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Equal Rights Amendment Litigation Likely to Ramp Up in New Year

Dec. 28, 2021, 10:45 AM

January is likely to bring a new wave of legal wrangling over the Equal Rights Amendment, prompted by the two-year anniversary of Virginia’s vote to approve the amendment, which arguably gave it the 38 states needed for ratification.

ERA supporters say it is indeed part of the Constitution—its 28th Amendment—despite a lack of official recognition, since it has satisfied the Constitution’s Article V requirements for amending the document. The amendment’s ban on sex-based discrimination under the law takes effect two years after ratification, per the language of the ERA. Supporters say that’s Jan. 27, two years after the Virginia legislature voted to ratify.

Viewing the amendment as ripe for enforcement, its supporters are preparing to file lawsuits that challenge various local, state, and federal policies as unconstitutional because of their unequal treatment of people on the basis of sex.

“One thing that litigation will explore and demonstrate is the kind of protections that the ERA will provide,” said Linda Coberly, attorney at Winston & Strawn LLP in Chicago and chair of the ERA Coalition’s legal task force.

But that lack of official recognition by the archivist of the United States David Ferriero, or a court ruling compelling him to do so, continues to be a thorn for those who contend ERA’s a done deal.

The coming lawsuits will provide them with yet another avenue to seek a court’s affirmance that the measure has been ratified—a goal ERA supporters have found elusive so far in a pair of lawsuits pending in federal appeals courts in Boston and D.C.

At the same time, ERA opponents are likely to seek a court order blocking enforcement of the amendment nationwide, possibly in the U.S. Court of Appeals for the District of Columbia Circuit, predicted Wendy Murphy, a Boston attorney representing the pro-ERA group Equal Means Equal and others in the case pending at the First Circuit.

Spokespeople for the five state attorneys general who are actively opposing the recognition of ratification in the D.C. Circuit case, from Alabama, Louisiana, Nebraska, South Dakota, and Tennessee, either declined to comment or didn’t respond to an inquiry about their legal strategies.

U.S. Rep. Jackie Speier (D-CA) wears a button supporting passage of the Equal Rights Amendment as she waits to speak during a news conference prior to State of the Union at the U.S. Capitol on Feb. 4, 2020.
Alex Edelman/Getty Images

Ratified or Not?

At the core of the dispute is the question of whether the ERA has been ratified or whether the 1979 deadline that Congress initially set for states to ratify it is valid and legally binding.

The final three state approvals came from Illinois, Nevada, and Virginia roughly four decades after that deadline, but ERA supporters say the Constitution doesn’t give Congress authority to set a deadline on ratification.

A 2020 legal memo from the Justice Department’s Office of Legal Counsel under then-President Donald Trump found the deadline is valid and thus the ERA’s only path to ratification is to start over in Congress and then the states. Ferriero, whose job includes publishing new amendments, has declined to publish this one based on that legal memo, unless a final court order instructs him otherwise.

The pending litigation also questions the validity of five states’ efforts to rescind their ratification votes after their legislatures initially approved the amendment.

Still, equal rights supporters are likely to file suits on or after Jan. 27 that challenge local, state, or federal government agencies whose policies are seen as imposing sex-based discrimination, Coberly said.

Backers previously touted the amendment as a way to bolster legal protections for women related to pregnancy discrimination, pay equity, violence against women, and reproductive rights, among other areas of law.

Opponents, including Alabama Attorney General Steve Marshall (R), have raised concerns that the ERA’s ratification would prompt a wave of lawsuits re-litigating state laws such as abortion restrictions that courts have upheld as constitutional.

Full-Court Press

The new cases will add to efforts of ERA supporters to gain recognition of the amendment, Coberly said.

Those efforts include those existing suits pending in Boston and D.C., advocacy campaigns pressuring President Joe Biden to order the archivist to publish the amendment, and resolutions pending in Congress to remove the ratification deadline, such as one that passed the House in March.

“There’s no question that the validity of the Equal Rights Amendment will ultimately be resolved by a court,” Coberly said. “That could happen soon in the D.C. Circuit, or it could happen years from now in litigation that advocates bring to enforce the provisions that advocates already believe are a part of our Constitution.”

Federal district courts in Boston and D.C. dismissed the existing lawsuits for a lack of standing. In the Boston case, a three-judge panel of the First Circuit affirmed that dismissal, and the plaintiffs have petitioned the full court for a rehearing.

In D.C., the outcome was worse for ERA supporters, in a case brought by the Democratic attorneys general of Illinois, Nevada, and Virginia.

‘Nothing Binding’

Judge Rudolph Contreras, an appointee of President Barack Obama, dismissed the lawsuit for lack of legal standing—that those suing hadn’t sustained the requisite legal injury that would allow them to come to court—but he also said in his decision that the 1979 deadline set by Congress was valid, meaning the last three states’ ratification votes were too late to count.

The pro-ERA states appealed Contreras’ decision, and the parties are still preparing their briefs, with the final reply brief due at the D.C. Circuit on Feb. 23.

There’s “nothing binding” from a court preventing the ERA from taking effect in January, Murphy said, describing Contreras’ finding on the congressional deadline to be dicta within his decision to dismiss for lack of standing.

Beyond the litigation, however, she argued political pressure on Democrats and Biden in particular might be the best hope for ERA supporters to get the amendment recognized, noting that Biden campaigned on support for women’s rights and the ERA.

“When he was elected, he did nothing and continued to oppose the ERA in both lawsuits,” Murphy added, referring to Justice Department attorneys opposing plaintiffs’ efforts in Boston and Washington to get a court order forcing the archivist to publish the amendment.

Search for Sympathetic Judge

Douglas Johnson, head of the National Right to Life group’s anti-ERA campaign, said the notion that the amendment is ratified and now just needs a rubber stamp from the archivist is on shaky legal ground. He noted that even the late Justice Ruth Bader Ginsburg remarked publicly that the ERA’s deadline was passed and the process would have to start over.

“This is all political theater. It has no legal reality,” he said. Johnson described the potential wave of ERA enforcement lawsuits as a fishing expedition to find a court that will rule in favor of the amendment.

“They’re just going to try to throw it up before a bunch of judges and try to see if they can get some judge somewhere to come to a different conclusion than Judge Contreras did,” Johnson added.

Along with the likelihood of new ERA litigation, January brings a leadership change in Virginia, as Republican Jason Miyares takes over as attorney general from Democrat Mark Herring. Herring initially brought the lawsuit alongside the AGs from Illinois and Nevada that is now pending appeal in the D.C. Circuit.

A spokeswoman for Miyares said the AG-elect is reviewing all of Herring’s cases and hasn’t yet decided how to handle the ERA lawsuit. “We anticipate it will be dismissed by the courts,” she said by email.

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

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

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