Appeals Court Blocks Effort to Revive Equal Rights Amendment

WASHINGTON — A federal appeals court this week blocked possibilities for the Equal Rights Amendment to make it into the U.S. Constitution anytime soon by saying states that ratified it in 2020 were too late.

Although the Equal Rights Amendment lost in court, there still could be legislative action to revive it. 

The amendment would outlaw sex discrimination, perhaps ensuring women’s rights to abortion, equal pay and greater legal protections from violence against women. 

The three-judge Circuit Court of Appeals in Washington, D.C., ruled that the legislatures of Illinois, Nevada and Virginia missed the deadline for ratification by decades. 

Congress approved the amendment in 1972 but set a deadline for at least three-fourths of the states to ratify it.

The National Archives and Records Administration refused to certify and publish the Equal Rights Amendment into the record in 2020 as part of the Constitution because of the missed deadline. The agency drew authority from a Justice Department interpretation of the archivist’s powers.

The states of Illinois, Nevada and Virginia sued in U.S. District Court for the District of Columbia. 

They argued that by meeting the threshold requirement for three-fourths of the states to ratify the amendment, it should become law. The deadline set by Congress that expired in 1982 was too arbitrary because it had no basis in the Constitution, their attorneys said.

They also called the congressional deadline a violation of 10th Amendment states’ rights.

The states’ renewed interest in the Equal Rights Amendment was an outgrowth of the Me Too movement against sexual harassment that gained notoriety in 2017 when several celebrity women went public with abuses they suffered.

The key part of the Equal Rights Amendment is Section 1, which says, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

Virginia became the 38th state to ratify the amendment, thereby reaching the three-fourths threshold required by Article V of the Constitution.

While the states’ lawsuit was pending, the amendment revived interest in Congress.

“You cannot put a time limit on women’s equality,” said Sen. Lisa Murkowski, R-Alaska.

The unanimous decision of the Circuit Court of Appeals agreed with the district court by saying the states were “unpersuasive” in arguing the congressional deadline was invalid. The authority implied by Article V gives Congress a right to set the “mode” of state ratification of amendments, including deadlines, the court said.

“In conclusion, the states have not clearly and indisputably shown that the archivist had a duty to certify and publish the ERA or that Congress lacked the authority to place a time limit in the proposing clause of the ERA,” the ruling said.

Other action on the Equal Rights Amendment is pending in Congress.

Last month, Democratic Rep. Ayanna Pressley of Massachusetts and Sen. Ben Cardin of Maryland introduced a joint resolution to eliminate the deadline for ratification.

The resolution drew a protest from the U.S. Conference of Catholic Bishops. They wrote a letter to Senate leaders warning that the amendment would encourage abortions.

“One consequence of the ERA would be the likely requirement of federal funding for abortions,” the letter said. “At least two states have construed their own equal rights amendments, with language analogous to that of the federal ERA, to require government funding of abortion.”

The case is State of Illinois and State of Nevada v. David Ferriero, Archivist of the United States et al, No. 21-5096, in the U.S. Circuit Court of Appeals for the District of Columbia, decided Feb. 28, 2023.

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