It’s January 2022—almost 100 years since the Equal Rights Amendment (ERA) was first proposed by Alice Paul and introduced in Congress. And with the start of the new year, legal wrangling for the proposed 28th Amendment to the Constitution is ramping back up.
Democratic Attorneys General Aaron Ford of Nevada, Kwame Raoul of Illinois, and Mark Herring of Virginia—the last three states to ratify the ERA—filed a formal appeal with a D.C. Circuit Court of Appeals in May last year attempting to force the U.S. archivist David S. Ferriero to publish the ERA to the Constitution. The suit seeks review of a lower court decision in March 2021 that dismissed the original January 2020 case filed by the Democratic AGs—as “laudable as their motives may be,” wrote the district court judge.
On January 3, AGs Ford, Raoul and Herring filed opening briefs in the case aiming to reverse the lower court’s decision. Such a reversal of the dismissal, they argue, will vindicate their states’ “sovereign prerogative to ratify amendments that bring our foundational document in line with our Nation’s values.”
“The ERA has been properly ratified by the states and any attempt to prevent its inclusion in the Constitution is without basis in law,” said Virginia AG Herring. “The Equal Rights Amendment will finally ensure true equality in our nation’s foundational document and correct an injustice of historic proportions.”
On Monday, the ERA Coalition and other equality and women’s rights advocacy groups filed an amicus brief offering formal support for the appeal. Prepared by Linda Coberly, managing partner and chair of the appellate and critical motions practice of Winston & Strawn LLP who serves as chair of the ERA Coalition’s Legal Task Force, the brief argues for formal recognition of the ERA.
The amicus brief argues that “Congress lacks authority to impose a timeline for ratification in this manner.” The U.S. House of Representatives clearly agrees with this assessment: In March of last year, by a vote of 222-204, it passed H.J. Res 17, a bipartisan joint resolution introduced by Rep. Jackie Speier (D-Calif.) to remove an arbitrary timeline for ERA ratification. Senators Ben Cardin (D-Md.) and Lisa Murkowski (R-Alaska) have introduced an identical resolution in the Senate—but it faces a steep climb due to the filibuster, which enforces a 60-vote threshold before any legislation can be called for a vote.
“We are one Senate floor vote away from adding the ERA into the Constitution so that our generation and all future generations will not face persistent sex discrimination, but rather will have new opportunities under the law,” said Ellie Smeal, president of the Feminist Majority Foundation and long-time ERA leader.
When Virginia became the 38th state to ratify the ERA in 2020, it fulfilled all constitutional requirements set forth in Article V, the suit argues. Yet the archivist has not yet published it, quoting a Trump-era memo from the Department of Justice’s Office of Legal Counsel (OLC) that cites a deadline set by Congress that is both arbitrary and exists in the preamble of the resolution, rather than in the text of the amendment itself.
“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,” Coberly told The 19th.
“We need to remedy the systemic causes of sex inequality in this country, and you don’t get more systemic than the Constitution. This is where it all begins, and the Equal Rights Amendment can help end it,” said Carol Jenkins, president and CEO of the ERA Coalition. “There is no time limit on equality.”