ERA rat­i­fi­ca­tion runs into di­verse op­po­si­tion

Con­ser­va­tives, Jus­tice Gins­burg agree equal rights vote is too late.

Los Angeles Times - - THE NATION - By David G. Sav­age

WASH­ING­TON — When Vir­ginia last month be­came the 38th state to ap­prove the Equal Rights Amend­ment, the con­sti­tu­tional process launched by Congress in 1972 ap­peared to fi­nally have what it needed for rat­i­fi­ca­tion.

It seemed fit­ting in 2020 to en­shrine in the Con­sti­tu­tion the prin­ci­ple of full equal­ity for women on the 100th an­niver­sary of the 19th Amend­ment, which gave women the right to vote.

But the cel­e­bra­tion has been chilled by op­po­si­tion — not only from con­ser­va­tives and the Trump ad­min­is­tra­tion, but also from Jus­tice Ruth Bader Gins­burg, who was a pi­o­neer­ing ad­vo­cate for women’s equal­ity in the 1970s.

Op­po­nents have ar­gued that rat­i­fi­ca­tion by the re­quired 38 states has come too late — decades past the 1982 dead­line set by Congress — and amid le­gal ques­tions that would likely tie up the amend­ment in courts and erode its le­git­i­macy.

And the dis­pute has be­come en­tan­gled in the pol­i­tics of abor­tion. The Na­tional Right to Life Com­mit­tee and some Repub­li­can law­mak­ers say the ERA could be wielded to strike down laws lim­it­ing abor­tion or bar­ring the use of tax­payer funds to pay for abor­tions for low-in­come women.

It’s un­clear not only whether Vir­ginia’s rat­i­fi­ca­tion is valid, but also who would make that de­ci­sion. Some say it is up to Congress. Oth­ers say it is up to judges and ul­ti­mately the Supreme Court. Ne­vada was the 36th state to rat­ify, in 2017, and Illi­nois was the 37th, in 2018.

The Jus­tice De­part­ment’s Of­fice of Le­gal Coun­sel is­sued a 38-page opinion last month that told the Na­tional Ar­chives and Records Ad­min­is­tra­tion it should not cer­tify the ERA as the 28th Amend­ment. The ar­chiv­ist, who is a his­to­rian and a li­brar­ian, has the le­gal duty to cer­tify and pub­lish new amend­ments to the Con­sti­tu­tion.

The opinion fo­cused on the joint res­o­lu­tion adopted by more than two-thirds of the House and Se­nate in 1972. It said the Equal Rights Amend­ment shall be­come part of the Con­sti­tu­tion “when rat­i­fied by the leg­is­la­tures of three-fourths of the sev­eral states within seven years from the date of its sub­mis­sion by the Congress.” The dead­line was later ex­tended to 1982.

The text of the pro­posed amend­ment said: “Equal­ity of rights un­der law shall not be de­nied or abridged by the United States or by any state on ac­count of sex.” A sec­ond pro­vi­sion said Congress “shall have the power to en­force” the new amend­ment “by ap­pro­pri­ate leg­is­la­tion.”

Twenty-two states in­clud­ing Cal­i­for­nia rat­i­fied the ERA in 1972, and the to­tal reached 35 in 1977. But no ad­di­tional states rat­i­fied by 1982.

But in an­other le­gal twist, five states — Ken­tucky, Ne­braska, Ten­nessee, Idaho and South Dakota — voted in the 1970s to re­voke their rat­i­fi­ca­tions. It is un­clear and un­re­solved by the courts whether states may re­scind a rat­i­fi­ca­tion vote.

The Jus­tice De­part­ment said it did not mat­ter. “Re­gard­less of the con­tin­u­ing va­lid­ity of the five states’ rat­i­fi­ca­tions, three-fourths of the states did not rat­ify the amend­ment be­fore the dead­line that Congress set for the ERA res­o­lu­tion, and there­fore the 1972 ver­sion of the ERA has failed ... and has ex­pired.”

The opinion cited com­ments by Gins­burg that sup­ported the idea that the win­dow for rat­i­fy­ing the 1972 ERA had closed. Not­ing in Septem­ber that the ERA “fell three states short of rat­i­fi­ca­tion,” she said, “I hope some­day it will be put back in the po­lit­i­cal hop­per, start­ing over again, col­lect­ing the nec­es­sary num­ber of states to rat­ify it.”

