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Virginia’s new AG pulls state from effort to recognize ERA ratification

Activists gather outside the White House to support the ratification of the Equal Rights Amendment in Washington, D.C., in January. (Jim Lo Scalzo/EPA-EFE/REX/Shutterstock)
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Virginia’s new Republican Attorney General ended a legal campaign to get the federal government to recognize the state’s ratification of the landmark Equal Rights Amendment, the long-running effort to enshrine women’s equality in the Constitution.

Attorney General Jason Miyares withdrew Friday from an appeal seeking to compel the U.S. archivist to certify that Virginia, Illinois and Nevada — the final three states needed for the amendment’s approval — had properly certified it.

Miyares’s decision is a blow to the movement to add the ERA to the Constitution, but the effort also faces a number of other unanswered legal questions and hurdles before it might become the law of the land. The amendment declares “equality of rights under the law shall not be abridged or denied … on account of sex.”

Victoria LaCivita, communications director for Miyares, said in a statement the attorney general’s move was not about the merits of the amendment, adding Miyares’s Democratic predecessor, Mark Herring, who pushed the lawsuit, was on shaky legal ground.

“Considering that a Democrat appointed judge, and the Biden administration all concluded that the deadline to ratify the ERA passed decades ago, Virginia will no longer participate in the ERA lawsuit with Illinois and Nevada,” LaCivita said. “Any further participation in this lawsuit would undermine the U.S. Constitution and its amendment process.”

Virginia became the 38th and final state needed for the passage of the ERA when it ratified the amendment in 2020 in a bipartisan vote, but it came decades after a 1982 deadline set by Congress for the necessary three-quarters of states to approve a constitutional amendment.

Virginia passes Equal Rights Amendment in historic vote

It was still a significant victory for women’s groups who had spent nearly 100 years pushing for its passage, and many celebrated in Richmond. The ERA was first proposed in 1923, but it wasn’t initially passed by Congress until 1972 when it enjoyed broad bipartisan support. The effort has advanced in fits and starts since then among the states.

The same month Virginia acted on the ERA, the Justice Department under President Donald Trump issued an opinion asserting that the state had missed the 1982 deadline for ratification and the whole constitutional amendment process had to begin anew. The U.S. archivist, who is responsible for certifying constitutional amendments, cited the opinion in declining to recognize Virginia’s ratification.

Virginia, along with Illinois and Nevada, states that had also passed the ERA in recent years, soon sued the U.S. archivist in federal court in D.C. to force him to recognize the passage of the amendment, arguing the Constitution places no deadlines on approving constitutional amendments.

Last year, U.S. District Judge Rudolph Contreras, a Barack Obama appointee, called the state’s efforts to pass the ERA “laudable,” but said it missed the 1982 deadline and dismissed the lawsuit. The states then appealed the ruling to the D.C. Court of Appeals where it remained when Miyares decided to pull Virginia from it Friday. Illinois and Nevada will continue with the lawsuit.

In January, the Biden administration’s Office of Legal Counsel found the deadline had passed for ERA ratification. Jeff Ryer, a spokesman for the Senate Republican caucus, also pointed out “no less than the late Justice Ruth Bader Ginsburg clearly stated that the process had to start over.”

Virginia Democrats attacked Miyares’s decision.

Del. Eileen Filler-Corn (D-Fairfax), who became the first female speaker of Virginia’s House of Delegates when Democrats took control of the chamber two years ago, said it was in keeping with recent moves by the state’s new Republican leadership.

“Governor Youngkin and Virginia Republicans are once again trying to subvert the will of the legislature and the people of Virginia by opposing the ERA, restoration of rights for returning citizens, and the removal of outdated anti-marriage language in our constitution,” Filler-Corn said. “Their focus on radical right-wing social policy over good governance threatens our reputation as an open and welcoming state for business.”

State Sen. Jennifer L. McClellan (D-Richmond), who carried the ERA bill in Senate along with Sen. Mamie E. Locke (D-Hampton), called Miyares’s move an “unfortunate political decision” that does nothing to “change the history that Virginia made in 2020, becoming the 38th state to ratify the ERA.”

“We came together across gender, party, racial and generational lines to guarantee equity under the law. For my family, my Commonwealth, and my country, it has been a long march toward equality,” McClellan said in a statement.

The never-ending fight over whether to include the Equal Rights Amendment in the Constitution

Conservative groups lauded Miyares, saying the ERA would do the opposite of what it set out to accomplish.

The Alliance Defending Freedom (ADF), a legal advocacy group that pushes for “religious freedom,” said in a statement that the ERA was unnecessary because the constitution already grants equal rights to men and women.

ADF said the term “sex” could be misinterpreted to allow men to compete on women’s sports teams and access facilities designated for women like domestic violence shelters. They also worry the ERA could be used to justify using federal tax dollars to pay for abortions.

“Rather than advancing equality, the ERA actually jeopardizes the many gains women have made in employment, education, and sports,” said ADF general counsel Kristen Waggoner.

Loyola Marymount University constitutional law professor Jessica Levinson said Virginia’s decision to withdraw from the case will likely have little legal impact, but it could sway the court’s read on popular opinion.

The courts, she said, often try to move in step with what the majority wants — but the decades of changing positions on the ERA since the ratification effort was first launched have fueled a perception of indecision.

“When you see states pulling away from the idea that this needs to be part of the Constitution, that just adds more fuel to the fire,” Levinson said. “To the extent that this resembles states running away from this push, it could matter,” Levinson said.

The ERA also faces additional legal issues. Five states have rescinded their approval of the amendment over the years and it’s legally murky whether they can do that or not.

The former attorney general, Herring, wrote in a tweet that Virginia made history with the ERA and it should be recognized.

“Women shouldn’t have to wait any longer for equality,” Herring wrote.