The U.S. House

Se­nate is not ex­pected to follow suit as le­gal chal­lenges con­tinue

The Washington Post - - FRONT PAGE - BY PA­TRI­CIA SUL­LI­VAN pa­tri­cia.sul­li­[email protected]­post.com

voted to re­move a 1982 dead­line to rat­ify the Equal Rights Amend­ment, but it faces le­gal chal­lenges and a Se­nate un­likely to follow suit.

The U.S. House gave the Equal Rights Amend­ment a tem­po­rary new lease on life Thurs­day by vot­ing to re­move a 1982 dead­line for rat­i­fi­ca­tion by the states.

The 232-to-183 vote, on a res­o­lu­tion in­tro­duced by Rep. Jackie Speier (D- Calif.), pushes the is­sue to the Se­nate, where Sens. Ben Cardin (D-MD.) and Lisa Murkowski (R-alaska) have in­tro­duced a sim­i­lar mea­sure.

Dur­ing de­bate on the House floor, Repub­li­cans leaned on an­tiabor­tion and con­sti­tu­tional ar­gu­ments to op­pose the ERA, ar­gu­ing that en­shrin­ing pro­tec­tions for women in the Con­sti­tu­tion would mean abor­tion could not be re­stricted. Democrats fo­cused on the le­gal­ity of dead­lines and the im­por­tance of equal rights.

“This has noth­ing to do with the abor­tion is­sue. That is an ex­cuse, not a rea­son,” said House Speaker Nancy Pelosi (D- Calif.), ar­gu­ing that women are still paid less than men for sim­i­lar work, and of­ten are shorted on pen­sions and ma­ter­nity leaves.

The Demo­cratic side of the House floor erupted in cheers once enough votes were cast to en­sure the res­o­lu­tion would pass. Repub­li­can Reps. John Cur­tis (Utah), Rod­ney Davis (Ill.), Brian Fitzpatric­k (Pa.), Tom Reed (N.Y.) and Jeff Van Drew (N. J.) joined 227 Democrats in vot­ing for it.

Pelosi and some other fe­male law­mak­ers wore pur­ple to show their sup­port for the long-sought amend­ment, which was first pro­posed nearly a cen­tury ago.

But it will take more than color co­or­di­na­tion to en­act the ERA.

Three-quar­ters of the states must rat­ify a pro­posed amend­ment for it to be added to the Con­sti­tu­tion. With new Demo­cratic ma­jori­ties in both cham­bers, the Vir­ginia Gen­eral As­sem­bly met that thresh­old last month, be­com­ing the 38th state to rat­ify the ERA.

Sup­port­ers of the amend­ment say Congress’s dead­line can be changed by a sim­ple vote of the same body, be­cause the Con­sti­tu­tion it­self does not spec­ify a rat­i­fi­ca­tion dead­line. Oth­ers dis­agree.

In an­tic­i­pa­tion of Vir­ginia’s vote, the Jus­tice De­part­ment’s Of­fice of Le­gal Coun­sel ad­vised the na­tional ar­chiv­ist not to cer­tify the rat­i­fi­ca­tion be­cause of the ex­pired dead­line.

Three law­suits have been filed over the ERA, in­clud­ing one last month by the at­tor­neys gen­eral of Illi­nois, Ne­vada and Vir­ginia, call­ing for its ad­di­tion to the Con­sti­tu­tion. A law­suit op­pos­ing rat­i­fi­ca­tion was filed in Alabama last year by the at­tor­neys gen­eral of Alabama, Louisiana and South Dakota. A third law­suit filed in Mas­sachusetts in Jan­uary sup­ports rat­i­fi­ca­tion.

At least one of the le­gal chal­lenges is ex­pected to end up at the U.S. Supreme Court.

The ERA, first pro­posed in Congress in 1923, was rein­tro­duced ev­ery year un­til it passed in 1972. Its 1979 rat­i­fi­ca­tion dead­line was ex­tended to 1982 af­ter only 35 states rat­i­fied it. But no oth­ers rat­i­fied the mea­sure be­fore the sec­ond dead­line passed.