On Thurs­day, House Democrats, led by Reps. Jackie Speier of Cal­i­for­nia and Carolyn B. Maloney of New York, ap­proved a res­o­lu­tion to waive the time limit set in the 1972 res­o­lu­tion. They ar­gue that Congress was free to in­clude the time limit in 1972, and it is also free to lift it now. They also point out the states ap­proved the text of the amend­ment, which does not con­tain a time limit.

But prospects for pas­sage in the Se­nate are dim. Se­nate Ma­jor­ity Leader Mitch McCon­nell (R-Ky.) has given no sign he will bring up the leg­is­la­tion.

And on Mon­day, Gins­burg spoke at the Ge­orge­town Univer­sity Law Cen­ter and re­peated her view that the re­cent rat­i­fi­ca­tions came too late. “There is too much con­tro­versy about late­com­ers,” she said in re­sponse to a ques­tion. The votes by Vir­ginia, Illi­nois and Ne­vada came “long af­ter the dead­line passed .... I would like to see a new be­gin­ning. I’d like it to start over.”

Women’s rights ad­vo­cates are re­luc­tant to crit­i­cize Gins­burg, but they dis­agree with her view on the sig­nif­i­cance of the dead­line.

“It is ul­ti­mately up to Congress, not the courts, to de­cide whether the ERA has been rat­i­fied,” said Julie C. Suk, dean for the master’s pro­grams at the City Univer­sity of New York. In two de­ci­sions early in the 20th cen­tury, the Supreme Court left it to Congress to de­cide whether to in­clude a dead­line for rat­i­fy­ing a con­sti­tu­tional amend­ment and whether to deem an amend­ment was rat­i­fied in a rea­son­able time pe­riod. “Put to­gether, these prece­dents sup­port Congress’ power to lift a dead­line im­posed by a pre­vi­ous Congress,” she said.

States on both sides of the dis­pute have gone to court. Two weeks ago, state at­tor­ney gen­er­als for Vir­ginia, Illi­nois and Ne­vada sued David Fer­riero, the na­tional ar­chiv­ist, seek­ing a rul­ing that would de­clare the ERA “has be­come the 28th Amend­ment to the U.S. Con­sti­tu­tion.” In De­cem­ber, the state at­tor­neys for Alabama, Louisiana and South Dakota sued seek­ing a rul­ing to pre­vent the ar­chiv­ist from “il­le­gally adding the long-failed ERA” to the Con­sti­tu­tion.

The abor­tion is­sue has spurred new op­po­si­tion from Repub­li­cans.

“We’ve been con­cerned about this for a long time,” said Dou­glas D. John­son, a vet­eran policy ad­vi­sor for the Na­tional Right to Life Com­mit­tee. “They used to say this was a right-wing scare tactic, but we have seen many state­ments re­cently from pro-abor­tion­rights ad­vo­cates who say they would use the ERA as a pro-abor­tion le­gal weapon.”

He cites as an ex­am­ple NARAL Pro-Choice Amer­ica in its “ERA-YES” cam­paign. It says the amend­ment “would re­in­force the con­sti­tu­tional right to abor­tion” and “would re­quire judges to strike down an­tiabor­tion laws be­cause they vi­o­late both the con­sti­tu­tional right to pri­vacy and sex­ual equal­ity.”

Many oth­ers say the ERA would cap the long drive for equal­ity for women. In 1964, Congress made it il­le­gal for em­ploy­ers to dis­crim­i­nate based on sex. A 1972 amend­ment ex­tended the ban on sex dis­crim­i­na­tion to schools and col­leges, while pre­serv­ing sep­a­rate sports teams for girls and boys.

Dur­ing the 1970s, the Supreme Court took up a series of cases brought by Gins­burg, then an at­tor­ney with the ACLU Women’s Rights Project, and struck down laws that per­mit­ted dis­crim­i­na­tion be­tween women and men. But the jus­tices stopped short of rul­ing squarely that equal rights un­der law may never be de­nied be­cause of sex.

Steve Hel­ber As­so­ci­ated Press

VIR­GINIA Lt. Gov. Justin Fair­fax con­grat­u­lates state Se­nate Pres­i­dent Pro Tem­pore Louise Lu­cas af­ter the vote for the 1972 Equal Rights Amend­ment.

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