Pair of lawsuits battle over legality of recent push for Equal Rights Amendment

Nearly 50 years after it was passed by Congress and sent to the states for ratification, the Equal Rights Amendment is inciting a new round of litigation just as the Virginia Legislature is expected to soon ratify the constitutional provision.

Equal Means Equal and The Yellow Roses along with Katherine Weitbrecht filed a complaint in federal court Tuesday seeking to ensure the ERA is recorded as ratified as soon as the Virginia Statehouse votes. In December 2019, Alabama, Louisiana and South Dakota filed a federal lawsuit asking the court to prevent the certification and publication of the amendment.

The defendant in both cases is the David S. Ferriero, the archivist of the United States. As part of his official duties, Ferriero administers the process of recording the states’ ratification of constitutional amendments. He is at the center of the dueling litigation, with both sets of plaintiffs arguing over whether the archivist can record attempts to rescind ratifications and decline to record the ratifications.

Equal Means Equal and its co-plaintiffs argue they and all women will suffer serious injury if the Alabama lawsuit prevails because government officials will decline to identify and repair sex discriminatory provision in the laws, regulations and policies. Also, they asserted women suffer disproportionately higher rates of violence and their offenders are less likely to be held responsible because females do not have full constitutional equality.

“Our lawsuit is intended to ensure that the ERA becomes the 28th Amendment to the U.S. Constitution when Virginia ratifies,” Equal Means Equal legal counsel Wendy Murphy said in a press release issued Tuesday. “We were compelled to file suit when politically driven opponents to women’s equality took legal action against us in Alabama. This issue is far too important for women to sit back and hope a federal court in Alabama does the right thing by all women in America.”

The lawsuit, Equal Means Equal, The Yellow Roses and Katherine Weitbrecht v. David S. Ferriero, 1:20-cv-10015, was filed in the U.S. District Court for the District of Massachusetts.

Alabama, Louisiana and South Dakota countered they would be seriously injured if the ERA was ratified because it would undermine the rule of law and “threaten the progress Alabama, Louisiana and South Dakota women have made.” The three plaintiffs contend allowing the ERA to be ratified would upend states’ restrictions on abortion and mandate state funding for abortions. Also, they argued, ratification could erase the distinctions between the sexes so high school and college sports teams, state prisons and dorm rooms would become co-ed. Even state-funded women’s shelters could be threatened for excluding men.

“If this constitutional bait-and-switch is successful, there will be dire consequences for the rule of law,” Alabama Attorney General Steve Marshall said in a press release when the December lawsuit was filed. “The people had seven years to consider the ERA, and they rejected it. To sneak it into the Constitution through this illegal process would undermine the very basis for our constitutional order.”

The lawsuit, Alabama, Louisiana, South Dakota v. David S. Ferriero, 7:19-cv-02032, was filed in U.S. District Court for the Northern District of Alabama, Western Division.

After several failed attempts, the Equal Rights Amendment finally got through Congress March 22, 1972. Indiana Sen. Birch Bayh, the author of Title IX, which gave women equal access to higher education, was a strong advocate for the ERA in the Senate.

Bayh’s home of Indiana was the last state to ratify the ERA prior to the March 22, 1979 ratification deadline. The vote in the state senate was a close 26-to-24, but Bayh’s staff helped lobby members of the Indiana Senate, even securing then-Democratic Sen. Lindel Hume’s support by getting the Princeton High School Band included in President Richard Nixon’s 1972 inaugural parade.

In the 1972 ERA, Congress set a seven-year deadline for ratification. Bayh successfully pushed for an extension to June 30, 1982, but the amendment was still three states shy of the 38 needed to ratify.

However, the ERA remained active in some statehouses. Five states – Nebraska, Idaho, Tennessee, Kentucky and South Dakota – have rescinded their previous ratifications. Meanwhile, Nevada ratified the amendment in 2017 and Illinois followed in 2018. Virginia is expected to become the 38th state to ratify.

Equal Means Equal argued the deadline set by Congress is unconstitutional because it is a separate provision not included in the text of the ERA. States are allowed to set their own schedules for ratifying or not ratifying any proposed constitutional amendment, but the ERA’s “extra-textual” deadline imposed an unlawful constraint.

The first 16 amendments had no deadlines for ratification, Equal Means Equal noted in its complaint. Even though the 18th Amendment did set a time limit, it was in the text of the proposed amendment.

Alabama insisted the deadline is valid and the time to pass the ERA has expired. Congress, the state argued, can limit the time for ratification regardless of whether the deadline provision appears in the text of the amendment itself or in the proposing resolution.

Moreover, Alabama asserted, even if Nevada, Illinois and likely Virginia are allowed to ratify, the ERA is still short because five states have withdrawn their support. They all rescinded their ratifications before the congressional deadline so, Alabama contended, these states have not ratified the amendment.

Equal Means Equal countered that neither Article V of the Constitution nor U.S. Supreme Court precedent enables states to rescind their ratification. Although a district court did uphold the rescission of ERA support in Idaho v. Freeman, 529 F. Supp. 1107, 1128 (D. Idaho 1981), Equal Means Equal argued that since the U.S. Supreme Court stayed the judgment of the lower court before the entire case was dismissed as moot, there is no case law from any federal court addressing whether states can have a ratification do-over.

Ferriero, as the archivist, is key to this entire dispute. The archivist has the job of recording each ratification and, if three-fourths of the states ratify, publishing the amendment, which makes it part of the Constitution.

Equal Means Equal maintained the archivist has properly record the ratification documents from 37 states and has no duty or authority to record “unlawful attempts to rescind ratifications.” Conversely, Alabama charged the archivist’s actions are illegal and unconstitutional because he continues to accept new ratification documents and he refused to “honor the States’ rescissions.”

The archivist has not submitted any court filings in response to either case.

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