Justice Dept. Seeks Dismissal of Equal Rights Amendment Suit

May 19, 2020 by Tom Ramstack
The Robert F. Kennedy Department of Justice Building. (Photo by Dan McCue)

WASHINGTON – The Trump administration is attempting to get a lawsuit dismissed that seeks to add the Equal Rights Amendment to the U.S. Constitution.

A Justice Department motion to dismiss filed last week says the deadline expired for states to ratify the amendment to protect women’s rights.

The original summer 1979 deadline was set by Congress after the amendment was proposed in 1971. Congress approved it then turned it over to the states for ratification, tacking on an extra three years to the deadline until 1982.

It failed to meet the required two-thirds threshold until the vote in January by the Virginia General Assembly.

The lawsuit by three state attorneys general says the Virginia General Assembly’s ratification of the amendment takes precedence over the deadline.

In other words, the fact that the required 38 states have now ratified the amendment means it should be added to the Constitution, regardless of any arbitrary deadline set by Congress.

The Justice Department disagreed in its motion filed in U.S. District Court for the District of Columbia.

The motion says “this deadline, like those for many other proposed amendments, precludes ratification of the ERA based upon votes that occurred after the deadline.”

The motion also says that states should enforce women’s rights themselves rather than trying to add an amendment to the Constitution.

“Even if there were a role for a court to play in the ratification process, it would not be implicated here, in a case brought by states that have the independent authority to act (or have indeed already acted) to protect their residents against sex discrimination in the manner they believe the ERA requires,” the Justice Department motion says.

The lawsuit was filed by the attorneys general of Virginia, Illinois and Nevada. The Justice Department says the federal court lacks authority to rule on their plea.

“That request is contrary to Supreme Court precedent prohibiting courts from second-guessing the legislature’s inclusion of a deadline for ratification,” the Justice Department motion says.

The lawsuit is filed against the Archivist of the United States, who is tasked by federal law with certifying constitutional amendments. The Archivist’s office said in a statement that it “defers to [the Justice Department] on this issue…”

Virginia Lieutenant Governor Mark Herring criticized the Trump administration’s opposition.

“Donald Trump is telling the women of America that, after 231 years, they should just sit down and wait even longer for equal treatment under the Constitution. It’s wrong, it’s offensive and it’s shameful,” Herring said in a statement.

In February, the U.S. House approved a measure to remove the deadline. The bill has not won approval in the Senate.

The proposed amendment 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.”

The predominantly Democratic supporters say the amendment would protect women’s rights to equal pay and prevent job discrimination if they are pregnant.

Many Republicans criticize the amendment for its implied endorsement of abortion rights.

Under a separate idea supported by Supreme Court Justice Ruth Bader Ginsburg and some lawmakers, Congress would get rid of the current proposed amendment and begin again with another one.

Ginsburg said that since state lawmakers voted in the 1970s, some state legislatures have changed their minds. Idaho, Kentucky, Nebraska, South Dakota and Tennessee have all rescinded their ratification votes.

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