A federal appeals court in Boston won’t rehear the appeal of Equal Rights Amendment supporters arguing the proposed addition to the U.S. Constitution has been ratified, leaving in place a lower court decision to dismiss their lawsuit for lack of standing and setting it up for a possible Supreme Court review.
The plaintiffs, led by advocacy group Equal Means Equal, are seeking a court order to force U.S. Archivist David Ferriero to publish the would-be 28th Amendment to the Constitution, sent to the states by Congress in 1972.
Ferriero has refused to publish it, relying on a Justice Department legal memo saying the 1979 deadline that Congress had set for states to ratify the ERA is valid and legally binding. The final three states to ratify it—Illinois, Nevada, and Virginia—took ratification votes four decades after the deadline, with Virginia legislators granting their approval in January 2020.
The Boston plaintiffs had asked the U.S. Court of Appeals for the First Circuit to rehear their appeal with its full slate of judges, after a three-judge panel of the court ruled against them last June. The appellate court denied that en banc rehearing request in a single-paragraph ruling Tuesday.
A similar case is pending at the District of Columbia Circuit, where the state attorneys general of Illinois, Nevada, and Virginia are seeking court recognition of the amendment’s ratification. The states filed their brief on Jan. 3, arguing the Constitution doesn’t give Congress authority to set deadlines on the amendment process and that Ferriero is required to publish the measure.
A new wave of ERA litigation is likely to begin as soon as Jan. 27—the two-year anniversary of Virginia’s ratification vote—since the amendment’s language says its ban on sex discrimination under the law would take effect two years after ratification.
Wendy Murphy, the lead attorney in the Boston case, said the plaintiffs haven’t decided whether to petition the Supreme Court again to review the case. The Supreme Court denied her earlier request to review the district court’s decision dismissing the lawsuit, an unsuccessful effort to skip the First Circuit appeal.
“The timing of the court’s decision is perfect because we will be filing a new round of lawsuits to enforce the ERA when it takes effect in a couple of weeks, on January 27, 2022. We have excitedly been planning for this day for a long time,” Murphy said by email.
The Boston case is Equal Means Equal v. Ferriero, 1st Cir., No. 20-01802, rehearing denied 1/4/22