UPDATE ― 6:06 p.m. EST Wednesday: The Trump administration’s Department of Justice made it clear that it opposes the Equal Rights Amendment.
There’s a constitutional showdown heating up over equal rights for women, somehow still a contentious issue in 2020.
That’s because the Equal Rights Amendment, which passed Congress in 1972 and would amend the Constitution to give women equal standing under the law, is on the verge of ratification. Within the next few weeks, Virginia is expected to become the 38th state to ratify the ERA, clearing the Constitutional threshold for ratification, which is three-fourths of the states.
Already, Republicans are in court trying to block the ERA’s inclusion in the Constitution. At the end of December, three GOP attorneys general filed a suit in a federal court in Alabama to block the ERA’s ratification, arguing that it’s not constitutional.
On Tuesday, activists at the women’s rights group Equal Means Equal and the young women’s group Yellow Roses filed a lawsuit in Massachusetts federal court, seeking to make sure the amendment makes its way into the Constitution after Virginia ratifies, pushing back on the arguments in the GOP lawsuit.
The litigation marks the start of a new chapter in the decadeslong fight to get women’s rights into the Constitution.
ERA advocates knew finally getting women into the Constitution would be a struggle, but the timing of the GOP’s Alabama lawsuit still was surprising.
“We didn’t anticipate any states being opposed to women’s equality,” said Wendy Murphy, the Boston-based professor and lawyer who represents Equal Means Equal and filed the Massachusetts suit. She said advocates didn’t expect to be in court so soon.
“It’s kind of disturbing that in 2020 that any state would spend resources trying to maintain women’s second-class citizenship in this country,” she said.
Some Democratic attorneys general also put out a strong statement on Tuesday, lambasting their Republican counterparts for being on the wrong side of history.
“This preemptive lawsuit is a blatant effort to thwart our democracy and block women from gaining Constitutional equality, which is already long overdue,” reads the statement, released by the executive committee of the Democratic Attorneys General Association. “We urge our colleagues from across the aisle to reconsider this wrongheaded waste of taxpayer dollars. It’s 2020, not 1920.”
Short But Contentious
The ERA is actually just one sentence: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
The only mention of women’s rights in the Constitution is in the 19th amendment, ratified a century ago, which gave women the right to vote. (Although voter suppression tactics in the Jim Crow South effectively barred Black women from voting for decades longer.)
By finally putting equality for women into the Constitution, the ERA would expand legal protections against sexual discrimination. And that’s just for starters. It takes decades to take a one-sentence amendment and iron out its meaning in the courts and legislature.
Still, that one sentence was apparently enough to trigger the three GOP attorneys general.
The attorneys general claim that while they are “committed to equality,” passing the ERA would be a bridge too far ― because it would lead to more abortion rights and pave the way for equal rights regardless of sexual orientation, a common argument of equality opponents.
However, it’s not clear at all that the ERA would lead to those issues, which would have to be voted on or litigated.
The GOP argument really hinges on 1982. That year was the cutoff for ratification set by Congress back in the 1970s ― after that, ratification was presumed impossible. And by then, the ERA had fallen three states short of ratification.
In recent years, however, activists have revived the ERA, believing that the deadline issue can be overcome. They’ve fought to get three more states to ratify. Nevada did in 2017. Illinois in 2018. And Virginia in the coming weeks.
Murphy and some ERA proponents argue that the deadline set by Congress for ratification is unconstitutional. They point out that the last time the Constitution was amended, more than 200 years lapsed from proposal to ratification.
Meanwhile, there’s legislation in the House, introduced in 2017, that would simply extend the deadline. That bill has little shot of getting through the current Senate, however.
Arguments about the deadline are just a strategy to skirt the real issue: a long-overdue guarantee of equality for women, said Mark Herring, the Democratic attorney general of Virginia.
Opponents women’s equality are always going to try and come up with arguments against the ERA, he said, waving off what he called Republican scaremongering over what the ERA would mean.
“The ERA should have been passed and ratified a long time ago and the fact that it’s 2020 and some states are trying to block equality from the Constitution is repugnant,“ he said, adding that litigation was not out of the question. “We will do everything we can to make sure it’s part of the Constitution.”
The fact that it’s 2020 and some states are trying to block equality from the Constitution is repugnant. Virginia Attorney General Mark Herring (D)
Republican opposition to the ERA is going to be a pivotal issue for Democratic AG candidates in the coming elections in 2020, Sean Rankin, executive director of the Democratic Attorneys General Association, told HuffPost on Tuesday.
“I think in 2020 the fact that there are people that don’t believe [equality] should be enshrined in the Constitution is a little bit of a mind bender,” he said. “And I think from the campaign side this is something that we’ll be able to spend the next 10 months talking about.”
Getting People Talking
Advocates expect the fight to finally get this amendment over the finish line will be bruising, but they welcome getting an issue as critical as women’s rights back into the national conversation where it belongs.
“For so long, ERA advocates have been on the fringes,” said Kate Kelly, a lawyer and equal rights activist. Now they’ll finally have to be taken seriously.
Even if ERA proponents pull this off, getting the amendment into the Constitution is just a first step, Kelly said. It takes time ― if not decades or centuries ― for the meaning of amendments to become clear. If it becomes law, courts and legislators will be figuring out the ERA for years to come.
Right now the key issue is ― what happens when Virginia ratifies? Until Wednesday, the answer to that question was within the purview of the National Archives and Records Administration, the agency responsible for registering ratifications and the actual defendant in the lawsuits filed by the AGs and the activists.
The department, even under Trump, has registered the recent ERA ratifications from Nevada and Illinois. The difference now, of course, is that registering the 38th state’s ratification would mean the amendment gets into the Constitution. This time is for real.
In light of the litigation― with one side saying to greenlight the ERA and the other saying to block it ― the agency in a statement that it wouldn’t act until it got guidance from the Justice Department.
On Wednesday, the Justice Department gave its answer: No ERA.
“Because Congress lawfully conditioned the States’ ratification of the ERA upon a deadline, and because the deadline expired, the proposed amendment has necessarily failed,” the Office of Legal Counsel said in a 38-page opinion released in Wednesday afternoon.
Activists are not daunted. “This OLC opinion is not binding on Congress, the courts, or the states that have expressed their ongoing will to give women constitutional equality,” the ERA Coalition said in a statement to CNN.
“It is wholly unsurprising that the Trump Administration has found yet another way to oppose women’s equality,” Herring said in a statement Wednesday.
Murphy said she expects to see more litigation from activists filed in other states as this heats up.
“We don’t expect Alabama to be favorable to women. we don’t expect the Trump administration to be favorable to women. But they don’t speak for the entire country,” she said.