Virginia’s Equal Rights Lawsuit Shot Down by Federal Court

By Brian Carlton

March 6, 2021

Federal judge says the Equal Rights Amendment lawsuit was too little, too late.

WASHINGTON D.C.- In January 2020, Virginia became the 38th state to ratify the Equal Rights Amendment. Two days after the vote, Virginia Attorney General Mark Herring filed a lawsuit, along with the attorneys general from Nevada and Illinois. They asked a U.S. District Court judge to declare “that the Equal Rights Amendment has become the 28th Amendment to the U.S. Constitution.” On Friday, that judge delivered his answer. 

It wasn’t one Herring hoped to hear, however. In his written opinion, Judge Rudolph Contreras dismissed the case, saying the 2020 vote and following lawsuit were too late. 

“Congress set deadlines for ratifying the ERA that expired long ago,” Contreras wrote. “Plantiffs’ ratifications came too late to count.” 

The argument is one that’s been going on since Nevada, Illinois and Virginia became the 36th, 37th and 38th states to adopt the ERA. To pass an amendment to the Constitution, you need a few things to happen. First, the U.S. House and Senate have to sign off. In this case, it happened on Oct. 12, 1971. Everyone agrees on this point. It’s what comes after that causes debate. 

Is The ERA Dead? 

You need 38 out of the 50 states to ratify a constitutional amendment. By 1977, 35 states had done just that. But then Phyllis Schlafly came along. The conservative attorney argued that the ERA would hurt, not help women. 

The amendment states that “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Basically, the goal was to end any legal distinctions between men and women when it comes to divorce, employment, pay and a number of other issues. If a woman has the same job as a man, for example, the ERA makes it clear she should be paid the same. 

However, Schlafly laid out another argument. Gone would be separate bathrooms for men and women, she argued. Also, women would be put into the military draft, same as men. Schlafly also claimed the ERA would prevent women from getting alimony in divorce. And it would eliminate a court’s tendency to give custody of children to their mother if parents split up. Every proposal has opposition, but her movement caused five states to withdraw their approval. So instead of 35 states in support, you now had 30. That’s one of the points of contention. When people say Virginia was the 38th state to ratify, they’re including the five that withdrew. And then there’s the third requirement. 

States have to ratify the amendment by a deadline set by Congress. For the ERA, Congress originally set the approval deadline for 1979. Then they changed their mind in another session, extending the deadline to 1982. But despite attempts in nearly every session since then, Congress never extended the deadline. That means, in the eyes of the U.S. District Court, the ERA is dead. 

The Lawsuit Needs Two Things

In order to move forward, Judge Contreras said, Herring and the other attorneys needed two things. First, each of the three states would have to prove their ratification was still valid, even though the deadline expired roughly 40 years ago. Second, there’s the issue of the five states that withdrew their ratification. For the case to be heard, attorneys would have to convince the court those withdrawal decisions were invalid. 

“Only if both propositions are true would 38 (or three-fourths) of the states have ratified the amendment and triggered the Archivist’s duty to publish it,” Contreras wrote. 

The judge said the lawsuit didn’t achieve either of those conditions. The Archivist is allowed by federal law “to determine whether a ratification meets a deadline that Congress set,” Contreras said. And the Archivist has declared that the ERA doesn’t. In other words, the proposed amendment is dead.   

Speaking after the decision, Herring disagreed with the ruling and said he’s considering all options. 

“I am not giving up this fight and I will consider any and all options moving forward, including appealing this decision,” Herring said. “It has been an honor and a privilege to stand alongside every one of the advocates who has fought so hard to ensure women’s equality is protected under the Constitution and we will not stop now.”

He also endorsed any type of federal involvement. 

“While I do not believe that the arbitrary deadline Congress imposed on the Equal Rights Amendment is binding in any way, I welcome any support from both the Biden Administration and Congress in ensuring that this amendment is recognized as part of the Constitution once and for all,” Herring said. 

Brian Carlton is Dogwood’s managing editor. You can reach him at [email protected].

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