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A Justice Department opinion issued this week says the deadline for ratification has passed. Advocates say otherwise.
When Democrats took control of both chambers of the Virginia state legislature this month, they vowed to make the ratification of the Equal Rights Amendment—a cause of the 1970s that has been revived in recent years—a top priority.
This week, the U.S. Department of Justice stepped into the debate, releasing a memo declaring the effort irrelevant. The opinion, prepared by the Office of Legal Counsel, argues that as the ERA failed to gain the approval of 38 states, a requirement for constitutional amendments, by the first deadline in 1979 and the extended deadline in 1982, the measure is dead.
“Because three-fourths of the state legislatures did not ratify before the deadline that Congress imposed, the Equal Rights Amendment has failed of adoption and is no longer pending before the States,” the opinion reads. “Accordingly, even if one or more state legislatures were to ratify the proposed amendment, it would not become part of the Constitution.”
Virginia lawmakers aren't deterred by the opinion, with a Senate committee on Thursday approving the amendment of the U.S. Constitution by a 10-5 vote. If the measure makes it all the way through, the state would become the 38th to ratify the amendment. State Rep. Jennifer McClellan, one of the sponsors of the bill, tweeted her support before the vote. “It’s time for Virginia to make history and put women in the US Constitution!” she wrote.
U.S. Rep. Jennifer Wexton of Virginia tweeted a more direct dismissal of the DOJ opinion. “Trump's DOJ doesn't decide whether women are equal under the law,” she wrote. “The power to amend the Constitution lies with Congress and the states. I look forward to Virginia becoming the 38th and final state to ratify the ERA … there's no expiration date on equality.”
Women’s rights activists have been hopeful that one of the several states where ERA ratification seems possible—including Virginia, Utah, and North Carolina—might be the 38th and final state needed to add the amendment to the Constitution, which includes just 24 words in its main clause: ”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 argue the ERA inclusion in the Constitution is crucial for combatting sex discrimination. But opponents of ratification who emerged after it was first passed by Congress in 1972 are largely the same, with many cultural conservatives saying they fear it will be deployed in legal fights over abortion and other issues.
Passage of the amendment will also be complicated by another wrinkle, as five states have rescinded their ratifications since their initial votes. ERA proponents have dismissed this, saying historical precedents don’t allow for a state to withdraw support for an approved constitutional amendment.
The anticipated ratification of the ERA by at least one state has already provoked separate legal battles. Attorneys general from three states—Alabama, Louisiana, and South Dakota—filed a lawsuit in December seeking to block the national archivist, an employee of the federal government who oversees the administrative process behind amendments, from adding the Equal Rights Amendment to the U.S. Constitution.
“The people had seven years to consider the ERA, and they rejected it,” the attorneys general wrote in a statement regarding their lawsuit. “To sneak it into the Constitution through this illegal process would undermine the very basis of our constitutional order.”
Alabama Attorney General Steve Marshall was pleased with the DOJ’s opinion, saying it was in line with the state’s main argument over the ERA’s deadline expiration.
Virginia’s attorney general, Mark Herring, responded to the lawsuit and the legal opinion in a statement saying he would continue to push for ratification. “The fact that Republican attorneys general are suing to block the ERA, and that they now have the support of the Trump Administration, is absolutely repugnant,” he said.
Jessica Neuwirth, the founder and co-president of the ERA Coalition, said that the executive branch, including the archivist and the DOJ, has “no role” in deciding if amendments are valid. “You have to wonder why they went to such lengths to issue an opinion that means nothing,” she said. “It’s not binding on Congress or the courts or any states. And it’s very clear already from the response in Virginia that it won’t stop the ERA.”
Meanwhile, supporters of the ERA filed a federal lawsuit in Massachusetts this week arguing that the deadline set forth in the 1970s is not constitutionally binding and can be changed by Congress, as it was before from 1979 to 1982. The lawsuit points to the case of the 27th amendment, which was first introduced by James Madison in 1789, but wasn’t ratified until 1992, over 200 years later. The 27th amendment prohibits Congress from voting for and enacting a pay raise in the same legislative term.
“Proponents of the ERA were incredulous that a congressional pay-raise amendment was ratified centuries after Congress dispatched it to the States, while a proposed constitutional amendment granting equality of citizenship to women was given only ten years,” the lawsuit reads.
A joint resolution has been introduced in the House and Senate to entirely remove the deadline for ratification. The DOJ’s memo states that they “do not believe [the Constitution] permits that approach.” That opinion is in direct contrast to an opinion issued by the DOJ in 1977, when the office advised Congress that it could extend the ERA’s deadline. The memo states that the DOJ now “disagree[s] with the 1977 opinion’s conclusion that Congress may extend a ratification deadline on an amendment pending before the States.”
But Neuwith said that not only would Virginia’s ratification be legal, it would confirm what most Americans already believe are already in the Constitution. Polling done by the ERA Coalition suggests that 80% of Americans think that equal rights protections based on sex are already spelled out in the Constitution, which isn’t the case. “Two hundred years ago, women were intentionally left out of the Constitution. It’s a fundamental, bipartisan human rights issue to pass this now,” Neuwith said. “It’s just 24 words.”
Emma Coleman is the assistant editor for Route Fifty.