The ERA was con­sid­ered dead un­til 1992, when the 27th Amend­ment, which ad­dresses the pay for mem­bers of Congress, was rat­i­fied 202 years af­ter it was in­tro­duced. Un­like the ERA and other amend­ments pro­posed in the 20th cen­tury, it had no dead­line for rat­i­fi­ca­tion.

Ne­vada’s leg­is­la­ture en­dorsed the ERA in 2017, fol­lowed by Illi­nois in 2018.

But five states that rat­i­fied the amend­ment in the 1970s have since said they wanted to re­scind their votes. ERA pro­po­nents say those ac­tions are moot, be­cause re­ver­sals have not been al­lowed in the past, while op­po­nents say it’s a clear sig­nal of the will of the states.

Supreme Court Jus­tice Ruth Bader Gins­burg, a long­time ERA ad­vo­cate, told an au­di­ence at Ge­orge­town Univer­sity Law School this week that she thinks ERA ac­tivists should start over.

“There’s too much con­tro­versy about late­com­ers,” Gins­burg said. “Plus, a num­ber of states have with­drawn their rat­i­fi­ca­tion. So if you count a late­comer on the plus side, how can you dis­re­gard states that said, ‘We’ve changed our minds’?”

Repub­li­cans on the House floor Thurs­day re­peat­edly quoted the jus­tice’s words as they mar­shaled ar­gu­ments against the amend­ment.

Rep. Dou­glas A. Collins (R- Ga.) said the ERA would al­low un­fet­tered ac­cess to abor­tion, which he said could jeop­ar­dize fe­tuses with chronic, de­bil­i­tat­ing dis­eases. He noted his 27-year-old daugh­ter Jor­dan was born with spina bi­fida. “This is an open door to abor­tion on de­mand with no re­stric­tions, no gov­ern­ment in­ter­fer­ence. In fact, gov­ern­ment would pay for it,” an emo­tional Collins said.

Rep. Jer­rold Nadler (D-N.Y.) pointed out that abor­tion is, in fact, le­gal now, and has been since the Roe v. Wade case was de­cided in 1973.

De­spite ar­gu­ments that the 14th Amend­ment to the Con­sti­tu­tion, which guar­an­tees rights to all cit­i­zens, pro­tects women’s equal­ity, Rep. Carolyn B. Maloney (D-N.Y.) said those rights are elu­sive with­out the ERA. “We’ve seen it when the Supreme Court gut­ted the Vi­o­lence Against Women Act, we’ve seen it when judges don’t en­force equal pay for equal work, or when a fed­eral judge ruled that Congress didn’t have the au­thor­ity to out­law fe­male gen­i­tal mu­ti­la­tion,” she said.

Stu­dents for Life Ac­tion, which calls it­self the na­tion’s largest youth or­ga­ni­za­tion that op­poses abor­tion, fo­cused its ad­vo­cacy on the Repub­li­can-ma­jor­ity Se­nate on Thurs­day, de­liv­er­ing anti-era pe­ti­tions to that cham­ber.

Kris­tan Hawkins, pres­i­dent of the group, said the ERA should not be al­lowed to “sneak its way” into the Con­sti­tu­tion.

“I think it’s un­nec­es­sary,” Hawkins said in an in­ter­view. “This was sup­posed to be dead three years be­fore I was born.”

Oth­ers cel­e­brated the res­o­lu­tion’s pas­sage, in­clud­ing the non­par­ti­san League of Women Voters, which is cel­e­brat­ing its 100th an­niver­sary Fri­day.

“I can’t think of a bet­ter birth­day present than this clear progress to­wards a more equal democ­racy for women,” said the league’s pres­i­dent, Chris Carson. “The ERA will pave the way for fur­ther leg­isla­tive progress to­wards gen­der equal­ity and will al­low the courts to closely scru­ti­nize sex-based dis­crim­i­na­tion.”

The ERA Coali­tion, which has cham­pi­oned the mea­sure for six years, said in a state­ment af­ter the vote: “We’re thrilled the House re­moved the so-called time limit. We hope the Se­nate will soon follow.”

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