A panel of federal judges expressed skepticism Wednesday about two states’ effort to enshrine gender equality in the U.S. Constitution by getting the federal government to recognize the Equal Rights Amendment decades after it was considered dead.
The states are arguing that the deadline Congress set for ratification nearly three decades ago is an unconstitutional encroachment on state power. A lawyer for the Justice Department countered that, while the Biden administration agrees with the principles of the Equal Rights Amendment, the executive branch can’t unilaterally decide whether it is part of the Constitution.
“Our ratifications are not being given their intended effect,” said Jane Notz, solicitor general of Illinois.
The three-judge panel on the appeals court appeared open to the idea that states had the legal right to sue to force the U.S. archivist to certify and publish the Equal Rights Amendment. But they seemed less sure that their position was the right one, and that the amendment — which was proposed by Congress but needed ratification from three-quarters of the states — has become part of the U.S. Constitution.
“The legislative history seems to indicate that Congress only passed [the Equal Rights Amendment] because it did have this deadline,” Judge Robert L. Wilkins said. If the deadline wasn’t allowed, he asked, “Wouldn’t then the result be that we invalidate the proposed amendment, as opposed to just striking the deadline?”
The states disagreed, arguing that the deadline in the preamble to the amendment was simply unenforceable.
Judge Neomi Rao suggested that the states’ interpretation “seems to take us way down a slippery slope in terms of undermining Congress’s ability to propose amendments to the Constitution.”
Sarah Harrington, an attorney for the Justice Department, said that “the Biden administration supports the principles that are espoused in the ERA” but opposes the lawsuit.
“The ERA either is or isn’t part of the Constitution today, and nothing the archivist does can affect that,” she said. A person would have to claim that their rights under the ERA were violated to sue for its enforcement, she argued.
“We are obviously considering many parallel options on having this enforced,” Nevada Attorney General Aaron Ford (D) said after the hearing.
The ERA was considered moribund when it fell three states short of the threshold required for ratification, failing to meet both the original deadline of 1979 imposed by Congress and a three-year extension. Five states subsequently withdrew their approval.
The House, but not the Senate, has passed legislation to remove the deadline.
Supporters of the amendment now take the view that the deadline and the withdrawals were invalid, because the deadline was not in the amendment itself, and ratifications are final. Inspired by those arguments, three states ratified the amendment in the past five years — ending with Virginia, the crucial 38th state, in early 2020. To supporters, that means it went into effect this January.
But under the Trump administration, the U.S. archivist refused to certify the amendment, leading to a lawsuit by Virginia, Nevada and Illinois. President Biden’s nominee to run the National Archives and Records Administration has said she will stand by that decision unless a court or Congress orders her to do otherwise.
“The 28th Amendment exists,” said Kwame Raoul (D), the attorney general of Illinois. “The challenge is, if you’re putting a protection in our Constitution for discrimination based on sex, like any laws, people look to the books to know that they exist. There is meaning in publication.”
After the election of Republican Gov. Glenn Youngkin, Virginia withdrew from the suit, taking the position that the deadline for ratification has passed.
Douglas Johnson of the antiabortion National Right to Life Committee said he believes the panel “may have the courage to affirm the simple reality that the real ERA died decades ago,” which “would be a good thing for the rule of law.”
Every other constitutional amendment with a deadline has been ratified within the stated time frame. A federal district court judge last year found that while the ratification effort is “[l]audable,” it contradicted a “clear deadline” that “there is no doubt that Congress intended … to be binding.”
While sex discrimination is prohibited under federal law, the ERA would subject laws that differentiate between men and women to greater scrutiny. Both advocates and opponents believe that the ERA would have strengthened the argument for a constitutional right to an abortion, undone by the U.S. Supreme Court earlier this year.
Arguments in that case occurred before January, when advocates argue the ERA took effect. Advocates in North Carolina asked for time to argue that “the Court must consider the entire Constitution, which legally includes the 28th Amendment.” They were denied.