Is the ERA Done For?

Efforts to give the ERA the Lazarus treatment are another indication of the left’s penchant for magical legal thinking

AP/Scott Applewhite, file
Gloria Steinem of the National Organization for Women at an Equal Rights Amendment rally at Washington on July 4, 1981. AP/Scott Applewhite, file

A century after the Equal Rights Amendment was proposed, it could finally be breathing its last. That prospect came into focus as an appeals panel, comprising appointees of both Presidents Obama and Trump, swatted down Democratic claims that the ERA is already part of the Constitution. Efforts to give the ERA the Lazarus treatment are another indication of the left’s penchant for magical legal thinking. 

​​The ERA was initially proposed in 1923, three years after women won the right to vote with the ratification of the 19th Amendment. The ERA finally passed Congress in 1972. It ordains that “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” After a heated ratification campaign — Hulu’s television series “Mrs. America” offers a retelling — the ERA fell short.    

The case considered by the D.C. Circuit pits a group of Democratic state attorneys general against their Republican counterparts. The Democrats argue that because 38 states have voted for the ERA — clearing the two-thirds bar  — “our Constitution has been amended to recognize that all individuals are equal regardless of their sex.” The archivist of the United States, they insist, is obligated to publish the amendment as part of the national parchment.

The Republicans point out that the deadline for ratification set by Congress was 1979, subsequently extended to 1982. The 38th state to ratify — Virginia — did not do so until 2018, tardy by 36 years. Five states, meantime, have rescinded their ratification, a move of uncertain legal efficacy. In January 2020, the previous archivist, David Ferriero, asked the Department of Justice what it made of all this. The DOJ issued an opinion that the ERA was dead. 

President Biden’s Justice Department, though, feels differently. In January it issued a new opinion that effectively takes an agnostic approach on whether the ERA can still be passed with an extended deadline. The government lawyers wrote that whether the ERA is part of the Constitution will be resolved not by a Justice Department opinion “but by the courts and Congress.” The issues, they mused, “were closer and more difficult” than their predecessors assumed.

Courts have stepped in to put a stop to the Biden Administration’s pettifogging. After a district judge dealt Democrats a defeat, the panel of three riders of the District of Columbia appeals circuit held that the “states have not clearly and indisputably shown that the archivist had a duty to certify and publish the ERA.” There will be no writ of mandamus to put the ERA into the Constitution. The ERA’s champions have not disclosed whether they plan to appeal. 

Lawmakers have gotten in on the action, holding hearings and cooking up resolutions in both the House and Senate declaring the ERA to be a “valid constitutional amendment, regardless of any time limit that was in the original proposal.” Some religious groups warn of the ERA’s potential  “negative impacts to the common good and to religious freedom.” Unlike this constitutional farce, that point can be debated.

One needn’t return to the 1970s to grasp that this moment is about more than the ERA. It is shaping up as a Waterloo for leftists intent on quack constitutional litigation in pursuit of laws they have been failing to achieve the old-fashioned way. That is either bringing winning constitutional issues before the courts, or — forgive the very idea — winning actual elections. Women have long since been brought into that process. No one seeks to turn them back.

The New York Sun

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