The Equal Rights Amendment suffered twin setbacks this week after a federal appeals court shot down an effort to force it into the Constitution, and the nominee to lead the National Archives reaffirmed she won’t act on her own to add it to the government’s founding document.
The U.S. Circuit Court of Appeals for the District of Columbia said Congress seems to have the power to set deadlines for ratification, and the deadline for the ERA passed decades ago without enough states signing on.
The three-judge panel said at the very least, the question is not clear enough for courts to step in and order the national archivist to add the ERA as the 28th Amendment.
“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,” wrote Judge Robert L. Wilkins in an opinion for the unanimous court issued Tuesday.
Also Tuesday, Colleen Shogan, President Biden’s nominee to lead the National Archives, said she wouldn’t move on her own.
“The archivist publishes an amendment when it is part of the Constitution, not the decider,” she told the Senate Homeland Security and Governmental Affairs Committee.
That likely means that unless Congress passes new legislation, or the executive branch changes its legal read on the ERA’s ratification, the National Archives won’t act.
The Equal Rights Amendment’s key text reads: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
Supporters say it will strip away remaining vestiges of sex discrimination. Opponents say it would create a national right to abortion on demand. It’s unclear how the amendment would affect the relatively recent push for transgender rights.
Congress proposed the ERA to the states in 1972, setting a seven-year window for ratification. Just 35 states met the 1979 deadline, with 38 states required. Congress passed a three-year extension, but no new states ratified it by 1982, and the amendment seemed dead.
In the past decade, though, supporters decided that the deadline was illegal and wrangled three new ratifications from Nevada, Illinois and Virginia.
The Justice Department has ruled the deadline was valid and the National Archives has declined to certify the amendment as ratified, so ERA backers went to the courts to force action.
They were seeking what’s known as mandamus, which is a request to the court to order a government official to take an action. That’s considered an extraordinary move, and the legal bar is high.
The issue is supposed to be crystal clear in favor of the plaintiffs before a court orders mandamus action, and Judge Wilkins said the ERA issue is anything but clear for the amendment’s backers.
Not only is there the deadline Congress set for ratification, which was not met, but also five states that did ratify within the timeframe then declared their ratifications be revoked.
ERA backers are asking the courts to ignore the deadline, count the latecomers and discount the revocations in order to shoehorn the amendment in.
On Capitol Hill, Democrats who support the amendment are seeking paths forward.
The Senate Judiciary Committee held a hearing Tuesday featuring ERA backers urging Congress to pass legislation retroactively erasing the deadlines for ratification. The hearing was taking place just as the federal appeals court was issuing its opinion.
Sen. Richard J. Durbin, Illinois Democrat and chairman of the committee, said last year’s Supreme Court ruling overturning the Roe v. Wade decision establishing a national right to abortion should prod Congress to act on the ERA.
“So now the question for members of this committee is straightforward: What kind of America do we want to leave our daughters and granddaughters? A country in which their fundamental rights are safe and secure? Or one in which the Constitution continues to fail to recognize fundamental equality on the basis of sex?” he said.
Sen. Lindsey Graham, South Carolina Republican, countered that if the ERA were offered in Congress today it wouldn’t muster the votes to clear Capitol Hill and be sent to the states for ratification.
“The times in which we live have changed. You wouldn’t get anywhere near a two-thirds vote in the Senate or the House,” Mr. Graham said.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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