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House Votes to Remove Deadline for Equal Rights Amendment (1)

March 17, 2021, 6:27 PMUpdated: March 17, 2021, 8:10 PM

Backers of the Equal Rights Amendment won a fresh victory in the U.S. House, with a vote to remove a ratification deadline they hope to see matched in the Senate and upheld in court challenges that are almost certain to follow.

The House approved a Democratic-sponsored resolution Wednesday by a vote of 222-204, declaring the amendment would become part of the Constitution once three-fourths of states have ratified it, regardless of any time limit previously set by Congress.

The vote comes less than two weeks after a federal judge ruled against ERA supporters, finding that the 1979 deadline set for ratification was constitutionally valid but stopping short of ruling on whether Congress has the authority to retroactively rescind it. That point could be raised in one of two ongoing lawsuits over the ERA, or in new litigation, if the Senate also approves the deadline-removal resolution.

If supporters are successful, the Equal Rights Amendment would become the 28th Amendment to the Constitution. The amendment language declares, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

The ERA’s backers contend the amendment became fully ratified in January 2020, when Virginia’s legislature became the 38th to approve the measure. The threshold for ratification was reached, however, some four decades after the now-disputed 1979 deadline that Congress initially set.

“We want in the Constitution, plain and simple,” Rep. Jackie Speier (D-Calif.), a lead sponsor of the resolution, said during House floor debate Wednesday. “We are the only country with a written constitution that does not prohibit discrimination based on sex. Shame on us. There can be no expiration date on equality.”

The amendment would empower Congress to enact stronger protections for women on a range of issues, including violence against women, pay disparities, and pregnancy discrimination in the workplace, Speier and other supporters said before the vote.

In a phone interview afterward, she defended the lawmakers’ authority to remove the deadline.

“It’s the prerogative of Congress,” she said. “It can put a deadline in the preamble. It can amend the deadline. It can strike the deadline.”

The ERA likely wouldn’t have a direct impact on private employers but could inspire state and federal laws or change the way courts interpret laws during litigation, said Cheryl Pinarchick, a labor and employment lawyer at Fisher Phillips in Boston who co-chairs the firm’s pay equity practice.

“Those laws that do impact private employers may be interpreted in a way that is much more expansive than they were before,” she said. “States may pass additional laws around equal pay, or we may get something at the federal level.”

A coalition of more than 90 major U.S. businesses, including Apple Inc., Citigroup Inc., Alphabet Inc.'s Google, and Microsoft Corp., voiced support for the ERA last year, in one of many legal briefs filed in support of the amendment.

Bloomberg LP, parent company of Bloomberg Law, also signed onto the business coalition brief.

Opponents Cite Abortion

The ERA’s opponents said it isn’t necessary because the 14th Amendment already provides equal protection, and argued abortion rights groups would use the amendment as a new avenue for challenging anti-abortion laws at the state and federal level.

“Men and women in the United States are already equal under the law,” said Rep. Michelle Fischbach (R-Minn.). “If the ERA became law, it would allow these organizations to advance their radical policies through the courts.”

The House approved a similar resolution in February 2020, but the congressional term ended without the Senate voting on the measure. Democrats have since won a narrow majority in the Senate, but they still lack the 60 votes needed to overcome a filibuster unless they can sway 10 Republicans to join them in supporting the ERA resolution.

Amendment backers take the position—in line with a 1977 Justice Department Office of Legal Counsel opinion—that the president’s signature isn’t needed on resolutions related to constitutional amendment deadlines. President Jimmy Carter in 1978 signed a resolution to extend the ERA deadline to 1982, saying his signature wasn’t required but he wanted to show his symbolic support for the amendment.

Litigation Disputes Deadline, Rescissions

But opponents of the measure dispute whether 38 states have truly approved the amendment, since five of those that ratified it in the 1970s later took action to rescind their approvals.

A Justice Department legal opinion from January 2020 deemed the congressional deadline to be valid but didn’t take a position on the five states’ attempts at rescission. U.S. Archivist David Ferriero, whose job includes publishing constitutional amendments once they’ve been ratified, said in January 2020 he wouldn’t publish the ERA because of the DOJ memo unless a final federal court order instructed him otherwise.

Two pending lawsuits urge federal courts to find the congressional deadline and the state rescissions to be invalid and to declare the ERA as fully ratified. In both cases, those advocating for the ERA lost initial federal district court rulings.

Most recently, a District of Columbia federal judge ruled that the three most recent states to ratify the ERA—Illinois, Nevada, and Virginia—lacked legal standing to sue the archivist and that their ratification votes came too late since the congressional deadline passed 40 years ago. Virginia Attorney General Mark Herring said he would consider appealing the decision, but no notice of appeal has been filed yet.

In a separate case, a Boston federal judge found the women’s rights group Equal Means Equal also lacked legal standing to sue Ferriero. The group appealed to the U.S. Court of Appeals for the First Circuit, where it awaits either an oral argument date or a court decision on the briefs.

Some ERA supporters have held out hope for a strategy by which Congress could remove the deadline and avoid court intervention by calling it a “political question” beyond the purview of the judiciary, said Wendy Murphy, the Boston attorney representing Equal Means Equal.

The strategy looks unlikely to succeed, she said, given a comment by Washington Judge Rudolph Contreras in his March 5 ruling. Contreras said then that he wouldn’t rule on whether Congress has authority to remove its deadline, since Congress hadn’t yet taken that step.

Murphy read the comment as foreshadowing that Contreras sees the deadline removal question returning to court if the House and Senate vote in favor of lifting the deadline.

“I took from that: Congress can do what it wants, but the courts will have the final say,” Murphy said. “It does not bode well for the ERA. I have yet to see a single scholar comment on this to say Congress has that power.”

(Updated with additional reporting throughout.)

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; John Lauinger at jlauinger@bloomberglaw.com

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