RICHMOND, Va. – Three Democratic state attorneys general are suing a U.S. government official to force him to recognize Virginia’s vote this week to ratify the Equal Rights Amendment and certify the measure as part of the Constitution.
The lawsuit filed Thursday against the archivist of the United States comes after the National Archives and Records Administration said this week that David Ferriero would “take no action to certify the adoption of the Equal Rights Amendment.“ Supporters say the measure, which Congress passed with bipartisan support in 1972 and sent to the states for approval, will guarantee women equal rights under the law.
“After generations of effort, the women of this country are entitled to their rightful place in the Constitution. This Court should compel the Archivist to carry out his statutory duty of recognizing the complete and final adoption of the Equal Rights Amendment,” the lawsuit says.
Many ERA opponents say the measure is unnecessary and could have consequences that end up harming women.
Virginia Attorney General Mark Herring is partnering with Nevada Attorney General Aaron Ford and Illinois Attorney General Kwame Raoul on the lawsuit filed in U.S. District Court for the District of Columbia. Before Virginia’s vote this week that made it the critical 38th state to approve the ERA, Nevada in 2017 and Illinois in 2018 were the most recent to ratify the amendment.
The three states’ ratifications came decades after a deadline set by Congress expired, which has left the ERA’s fate in question. Many legal observers have long expected the issue to be settled in court.
The lawsuit argues that U.S. laws do not give the archivist the power to decide whether to certify an amendment. They contend the archivist’s duty to certify the amendment is “mandatory and purely ministerial.”
In declining to certify the ERA, the archives said it was following advice from the U.S. Department of Justice, which issued an opinion this month saying it was too late for states to certify the ERA. The department said the amendment process must begin anew.
The U.S. Constitution says amendments can be proposed by Congress with a two-thirds vote in the House and Senate or by a constitutional convention called by state legislatures. So far, all 27 amendments have been put forward by Congress. Ratification is then required by the legislatures of three-quarters of the states, or 38.
In the lawsuit, the attorneys general argue that the deadline passed by Congress is not binding.
The time limitation was not included in the text of the article that was sent to the states for consideration, they argue. Additionally, the attorneys general say, the U.S. Constitution doesn’t explicitly give Congress the power to set a timeline for states to ratify an amendment.
They note that the last amendment to be added in 1992 – the 27th Amendment limiting the ability of members of Congress to raise their own pay – took more than 200 years to be ratified by 38 states.
They’re asking a court to direct the archivist to certify that the amendment has passed and is now the 28th Amendment to the U.S. Constitution.
“The law will never again treat any American like a second class citizen on account of their sex,” said Herring, who spoke at a press conference Thursday in Washington.
The press office of the National Archives and Records Administration referred a request for comment to the Department of Justice, which didn’t immediately respond.
The proposed amendment states, in part, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
Supporters of the ERA say it would offer stronger protections in sex discrimination cases and give Congress firmer ground to pass anti-discrimination laws.
Opponents warn it would erode commonsense protections for women, such as workplace accommodations during pregnancy. They also worry it could be used by abortion-rights supporters to quash abortion restrictions on the grounds they discriminate against women.
Some opponents also say the fact that five states that initially approved the ERA later moved to rescind their ratifications means it can’t be adopted in the Constitution. The lawsuit argues that those states’ efforts are “constitutionally unauthorized and without legal effect.”
Just as observers are split on what effect the amendment would have, legal scholars took different views Thursday of the newly filed lawsuit.
Jonathan Turley, a law professor at George Washington University, said the court would have to adopt “a parade of constitutional novelties” to declare ratification.
Erwin Chemerinsky, a constitutional law scholar and dean of the Berkeley School of Law, said he thinks the plaintiffs have a “persuasive argument” that 38 states have ratified the text of the amendment. But he added he also sees a strong argument that the issues in the lawsuit are up to Congress, not the courts, to ultimately decide.
Two other federal lawsuits have been filed over the ERA, one supporting its adoption and the other opposing it, and Chemerinsky said he expected one or more of those cases to reach the Supreme Court.
A. E. Dick Howard, a constitutional law expert at the University of Virginia, said there’s a long way to go before questions about the ERA will be settled.
“My goodness, can you imagine the number of parties and other states that would want to be heard in this?“ he said. “The amicus brief that would be filed from left and right? This is a hot topic.”
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