Terry H. Schwadron
Jan. 20, 2020
We all understand that amending the U.S. Constitution is a complicated, difficult, drawn-out affair because three-quarters of the states must approve a change and the political divisions in the country make that hard.
But we’d expect that any issue being raised that high on the flagpole would be more or less straight-forward.
So, when Virginia voted last week — and years after a statutory deadline had run out — to endorse the Equal Rights Amendment to declare women and men equal under the law, there would be a bit more celebration, finally leaping over the three-quarters bar among the states.
That no one was pouring Champagne hangs on both legal grounds because of the timing, but also, amazingly in 2020, on ideological grounds.
The Donald Trump-William P. Barr Justice Department’s Office of Legal Counsel issued an immediate ruling that the Virginia vote was too late, and, thus invalid for the purpose of meeting the bar for approved amendments. “We conclude that Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the States,” the OLC said in its opinion.
The opinion came in response to a lawsuit filed by three conservative-leaning states, Alabama, Louisiana and South Dakota. It effectively prevents the archivist of the United States, who administers the ratification process, from verifying that the amendment is valid and part of the Constitution after approval by the necessary number of states.
His authority doesn’t prevent states from acting on their own to ratify the amendment or to preclude them from challenging the Justice Department’s opinion in court.
But it is fair to conclude that rather than finding a way to celebrate the Virginia vote, the Trump administration moved to shut down the amendment process.
That brings us to the why question — the ideological issue. For opponents of the ERA resolution, the proposed amendment would make it easier to keep abortion legal in this country.
Meanwhile, it is legal to pay women less for same work, it is ok to have practices that do not protect pregnant workers, it is expected that we still have arguments about whether a woman can win a presidential race.
Here’s the complete text of the Equal Rights Amendment. Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
The ERA was first proposed by suffragist Alice Paul, then known as the “Lucretia Mott Amendment,” was first introduced to Congress in 1923, but the effort to pass it — which requires the approval of 38 states to be added to the Constitution — didn’t gain real traction until the women’s movement of the late 1960s and ’70s. In March 1972, Congress finally passed the ERA and sent it to the states to ratify within a seven-year window, later extending the deadline to 1982.
In the mid-1970s, the ERA looked headed for ratification. But support for the ERA stalled under pressure from social conservatives (Think the late Phyllis Schlafly, organizer of the “STOP ERA” campaign.) The anti-ERA claims were that the amendment would allow more widespread abortion and require women to serve in the military. In any event, by the 1982 deadline, 35 states had ratified the amendment, though five that had earlier passed it had by then rescinded their support. Despite the ERA being reintroduced in every Congress since the early 1980s, the effort to add it to the Constitution languished ever since.
Recently, the rise of the #MeToo movement along with more women in legislative power, has renewed interest in passing the ERA. Nevada passed it in 2017 and Illinois in 2018; when the Virginia legislature turned Democratic in 2018, it set things up for number 38.
That possibility triggered conservative legal challenges by the three states.
Of course, in that time we have had the U.S. Supreme Court Roe v. Wade decision, making abortion legal, and we’ve had women in military and combat roles for some time.
Still, the amendment is strategic and practical as well as symbolic. The most immediate practical impact of an ERA likely would be in better enforcing criminal law in cases of domestic violence or in equal pay laws.
But abortion is the flashpoint, once again, because it is believed that abortion advocates would have a new, stronger base for argument in defending Roe, for example, based on different treatment for women and men under the law. Here was Virginia Republic State Sen. Amanda Chase: “The ERA does nothing for true equality of women but uses women as a political pawn to push the liberal agenda,” adding that the resolution would “be used to overturn all restrictions on abortions.”
Last month, Alabama, South Dakota and Louisiana aimed their federal lawsuit at stopping the national archivist from recognizing a vote in Virginia or elsewhere from counting towards a change in the Constitution. “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,” Alabama Attorney General Steve Marshall said adding that the ERA “would not promote true equality, but rather a far-left agenda.”
Now because Congress passed a delay in deadline once, from 1979 to 1982, there is nothing stopping Congress from doing so again — except for Republican opposition. There are two such bills in Congress now.
And there is nothing stopping the court system from rejecting the lawsuit from the three states. Because of the lawsuit, the archives administration asked Justice for an opinion — and got one that even disagreed with its own 1977 opinion that concluded Congress could extend a ratification deadline on an amendment pending before the states.
The Justice opinion added that Congress cannot revive the ERA by retroactively changing the deadline. According to the OLC, the “only constitutional way” to proceed, would be to restart the entire amendment proposal process.
Best hold the Champagne.