Supporters of the ERA push for publication despite lingering legal questions

By Veronica Stracqualursi, CNN

Backers of the Equal Rights Amendment are pressuring the Biden administration and the US archivist to publish the amendment, arguing that the ERA should be taking effect on Thursday.

Believing that the ERA has satisfied all the necessary constitutional requirements, supporters are demanding that US Archivist David Ferriero, who’s set to retire in April, publish the ERA as the 28th Amendment to the Constitution as part of his ministerial duties. Ferriero has not publicly indicated that he plans to publish the amendment, and the National Archives referred CNN to the Department of Justice for comment.

Two years ago Thursday, Virginia ratified the ERA, becoming the 38th state to do so and, in supporters’ eyes, clinching the necessary benchmark for addition to the US Constitution nearly a half-century after the amendment began making its way through state legislatures. But the necessary threshold was not reached by a 1982 deadline and five of the states rescinded their support of the ERA, opening significant legal questions.

Supporters say the law is necessary to enshrine equal rights for women in the Constitution, though opponents argue many such protections are already in place across the nation and that publishing the ERA now would ignore prior federal court decisions.

“The fact that we have declared, because it is true, that the ERA has met all requirements, it is law. The certification is a symbol but we deserve that symbol,” Ellie Smeal, who leads The Feminist Majority, said Thursday during a virtual press call held by the ERA Coalition, its partners and allies in Congress. “We think that he should certify and publish it now. Let the opposition appeal, and yes it will go to the courts, but basically we know that this thing has passed.”

On Thursday, the ERA Coalition, National Organization for Women, Women’s March and other groups rallied at the White House and then marched to the Department of Justice.

They planned to deliver petitions calling on Attorney General Merrick Garland to rescind a Department of Justice Office of Legal Counsel (OLC) opinion, issued under the Trump administration in 2020, that said the deadline to ratify the ERA expired and that the archivist can not certify it, arguing the memo is “flawed” and “erroneous.”

When the memo was issued in 2020, the National Archives and Records Administration said at the time that it “will abide by the OLC opinion, unless otherwise directed by a final court order.”

The OLC released a new memo Wednesday night, saying that its 2020 memo is “not an obstacle either to Congress’s ability to act with respect to ratification of the ERA or to judicial consideration of questions regarding the constitutional status of the ERA.”

According to The ERA Project at Columbia Law School, the new OLC memo does not withdraw its 2020 memo nor does it instruct the archivist to publish the ERA, but suggests that the issue is properly before the federal courts and Congress.

Linda Coberly, the chair of the ERA Coalition Legal Task Force, said Thursday that “archivist could go ahead and certify today and we need to continue the pressure to go ahead and do that.”

“Whether the archivist certifies or not that doesn’t prevent us from arguing and asserting in court … that the ERA is valid and in the Constitution today,” she said during Thursday’s press call.

Douglas Johnson, the senior policy adviser for National Right to Life, which opposes the ERA, told CNN, “It’s extraordinary to see members of Congress and attorneys openly urging defiance of the rule of law” in pushing the archivist to publish the ERA.

He told CNN that the memo means that the “official position of the federal Executive Branch remains unchanged: the ERA is dead.”

“For the Justice Department to take note that Congress is a coequal branch and is free to disagree, or that the courts will have the last word, simply states the obvious,” he added.

Democrats keep up pressure

Democratic Reps. Jackie Speier of California and Carolyn Maloney of New York, two longtime proponents of the ERA, introduced a House resolution on Thursday affirming the ERA’s validity. Both lawmakers have also been insistent that the archivist could publish the ERA.

“Until the ERA is officially ratified, we won’t be able to get rid of the gender wage gap, pregnancy discrimination, and persistent and insidious violations of the rights of survivors, to name a few of the gross injustices women face daily,” Speier said in a statement.

President Joe Biden on Thursday reiterated his support for the ERA and called on Congress to “act immediately” to pass the House resolution “recognizing ratification of the ERA.”

“I have been a strong supporter of the ERA ever since I first ran for the Senate as a 29-year-old. We must recognize the clear will of the American people and definitively enshrine the principle of gender equality in the Constitution,” he said in a statement. “It is long past time that we put all doubt to rest.”

Last March, the House passed a joint resolution that would remove a deadline for states to ratify the ERA, but it faces a tougher path to being passed in a 50-50 Senate.

Democratic Sen. Ben Cardin of Maryland announced Thursday that all of his fellow Democratic senators had signed on as co-sponsors to the Senate resolution to remove the deadline. Republican Sens. Lisa Murkowski of Alaska and Susan Collins of Maine are the only two Republicans co-sponsoring the resolution. The resolution still needs to get to 60 votes to overcome any potential Senate filibuster.

National Right to Life has argued that the resolutions are unconstitutional and that Congress cannot retroactively change an imposed deadline decades after it expired.

A lengthy legal fight

As laid out in the Constitution, constitutional amendments become valid once they’re ratified by three-fourths of the states — or 38 states. In 1972, Congress passed the ERA, which stated, “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 included a seven-year deadline for states to ratify the ERA, later extending the deadline to 1982. But by then, only 35 states had signed off on the ERA — and five of those states rescinded their support of the ERA within that time.

In recent years, Virginia, Illinois and Nevada approved the ERA, with Virginia claiming to be the 38th — and thus clinching — state to ratify the amendment in 2020.

Opponents of the ERA say those three states’ ratifications are not valid and also point to the five states’ rescissions as part of why the ERA is not ratified. Advocates say the deadline had not lapsed since it was not included in the ERA’s body text and argue that states cannot rescind amendment ratifications.

In 2020, Virginia, Illinois and Nevada sued the US archivist to “carry out his statutory duty” of publishing and certifying the ERA.

A federal district judge dismissed the case, saying that the plaintiffs “lack standing to sue,” and wrote in his opinion that the deadline to ratify the ERA “expired long ago.”

The court, however, did not weigh in on whether states can validly rescind ratifications nor whether Congress’ extension of the ERA’s ratification deadline was constitutional.

Virginia, led by then-Democratic Attorney General Mark Herring, appealed the court’s decision and the case is pending in the DC Circuit. It remains to be seen whether the commonwealth, under new Republican Gov. Glenn Youngkin, will remain a plaintiff in the case.

A similar case in Massachusetts filed by the group Equal Means Equal was dismissed by a lower court and an appeals court.

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