Judge deals blow to expired Equal Rights Amendment

A federal judge on Friday dismissed a lawsuit filed by three Democratic state attorneys general that had sought to force the federal government to recognize Virginia’s vote last year to ratify the Equal Rights Amendment and add it to the Constitution.

Shortly after Virginia became the 38th state to ratify the amendment that supporters said will guarantee women equal rights under the law, the archivist of the United States declared he would take no action to certify the amendment’s adoption, citing an opinion from the Department of Justice under the Trump administration.

Constitutional amendments must be ratified by three-quarters of the states, or 38, but Congress enacted a ratification deadline for the ERA that expired decades ago.

In a ruling Friday night, U.S. District Judge Rudolph Contreras said that Nevada, Illinois and Virginia’s motives were “laudable” but that they came too late because Congress set deadlines for ratifying the ERA long ago. Contreras also said the Archivist’s publication and certification of an amendment are “formalities with no legal effect” so the archivist’s failure to do that doesn’t cause harm and there’s no standing for the states to sue.

In their lawsuit, Virginia Attorney General Mark Herring, Nevada Attorney General Aaron Ford and Illinois Attorney General Kwame Raoul argued that the deadline, which was first set for 1979 and extended to 1982, was not binding.

Herring said in a statement after the judge’s ruling that he is not giving up the fight and is considering an appeal, hopeful of backing from Democrat Joe Biden’s administration and Congress.

The U.S. Department of Justice, which represented the archivist of the United States David Ferriero, declined to comment. An emailed message seeking comment from the press office of the National Archives and Records Administration was not immediately returned.

In a January 2020 opinion, the Justice Department said it was too late for states to sign off because of the deadline set by Congress decades earlier.

Ford said in a statement Friday that women have always been endowed with equal rights but it’s past time for the country to recognize that.

“Unfortunately, today’s decision requires women to continue waiting. Though I’m disheartened by this decision, all women can rest assured that, regardless of this court’s decision, my fight for your equal rights does not end today, tomorrow, or any day,” he said.

The ERA states, in part, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

Supporters contend the amendment would offer stronger protections in sex discrimination cases and give Congress firmer ground to pass anti-discrimination laws, among other protections. Opponents of the measure warn it could be used to erase protections such as workplace accommodations during pregnancy.

Anti-abortion activists worry that the amendment could be used by supporters of abortions rights to eliminate abortions restrictions on the grounds that they discriminate against women.

STEVE HELBER/AP FILE Supporters of the Equal Rights Amendment cheer a ratification vote last year by the Virginia legislature, which a federal judge says was decades too late.