Plaintiffs in ERA fight undeterred by lawsuit dismissal

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Equal Means Equal executive director Kamala Lopez (second from right) rallies with other ERA supporters. (Photo courtesy of Equal Means Equal)

An attempt to revive and ratify the Equal Rights Amendment was blocked earlier this month after a federal court found the plaintiffs lacked standing to bring the lawsuit, but supporters of ratification are vowing to continue their fight and have filed an appeal to the U.S. Supreme Court.

The lawsuit, brought by advocates of the ERA, highlights the tangled path the amendment has taken since it was passed by Congress in 1972 and the pivotal role the U.S. Archivist plays in the ratification process.

Equal Means Equal, a 501(c)(4) organization devoted to advocating for women’s equality, along with The Yellow Roses, an organization of Massachusetts high school students advocating for the ratification of the ERA, and Katherine Weitbrecht, who was strangled for wearing a rape whistle, filed a lawsuit in January. The groups are seeking to compel U.S. Archivist David Ferriero to ratify the Equal Rights Amendment.

Ferriero is the named defendant because as the archivist for the United States, he is responsible for recording the constitutional amendments ratified by the states.

The lawsuit, Equal Means Equal, et al. v. David S. Ferriero, in his Official Capacity as Archivist of the United States, 1:20-cv-10015, was dismissed Aug. 6. But the plaintiffs filed an appeal Aug. 13 to the Supreme Court, according to the district court docket.

Following the district court’s ruling, Equal Means Equal released a statement saying the dismissal had been expected. However, the organization said it was confident in its case and its supporters should not lose hope.

“Things are getting really exciting, Equality Warriors!” Equal Means Equal said in a statement. “Keep your eye and ears open as we head towards the finish line. Things can and will happen quickly now, and we must be ready.”

Path to ratification

Congress approved the Equal Rights Amendment in March 1972, prohibiting equality of rights under the law from being denied or abridged on account of sex. But along with the approval, Capitol Hill imposed a seven-year deadline for 38 states to ratify the amendment.

Thirty-five states, including Indiana, had ratified the ERA before the deadline, but five of those states changed their minds, passing resolutions to rescind their prior ratifications. In 1978, Congress extended the deadline to June 30, 1982, but no other state mounted enough votes for ratification.

The ERA was gathering dust when Ferriero issued an opinion in 2012 that helped revive the movement. He stated he would record the states’ ERA ratification votes even if they occurred after the expiration of the deadline, and he would publish the amendment if three-fourths of the states voted to ratify it.

Nevada, Illinois and Virginia all ratified the ERA between 2017 and 2020, which brought the total to 38 states.

However, the Department of Justice’s Office of Legal Counsel issued a memorandum opinion in January 2020 that cooled the process. The opinion advised the archivist not to certify the ERA because the deadline for approving the amendment was valid and had already passed.

A short time later, Equal Means Equal filed its complaint.

Amicus curiae briefs in support of the plaintiffs were filed by the U.S. Conference of Mayors, Equal Means ERA, National Women’s Political Caucus, National Congress of Black Women and the United Church of Christ, among others.

The brief from the Alice Paul Institute and other organizations argued passage of the ERA would benefit women by lifting more of them out of poverty, giving them greater access to education and curbing the violence against them.

“Women should not have had to wait this long, nor wait a minute longer, to have equal rights,” the brief stated. “Our country loses potential leaders in science, medicine, education, entrepreneurship, and government every day we limit opportunities based on sex.”

Lack of standing

Judge Denise Casper of the U.S. District Court for the District of Massachusetts rejected the plaintiffs’ broad assertion that all women who would be protected under the ERA are injured by the archivist’s inaction. In addition, she questioned whether Equal Means Equal has any members.

The 28-page ruling noted that from the amended complaint, Equal Means Equal does not individually identify any member. The group alleges it has more than 20,000 “active supporters” and its involvement in the litigation represents the interests of its members and women at large. But, the court said, the group failed to prove it had associational standing because it did not identify a member who had suffered harm.

Moreover, the court did not find the plaintiffs had shown they suffered from a particular injury that would be protected by the ERA. The injuries the plaintiffs did allege were not only too general but also could not be fairly attributed to the archivist’s inaction.

“The disproportional levels of violence women face, bias in education and the fact gender-based offenders of violence are less likely to be held responsible compared to offenders of other types of violence, all relate to independent acts of third parties: the perpetrators of violence, education systems and those policing violence, not the Archivist,” Casper wrote.•

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