The Equal Rights Amendment should be fully ratified as soon as one more state—likely Virginia—approves it, ERA advocates argued in a federal lawsuit filed Jan. 7.
The lawsuit from the group Equal Means Equal seeks to void a 1979 deadline that Congress set for states to ratify the amendment.
If successful, the ERA would become the 28th amendment to the U.S. Constitution and provide a broad guarantee of equal rights under the law regardless of sex, potentially strengthening anti-bias protections for women. Opponents—including a handful of state attorneys general who recently sued to block the ERA—argue the amendment is unnecessary and would be used to more strictly scrutinize existing laws such as abortion restrictions.
When the 1979 deadline passed, only 35 of the 38 states needed had voted to ratify the amendment, but votes by Nevada in 2017 and Illinois in 2018 brought the count to 37. The Virginia General Assembly, with a newly elected Democratic majority, is expected to become the 38th legislature to approve the ERA soon after its session convenes Jan. 8.
Women’s rights advocates say Congress assumed too much authority over the constitutional amendment process by setting a deadline, whereas the authors of the Constitution divided the power to amend between Congress and the states.
The litigation strategy aims to focus on “the critical role of the courts” in deciding a unique legal question, said Wendy Murphy, an attorney and law professor from Boston who serves as legal counsel for Equal Means Equal.
“A lot of the advocacy groups have been spending resources lobbying Congress to remove the deadline, and there obviously are concerns I have about that strategy given that we knew this issue was going to land in the courts,” she said by phone in December as the lawsuit was being prepared.
The amendment was written to take effect two years after ratification to “give state and federal officials time to examine and repair laws, regulations, and policies, to remove all sex discriminatory features,” according to the lawsuit. “Plaintiffs have an interest in ensuring that state officials begin taking these steps when Virginia ratifies.”
Republican AGs Sue
The lawsuit is a counterpoint to a complaint filed in federal court in Alabama on Dec. 16.
In that case, state attorneys general from Alabama, Louisiana, and South Dakota argued that state votes to ratify the ERA aren’t legitimate because the deadline has long passed. In addition, the three Republican attorneys general argued that five of the original 35 ratifying states withdrew their ratifications and that the U.S. archivist who oversees the amendment process is illegally continuing to recognize state ratifications despite the withdrawals and the deadline.
It’s likely that more lawsuits will be filed before the issue is resolved, Murphy said.
The U.S. archivist doesn’t plan to make a decision on ratifying the ERA before Feb. 15 at the earliest and until his office receives legal guidance it has requested from the U.S. Department of Justice’s Office of Legal Counsel, according to a Dec. 19 statement from the National Archives and Records Administration.
Push for Congressional Extension
A separate effort by ERA supporters seeks a vote by Congress to extend the ratification deadline—an effort that could face hurdles in a Republican-majority Senate.
Beyond the political hurdles, lawyers offered competing theories to a House committee last spring on whether Congress has the constitutional authority to extend its deadline or whether the only real option for the ERA is to start over from scratch.
A congressionally imposed deadline for ratification “signals to States that time is of the essence, that they had better act within the specified period if they wish to assent to the proposed amendment,” Elizabeth P. Foley, a professor at Florida International University’s College of Law, told the House Judiciary Committee in April 2019. “If Congress, through the ordinary, majoritarian legislative process, attempts to extend a ratification deadline, the extension should be of no legal effect.”
Kathleen Sullivan, an attorney at Quinn Emanuel Urquhart & Sullivan LLP, took the opposite position in testifying at the same House committee hearing, saying Congress can extend or erase its previous deadline and allow the ERA to take effect.
“The 1972 or 1979 Congress has no constitutional authority to bind later Congresses to their decisions that the deadline for ratification would elapse,” she told the committee.
The case is Equal Means Equal v. Ferriero, Mass. Dist. Ct., No. 1:20-cv-10015, Complaint filed 1/7/20.