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Senate Push for Equal Rights Amendment Won’t End Court Fight (1)

Jan. 22, 2021, 4:03 PM; Updated: Jan. 22, 2021, 8:30 PM

Efforts to add the Equal Rights Amendment to the U.S. Constitution have new momentum now that the Senate is under Democratic control, but the disputed amendment’s fate is expected to rest with the Supreme Court regardless of congressional action.

Sens. Ben Cardin (D-Md.) and Lisa Murkowski (R-Alaska) are introducing a Senate resolution that aims to affirm the amendment’s ratification by rescinding the deadline for three-fourths of the states to ratify the now 49-year-old proposition, the lawmakers said in a statement Thursday.

“There should be no time limit on equality,” Cardin said in the statement. “Even as we celebrate America’s first female Vice President, our nation is held back as the only modern constitution that fails to enshrine full equality for both men and women. This is unacceptable.”

Backing Cardin and Murkowski in their resolution are Reps. Carolyn Maloney (D-N.Y.), Jackie Speier (D-Calif.) and Tom Reed (R-N.Y.).

The U.S. House passed a similar resolution in February 2020, largely along party lines with Democrats in support, but the Senate never considered it under then-Majority Leader Mitch McConnell (R-Ky.). The resolution is likely to need 60 votes, including at least 10 Republicans, to advance through the Senate. Speier resubmitted a House resolution on Thursday.

Even among the amendment’s advocates, however, there’s a difference of opinion over the congressional proposals.

Wendy Murphy, a lawyer representing ERA supporters in a federal lawsuit in Boston, says the House and Senate resolutions give “straw man style” validity to the amendment’s legal disputes. She said the better option is for President Joe Biden to direct the U.S. Archivist to publish the ERA. Under federal law, the archivist publishes an amendment once it is adopted, with their certificate showing that it has become a valid part of the Constitution.

Too Late?

The ERA, if approved, would be the 28th amendment. It would create a constitutional guarantee of equal protection under the law regardless of sex. Virginia’s legislature voted to ratify the measure a year ago, marking the last of the 38 state approvals needed to satisfy constitutional requirements.

But Congress had set a ratification deadline of 1979, which was later extended to 1982, when it sent the amendment to states in 1972. Opponents of the revived effort to enshrine the measure contend Virginia’s approval came a few decades too late. They also note that five states subsequently rescinded their initial approvals and that the entire process would need to be redone.

One of those opponents, Alabama Attorney General Steve Marshall (R), said Congress also has no authority to retroactively remove the deadline.

“The seven-year deadline Congress put into the ERA in 1972 was a key part of the bargain between Congress and the States,” Marshall said in an emailed statement. “That deal cannot be rewritten nearly 50 years later. As the late Justice Ruth Bader Ginsburg stated in September 2019, those who want to add the ERA to the Constitution must comply with the Constitution by putting a new ERA ‘back in the political hopper’ and starting ‘over again collecting the necessary states to ratify it.’”

Litigation over the initiative has also drawn a wide range of legal briefs from labor unions, women’s groups, constitutional lawyers, and major businesses—mostly supportive, but some in opposition of the ERA.

Pending Cases

The legal validity of the deadlines and state rescissions are points of dispute that both supporters and opponents of the ERA expect to be resolved through litigation that likely will end up at the U.S. Supreme Court. Two federal lawsuits over the delayed ratification are pending—one in federal district court in the District of Columbia and another in the U.S. Court of Appeals for the First Circuit in Boston.

Both cases seek a court order to declare the ERA to be validly ratified as the 28th Amendment and to force U.S. Archivist David Ferriero to publish it.

Ferriero said in January 2020 that he wouldn’t publish it without a court order, as he was relying on a legal opinion from the Trump administration’s Justice Department that deemed the ratification by Virginia—as well as Nevada in 2017 and Illinois in 2018—to be too late because of Congress’ 1979 deadline and the five state rescissions.

“Our position is the Trump administration overstepped its authority” by issuing a legal opinion that opposed ratification, said Kati Hornung, a co-founder of VoteEqualityUS, an offshoot of the VAratifyERA campaign that advocated for Virginia’s vote. The archivist’s role in publishing is an administrative function, like a librarian checking in books, she said, and so it should have been done automatically when Virginia ratified the amendment.

Alabama’s Marshall and attorneys general from four other states have joined the lawsuit pending in D.C. federal court to oppose the ERA’s ratification. Marshall has argued that the ERA is unnecessary because other anti-discrimination statutes exist in federal law and that the amendment would inspire waves of new litigation over previously upheld state laws, such as abortion restrictions.

Separate Paths

Hornung said she disagrees with the contentions of Murphy, the attorney in the Boston case, about the congressional resolutions possibly undermining the ERA ratification. Biden could order the archivist to publish the amendment, she said, but that action likely would still face legal challenges until the Supreme Court settles the dispute between ERA supporters and opponents.

The congressional option and a potential order from Biden are two separate paths, Hornung said, but she added that congressional action would add credence to supporters’ arguments of the amendment’s validity in court.

“We kind of suspect that all forward momentum is good momentum,” she said.

Murphy wasn’t so optimistic, saying the phrasing of the congressional resolution could encourage courts to recognize the original deadlines as valid and to question whether three-fourths of states really have ratified the amendment—in other words, deem the state rescissions as valid too, leaving the ERA short of the necessary 38 states.

“This will give the judge a nice opportunity to rule against the ERA by holding that congress lacked authority to retroactively remove the deadline,” Murphy said.

Virginia Attorney General Mark Herring, who led the lawsuit in D.C. federal court calling for the ERA’s recognition, would see congressional action as reinforcing his case that the ratification deadlines aren’t valid, according to his spokeswoman Charlotte Gomer.

“Attorney General Herring and his colleagues believe that the deadline is not binding and did not prevent the ERA from being added to the Constitution,” she said by email, “but if Congress wants to pass legislation that further clarifies this, Attorney General Herring would welcome that move.”

(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: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com

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