognize the 28th Amendment
equal-rights-amendment-attorneys-general-virginia-illinois-nevada-appeal-era-lawsuit-biden-administration-28th-amendment
Left to right: Attorneys General Aaron Ford of Nevada, Kwame Raoul of Illinois, and Mark Herring of Virginia are seeking review of a recent lower court decision that dismissed their case to enforce ratification of the Equal Rights Amendment. (Twitter and Creative Commons)

On Monday, May 3, attorneys general from Virginia, Illinois and Nevada filed an appeal with a D.C. Circuit Court of Appeals seeking a declaration that the Equal Rights Amendment is now part of the U.S. Constitution. The Trump administration blocked recognition of the amendment last year after Virginia became the 38th and final state required to ratify the ERA.

Attorneys General Aaron Ford of Nevada, Kwame Raoul of Illinois, and Mark Herring of Virginia—from the 36th, 37th and 38th states respectively to ratify the ERA—are seeking review of a recent lower court decision in March that dismissed their case to enforce ratification of the ERA, Virginia, et al v Ferriero.

“The United States cannot continue forcing women to wait to be recognized as equal under this country’s founding document,” said Virginia Attorney General Herring. “To those who have sent a clear message that they do not believe in women’s equality—it’s time that you move into the 21st century.”

At issue in the case is whether a time line in the preamble to the text of the ERA passed in 1972 can block recognition of the fully ratified amendment today. In January 2020, Donald Trump’s attorney general, William Barr, wrote a 38-page legal opinion arguing that the time line for ratification expired in 1979, so recent ratifications were invalid.

“Our efforts to close the gap between gender equality in the Constitution have been met with many roadblocks, including those from the Trump administration and Republican attorneys general, who have made it clear that they do not believe women should be guaranteed equal rights in this country,” said Nevada Attorney General Aaron Ford. “How much longer should the women in this country wait to be afforded equal protection under this country’s founding documents?”

The three AGs argue that the 1979 time line is invalid and that the executive branch (including Barr) has no role in the ratification of an amendment. Their suit demands that the federal archivist add the Equal Rights Amendment to the Constitution as ratified by the required 38 states.

“It is unacceptable there is any discussion about whether equal rights for all are protected under the Constitution, especially since the Equal Rights Amendment has been ratified in accordance with the Constitution,” Illinois Attorney General Kwame Raoul said. “It is past time that women across the country have the constitutional equality that they deserve and are entitled to, which is why I am committed to fighting to ensure that the Equal Rights Amendment is recognized as the 28th Amendment to the Constitution.”

Time for the Biden Administration To Act

Supporters of the ERA applauded the AGs’ decision to appeal the lower court’s decision and called on the Biden administration to withdraw Barr’s opinion and direct the archivist to certify the amendment.

“This appeal is an important step in the fight for recognition of the Equal Rights Amendment. It maintains pressure on the Department of Justice to reassess the position it took on the ERA during the last administration. The archivist has held off on complying with his duty to publish the ERA because of a 2020 opinion by the Office of Legal Counsel (OLC). That opinion conflicts with a prior OLC opinion and waded into territory that should be left to Congress. It should be withdrawn immediately,” said Linda Coberly, chair of the ERA Coalition’s Legal Taskforce.


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Congress is currently considering legislation to remove the timeline. On March 17, the U.S. House passed by a vote of 222-204 H.J. Res 17a bipartisan joint resolution introduced by Rep. Jackie Speier (D-Calif.) to remove the arbitrary time line for ERA ratification. Senators Ben Cardin (D-Md.) and Lisa Murkowski (R-Alaska) have introduced an identical resolution S.J. Res. 1 in the Senate, but the legislation is held up because of the filibuster.

Attorneys General Appeal ERA Lawsuit, Press Biden Administration to Recognize the 28th Amendment
equal-rights-amendment-attorneys-general-virginia-illinois-nevada-appeal-era-lawsuit-biden-administration-28th-amendment
Members of the House Democratic Women’s Caucus gather on the Capitol steps after voting to remove the arbitrary deadline on ERA. (Ike Hayman)

“Equality is and should be for both men and women. I, along Virginia AG Mark Herring and Illinois AG Kwame Raoul, will continue to fight for equal rights and will not stop until these rights are permanently written into our nation’s history. I welcome any support from both the Biden Administration and Congress in ensuring that this amendment is recognized as part of the Constitution once and for all,” AG Ford said.

After the House passed the ERA resolution, President Joe Biden expressed his long-time support for the ERA and applauded the resolution. “When Congress first sent the Equal Rights Amendment to the states for ratification, I was a 29-year-old first-time Senate candidate. As a young senator, as now, it was a simple proposition for me—fighting for the ERA was about fighting for the dignity of women, and for the dignity of our nation. Nearly 50 years later, it is long past time that we enshrine the principle of gender equality in our Constitution.”

Despite the president’s stated support for the ERA, his administration has yet to withdrawn the Barr memo and direct the archivist to recognize the ERA.

“It’s just a matter of time before the new appointees at the Justice Department revisit [former Attorney General Barr’s OLC] opinion. The litigation continuing is going to make it necessary for the Department of Justice to take a look at that,” Coberly told Ms.

DOJ could withdraw the Barr opinion and/or issue a new opinion supporting the validity of the ERA ratification process. In either case, the archivist could then certify the ratification, even absent congressional action.

“Most advocates agree it would be best to have a ‘belt and suspenders’ approach: that it would be best to have both litigation and legislation, and to get Congress to act. Because if Congress acts, then you can defend that action under what’s called the political question doctrine and say that that is an issue for Congress and the courts shouldn’t get involved in it at all. I think that’s a strong legal argument based on precedent,” Coberly told Ms.

Advocates are supporting both the AGs’ lawsuit and passage of the ERA resolution in the Senate. “As the attorneys general pursue their case, we will continue to ask the U.S. Senate to bring SJ Res 1, removal of the time limit on the ERA, to a vote. And we will be insistent in our call for equal rights for all. 2021 is the year for equality,” said Carol Jenkins, president and CEO of the ERA Coalition/Fund for Women’s Equality.

Take Action on the Equal Rights Amendment

To take action now in support of the ERA, head over to erayes2021.org where you can directly contact your U.S. legislators, share your ERA story, and find an ERA Toolkit with ready-to-post social media images and other advocacy resources.

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About

Carrie N. Baker, J.D., Ph.D., is a professor in the program for the study of women and gender at Smith College and a contributing editor at Ms. magazine. Her 2007 book The Women's Movement Against Sexual Harassment won the National Women’s Studies Association Sara A. Whaley Book Prize. Her second book, Fighting the U.S. Youth Sex Trade: Gender, Race, and Politics, tells the story of activism against youth involvement in the sex trade in the United States between 1970 and 2015. You can contact Dr. Baker at cbaker@msmagazine.com.