Equal Rights Amendment Backers Defeated in D.C. Court Appeal (2)

Federal courts can’t order that the Equal Rights Amendment be published as part of the Constitution because its backers failed to prove indisputably that a congressional deadline set for states to ratify it isn’t legally valid or binding, a D.C. federal appeals court ruled.

The Tuesday decision is a big loss for ERA supporters, including the state attorneys general of Illinois and Nevada, who sued the US archivist to demand publication of the measure as the 28th Amendment.

The states failed to show why the 1979 deadline that Congress set for three-fourths of states to ratify the amendment should be disregarded, according to a three-judge panel led by Judge Robert L. Wilkins of the US Court of Appeals for the District of Columbia. Judges J. Michelle Childs and Neomi Rao joined him on the panel.

The Tuesday ruling came just as the US Senate Judiciary Committee was beginning a hearing to consider a congressional resolution aimed at validating the ERA. The amendment would create an explicit constitutional ban on discrimination under the law based on sex, potentially affecting issues ranging from pay equity and pregnancy discrimination to violence against women and abortion.

The state AGs had asked a lower court for a mandamus action, a type of court order that requires getting over a high hurdle of “clear and indisputable” proof, in this case, that the archivist had a legal duty to publish the ERA because it had been fully ratified. The D.C. Circuit court found the states fell short, since a pair of prior Supreme Court cases provide at least some support for Congress’ power to set time limits on the ratification of constitutional amendments, although Article V of the Constitution doesn’t say explicitly whether Congress can set such deadlines.

“The Court’s statements in those two cases fatally undermine the contention that it is ‘clear and indisputable’ that Congress lacks the authority to set deadlines for ratification, including the seven-year deadline in the ERA,” the D.C. Circuit panel wrote.

Staff members in the Nevada AG’s office “are currently determining what our next steps may be” in the litigation, spokesman John Sadler said in an emailed statement Tuesday.

The attorney general’s offices in Illinois didn’t immediately respond to a request for comment. The Justice Department, which represented the archivist in the case, also didn’t immediately respond.

Linda Coberly, who chairs the ERA Coalition’s legal task force, said the D.C. Circuit decision only found the AGs lacked a clear and indisputable right to relief because the ratification deadline’s validity remains disputed.

“It does not resolve whether the time limit is effective or enforceable. What it does is kick the issue back to Congress,” said Coberly, who’s also an attorney at Winston & Strawn LLP in Chicago. The decision “leaves Congress with the ability to act to remove the time limit and recognize the amendment as valid. That’s what the hearing was about this morning in the Senate Judiciary Committee.”

Lower Court Upheld

The appeals court upheld the D.C. district court’s decision from March 2021, which dismissed the states’ suit for lack of jurisdiction to resolve the controversy.

The Democratic attorneys general of Illinois and Nevada argue the deadline is neither valid nor legally binding, and that the ERA achieved ratification by three-fourths of states when the Virginia legislature voted to approve it in January 2020. Nevada and Illinois lawmakers had voted to ratify it in 2017 and 2018, respectively, adding to the 35 states that did so before the 1979 deadline. The federal district court in its 2021 decision said the deadline is valid and those final three state votes came four decades too late.

Republican AGs from Alabama, Louisiana, Nebraska, South Dakota, and Tennessee intervened in the D.C. case to oppose publishing the ERA, arguing that the 1979 deadline means the amendment process must start over if it’s going to be added to the Constitution.

“We are glad the court rejected plaintiffs’ calls to unconstitutionally amend our Constitution,” Alabama Attorney General Steve Marshall (R) said in a written statement Tuesday. “If activists want a new ERA, they should persuade their fellow Americans that it makes sense, then pass it through Congress and a new state ratification process.”

The D.C. Circuit court left undecided a separate question about the ERA’s ratification—the issue of five of the original 35 ratifying states having taken action to rescind their ratifications. ERA watchers and legal scholars disagree over whether the constitutional amendment process allows states to rescind their votes and whether those five states should be counted toward the 38 needed.

The previous archivist, David Ferriero, declined to publish the amendment before retiring in April 2022, based on a 2020 legal opinion from the Justice Department’s Office of Legal Counsel that found the deadline to be valid and the amendment’s ratification window to be long-ago expired.

President Joe Biden’s pick for the next archivist, Colleen Shogan, told senators in a September confirmation hearing that she likewise would wait for action from Congress or the courts. Shogan made a similar comment Tuesday in a second Senate confirmation hearing, saying the archivist’s role in constitutional amendments is “ministerial.” Her nomination didn’t make it to the Senate floor before the end of the last Congress, and Republicans requested a second hearing.

“The archivist publishes an amendment when it is part of the Constitution,” Shogan told the committee Tuesday. They are “not the decider.”

The case is Illinois v. Ferriero, D.C. Cir., No. 21-05096, 2/28/23