Herring Files Appeal Over Equal Rights Amendment Ruling

By Brian Carlton

May 4, 2021

In March, a federal judge rejected Herring’s lawsuit. Now he wants the Court of Appeals to take a look.

RICHMOND-Federal courts need to take another look at the Equal Rights Amendment. That’s Mark Herring’s request. Virginia’s attorney general filed an appeal Monday, asking the U.S. Court of Appeals to reverse a district court’s ruling. 

In January 2020, Virginia became the 38th state to ratify the Equal Rights Amendment. Two days after the vote, 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.” In March, Judge Rudolph Contreras dismissed the case, saying the 2020 vote and following lawsuit came 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, according to the judge, the proposed amendment is dead.   “The United States cannot continue forcing women to wait to be recognized as equal under this country’s founding document,” Herring said on Monday. “Throughout the years, efforts to have the Equal Rights Amendment added to the Constitution have been met with many impediments, but every single time this movement has overcome those hurdles and come out the other side stronger than ever. To those who have sent a clear message that they do not believe in women’s equality – it’s time that you move into the 21st century.”

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

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