The Equal Rights Amendment is Back in the Courts

In case you missed it, the fight for the Equal Rights Amendment rages on–this time, in the courts.

Crash course: for the Equal Rights Amendment to become part of the Constitution, 38 states need to ratify it. Congress sent the Amendment to the states in 1972, and 35 states ratified it between 1972 and 1978. But then for nearly 40 years, the Amendment lay dormant.

In the midst of #MeToo, the backlash to the overt sexism of the Trump administration, and the rise of feminism as a mainstream viewpoint, the three-state strategy took hold. Between 2017 and 2020, Nevada, Illinois, and Virginia ratified the Amendment, reaching the 38-state threshold to become part of the Constitution.

In 2020, the three recently ratifying states–Virginia, Illinois, and Nevada (“Pro-ERA States”)–sued the National Archivist, David Ferriero. They argued that with their ratifications, the U.S. Constitution now declares, once and for all, that equality of rights under the law shall not be denied or abridged on account of sex. They asked the court to (1) declare that the ERA is now part of the Constitution and (2) to order the National Archivist to publish the Amendment as part of the Constitution.

But the Pro-ERA states face a few doctrinal hurdles. First, the preamble to the ERA contains a deadline for ratification (originally 1979, Congress extended to 1982). Second, five states have supported to rescind their ratifications of the ERA (Idaho, Kentucky, Nebraska, Tennessee, and South Dakota). Third, the defendants argue that Pro-ERA states lack standing to bring their lawsuit, and that their claims are political questions that belong in Congress rather than the courts.

The National Archivist was joined by three of the states that have purported to rescind their ratifications (Nebraska, Tennessee, and South Dakota), along with Alabama and Louisiana (collectively, “Anti-ERA States”), who intervened in the case to oppose the lawsuit.

Here are the key briefs in the litigation thus far:

• Pleadings:
  • Complaint of Pro-ERA States.
  • Answer of Anti-ERA States.
• Briefing:
  • The National Archivist’s Motion to Dismiss the Lawsuit.
  • The Pro-ERA States’ Opposition to Motion to Dismiss the Lawsuit.
• Amicus Briefs (Proposed):
  • In support of the Pro-ERA States:
    • Generation Ratify and Other Youth Groups*
    • Business Groups (signed by former Attorney General Loretta Lynch)
    • U.S. Conference of Mayors
    • Equality Now
    • Organizations that Advocated for the ERA in Virginia, Illinois, and Nevada
    • ERA Coalition
    • Michigan
    • Montana
    • VoteERA.org
  • In support of the National Archivist and Anti-ERA States:
    • The Eagle Forum
    • [Update July 16, 2020]: Independent Women’s Law Center
    • [Update July 24, 2020:] Concerned Women for America
  • In support of neither party:
    • Constitutional Law Professors
• [Update July 6, 2020]: Anti-ERA States’ Motion for Summary Judgment

Some of these briefs focus particularly on doctrinal hurdles discussed above. But many also address the core values that the Equal Rights Amendment represents. It is amazing to watch many of the same debates that we focused on in the Ginsburg Tapes play out again, nearly fifty years later.

*I represented Generation Ratify and other youth groups as amicus parties in support of the Pro-ERA states. This blog represents my views in my personal capacity.