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3 states ask judge to declare Equal Rights Amendment part of the Constitution

The most recent states to ratify the ERA — Virginia, Illinois and Nevada — filed a lawsuit in federal district court in Washington, D.C.
A supporter of the Equal Rights Amendment reacts during a hearing at the Virginia State Capitol in Richmond on Jan. 9, 2020.Steve Helber / AP

WASHINGTON — Three states urged a federal judge Thursday to declare that the proposed Equal Rights Amendment is now part of the U.S. Constitution, after Virginia this week became the 38th state to ratify it.

Originally proposed in 1972, passed overwhelmingly in both houses of Congress, and endorsed by then-President Richard Nixon, it would amend the Constitution to add this provision: "Equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex." It would also give Congress the power to pass laws enforcing the provision.

Article V of the Constitution provides that once approved by Congress, a proposed amendment is adopted if it is ratified by three-fourths of the states. Virginia's vote Jan. 27 would seem to put the ERA over the finish line, but the Justice Department said the vote came too late.

In proposing the amendment, Congress had said the ERA would become valid when ratified by the required number of states "within seven years from the date of submission by the Congress." Another congressional vote extended that deadline, but only by three years, to 1982. Further complicating the issue, five states have voted to rescind their ratification votes.

The three most recent states to ratify the amendment — Virginia, Illinois and Nevada — filed a lawsuit Thursday in federal district court in Washington, D.C. They argued that the Constitution does not give Congress the power to set a time limit on the ratification process. And they said the deadline was placed only in the proposing clause, not in the actual text that the states voted on.

"The work is done, every constitutional requirement has been fulfilled, and the ERA is now the 28th amendment to the Constitution," Mark Herring, Virginia's attorney general, said at a news conference announcing the legal challenge. "I now have the great honor of picking up the baton from millions of citizens, advocates, organizations and others who have led this battle for generations."

The lawsuit also said the Constitution does not give states the authority to rescind their ratification. "Once a state has ratified a proposed amendment, that state has had its final say on the question."

But a 38-page opinion issued by the Justice Department's Office of Legal Counsel on Jan. 6 said the Supreme Court has upheld the authority of Congress to impose a ratification deadline. The opinion said it makes no difference that the deadline was in the resolution's proposing clause.

"The state legislatures were well aware of that deadline when they considered the resolution. We therefore do not believe that the location of the deadline alters its effectiveness," the opinion said.

The document suggested that Supreme Court Justice Ruth Bader Ginsburg agrees with the Justice Department's analysis. It noted that in a speech in September, she said that the ERA "fell three states short of ratification. I hope someday it will be put back in the political hopper, starting over again, collecting the necessary number of states to ratify it."

Supporters of the ERA are pushing for a vote in the House of Representatives next month to erase the deadline for ratification, but the Justice Department's opinion said that, too, would be invalid. "The Constitution authorizes Congress to propose amendments for ratification, but it does not contemplate any continuing role for Congress during the ratification period."

The ERA has been embraced by advocates of abortion rights. NARAL Pro-Choice America has said it would "reinforce the constitutional right to abortion" and "require judges to strike down anti-abortion laws."

Abortion opponents agree with that analysis and are fighting to prevent federal recognition of the amendment's ratification. It would put language in the Constitution that could be cited by abortion opponents who now rely on controversial Supreme Court rulings that the Constitution protects a right of privacy. "It would nullify any federal or state restrictions, even on partial-birth or third-trimester abortions," the National Right To Life Committee said.

The final step in adding an amendment to the Constitution is carried out by a federal official known as the archivist of the United States. He has said he will not do anything to make the ERA the 28th amendment, given the Justice Department's position.

The lawsuit filed Thursday asks a federal judge to order him to do it. No matter how the judge rules, the case is likely headed to the Supreme Court.