Nevada Attorney General Aaron Ford has joined the attorneys general of Virginia and Illinois in filing a lawsuit seeking to force the recognition of the Equal Rights Amendment (ERA) as the 28th Amendment to the U.S. Constitution.
The ERA would dictate that no rights could be denied or abridged “on account of sex.” A constitutional amendment must be approved by two-thirds of both the House and Senate and ratified by three-fourths of the states, or 38. In January Virginia become the 38th state to ratify the ERA. Illinois was the 37th in 2018 and Nevada the 36th in 2017.
The problem is that Congress set a 1982 deadline for ratification. Further, five states have since rescinded their ratifications.
The lawsuit argues that Article 5 of the Constitution, spelling out the amendment process, does not permit either a deadline or rescinding of ratification.
The suit asks the U.S. District Court for the District of Columbia to declare the amendment valid and order U.S. Archivist David Ferriero to certify the ERA as such.
Ferriero has refused to certify the amendment since receiving a Justice Department opinion stating Congress has the right to impose a deadline, citing a 1921 case in which the Supreme Court found that Congress was within its authority to impose a seven-year deadline for passage of the 18th Amendment, which established Prohibition.
Nonetheless, the 18-page suit contends Article 5 does not allow imposing such deadlines on the states, nor does it allow rescinding ratification.
During a conference call this past week announcing the filing of the lawsuit, Attorney General Ford declared, “Let me begin by saying something that I firmly believe and I have always believed, and that’s that women have always been endowed with equal rights, even though our country has wrongly failed to recognize them. These rights are entitled to the rightful place in the Constitution, and I am committed to ensuring that they are permanently written to our nation’s history in its features. Advancing civil rights is one of my administration’s main areas of focus. It is a focus I have communicated to all the members of my office the second day on my job. Today I’m proud to file this lawsuit on behalf of women in Nevada, women all over the country. The gravity of this moment should not be underplayed.”
Ford quoted the key portion of the amendment, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
He pointed out that the original text of the Constitution did not even refer to women, and the only known use of the pronoun “she” in the Framers’ deliberations appeared in an ultimately rejected clause referring to fugitive slaves.
The ERA was first proposed in 1923, Ford recalled, and was backed by feminists in the late 1960s and early 1970s, including his mother Denise Claiborne, who saw ratification as the only clearcut way to eliminate all legal gender-based discrimination in the United States.
“Opponents of the time viewed ratification of the Equal Rights Amendment as a move that would unravel what they called the traditional American society,” Ford continued. “It would unravel what they called protective laws like related to sexual assault and to alimony. … The tendency for a mother to receive child custody in a divorce case would be eliminated. The all-male military draft would be rendered unconstitutional. And those opposed to the ERA even suggested that single-sex restrooms could be outlawed by future courts.”
Frankly, in addition to the questions about whether the ERA should be recognized, those concerns Ford cited are far more real and possible today than when the ERA passed Congress in 1972.
In an era in which males who “identify” as females are granted access to women’s restrooms, locker rooms and allowed to compete in women’s athletics is it too far fetched to envision the courts interpreting the ERA as requiring gender neutral policies that sacrifice privacy and safety?
Might women have to register for the draft? Might the ERA eviscerate Title IX, which has increased opportunities for female athletes? What would become of the Violence Against Women Act and the Women, Infants and Children welfare program? What about accommodations in the workplace for pregnant women?
The ERA could also end any reasonable restrictions on abortions.
If courts side with these attorneys general, Congress and the states might soon have to consider an amendment repealing the ERA.