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Equal Rights Amendment Denied Supreme Court Hearing for Now (1)

Oct. 13, 2020, 1:39 PM; Updated: Oct. 13, 2020, 4:17 PM

Equal Rights Amendment supporters won’t get an immediate hearing at the U.S. Supreme Court as they fight to ensure the nearly 50-year-old proposition is added to the U.S. Constitution.

The high court on Tuesday denied an unusual direct Supreme Court petition, which would have leapfrogged a U.S. appeals court, after a federal trial court in Boston dismissed their lawsuit for lack of standing.

“The petition for a writ of certiorari before judgment is denied,” the justices said.

The case is one of the two pending in federal courts over the ERA’s drawn out, and therefore disputed, ratification. ERA supporters had argued immediate Supreme Court action was appropriate “because the ERA is the most important and fundamental of all women’s rights, but also because everyone in America has a right and need to know whether it is now the Twenty-Eighth Amendment to the Constitution.”

The plaintiffs in the Boston case also have an appeal pending at the U.S. Court of Appeals for the First Circuit.

The language of the ERA states: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” It gives Congress authority to pass laws enforcing it and says it takes effect two years after ratification.

Supporters of the amendment say its enforcement would affect a broad range of state and federal laws that impact women’s treatment in areas of employment, health care, and other policies.

Opponents such as Alabama Attorney General Steve Marshall (R), who intervened in a Washington federal court case to prevent a finding of ratification, have argued the amendment isn’t needed because other federal laws bar sex-based discrimination. He contends the measure would generate new litigation over previously upheld state laws including restrictions on abortion.

Virginia’s legislature voted to ratify the ERA in January, giving the amendment the necessary approval by three-fourths of states, but that approval came 40 years after a 1979 congressional deadline.

The women’s advocacy groups Equal Means Equal and The Yellow Roses, along with an individual woman, Katherine Weitbrecht, sued U.S. Archivist David Ferriero in January to force him to add the ERA to the Constitution and asked the court to find the congressional deadline to be invalid.

Ferriero has refused, relying on a U.S. Department of Justice legal opinion that the deadline is valid and enforceable.

“Now we focus on the First Circuit where they have the power not only to consider the standing question but also to rule on the merits and order the Archivist to publish the ERA and declare women equal citizens, subject to fully equal protection of the law,” said Boston attorney Wendy J. Murphy, who represents the advocacy groups.

“Standing doctrine is notoriously political in the sense that it is often applied arbitrarily to silence certain voices while elevating others,” Murphy said, noting men’s rights groups were recently allowed to move forward in suing over a law that prevents women from registering for the military draft. “We will emphasize to the court the importance of listening to women’s voices, especially on something as important as equal protection of law under the Fourteenth Amendment.”

Ferriero, represented by U.S. Acting Solicitor General Jeffrey B. Wall, waived his right to respond to the advocacy groups’ petition for Supreme Court review. Representatives for the Justice Department and solicitor general’s office didn’t immediately respond to requests for comment on this article.

The Boston court’s August decision didn’t address the deadline’s validity, but simply found the plaintiffs didn’t satisfy the legal requirements for bringing the case. The second case, pending at the U.S. District Court for the District of Columbia, was brought by state attorneys general including Virginia AG Mark Herring (D), whose legal standing to sue might be viewed differently.

Two Cases Pending

As the appeal in the Boston case moves ahead, the D.C. case is awaiting a decision on a motion to dismiss and motion for summary judgment. The attorneys general of Nevada, Illinois, and Virginia filed the lawsuit, after their states became the final three states to ratify the ERA—in 2017, 2018, and 2020, respectively.

The two cases have drawn wide interest in the form of amicus briefs from women’s groups, law professors, labor unions, state officials, major U.S. businesses and religious groups.

Bloomberg LP, the corporate parent of Bloomberg Law, was one of the corporations that signed onto an amicus brief supporting ERA ratification in the D.C. court.

In their Supreme Court petition, the advocacy groups disputed the Boston judge’s finding that their case against Ferriero couldn’t proceed partly because his actions weren’t responsible for causing the inequality or discrimination that women face. The groups also argue the ERA is legally valid now, but Ferriero’s refusal to carry out his “ministerial” function of publishing it has hurt the public perception of the amendment being valid.

Murphy contends Article V of the Constitution, which lays out the process for constitutional amendments, doesn’t give Congress authority to impose deadlines for states to ratify proposed amendments.

Opposing ratification, Department of Justice attorneys have argued Congress has repeatedly imposed deadlines and that they help ensure “an orderly and contemporaneous process,” rather than a prolonged ratification period in which understanding of the language and cultural issues might change.

As a second point of contention in the ERA lawsuits, five of the 35 states that originally ratified the amendment before the 1979 deadline later took action to rescind their approval. The ERA supporters suing Ferriero say states have no authority to rescind ratifications after their initial approval.

The Supreme Court case is Equal Means Equal v. Ferriero, U.S., No. 20-318, cert. denied 10/13/20.

(Updated to add comments from the ERA supporters' attorney.)

To contact the reporter on this story: Chris Marr in Atlanta at cmarr@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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