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DOJ Says Virginia’s Push for Equal Rights Amendment Futile (1)

Jan. 8, 2020, 6:59 PMUpdated: Jan. 8, 2020, 10:20 PM

The Virginia General Assembly’s new Democratic leadership has opened the legislature’s session with a pledge to adopt the Equal Rights Amendment. But a U.S. Justice Department official says in a newly released legal opinion that those efforts are in vain, as a 1979 ratification deadline set by the U.S. Congress has passed.

The ERA resolution “has expired and is no longer pending before the States,” according to Steven A. Engel, assistant attorney general with the Office of Legal Council. That deadline is binding and Congress has to restart the process, Engel said in the memo.

Engel’s legal guidance was issued as Virginia appears to be poised to ratify the amendment. The commonwealth would become the 38th state to approve the ERA, which aims to set a broad guarantee of equal rights under the law, regardless of sex.

Supporters are pinning their hopes on the General Assembly, which convened its session with a new Democratic majority Jan. 8. Gov. Ralph Northam (D) and legislative leaders have made passing the amendment a priority in 2020.

Dueling lawsuits over the issue are pending in federal court.

Equal Means Equal, a group that supports adoption of the ERA, filed a lawsuit Jan. 7, asking a federal court to void the 1979 deadline. And last month state attorneys general from Alabama, Louisiana, and South Dakota filed their own lawsuit, arguing that state votes to ratify the ERA aren’t legitimate because the ratification deadline has long passed.

The Justice Department’s recent position “stands in odd contrast to the administration’s proper recording of the ratifications of Nevada and Illinois, respectively, in 2017 and 2018,” said Wendy Murphy, an attorney and law professor from Boston who serves as legal counsel for Equal Means Equal. “This development makes our lawsuit even more urgent,” as a court ruling is needed, she said.

Alabama’s Attorney General Steve Marshall (R), who is leading the opposition’s lawsuit, said the federal agency’s stance reaffirms the position taken by Alabama, Louisiana, and South Dakota. “Today’s DOJ opinion recounts how Congress has often included deadlines for ratification of constitutional amendments to ensure that any change to our foundational document reflects the will of the people across the country ‘at relatively the same period’,” Marshall said in a Jan. 8 statement.

—With assistance from Chris Marr in Atlanta

(Revised to add Alabama AG's comments in the 8th paragraph.)

To contact the reporter on this story: Andrew M. Ballard in Raleigh, N.C. at aballard@bloomberglaw.com

To contact the editors responsible for this story: Terence Hyland at thyland@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com