- Virginia Del. Jennifer Carroll Foy, seated center, is applauded in the House of Delegates gallery after she spoke for passage of the ERA resolution she sponsored Jan. 15 at the state capitol in Richmond, Virginia. Photo by Bob Brown/Richmond Times-Dispatch via AP.
The Equal Rights Amendment has been battling the numbers since 1979, at which time it fell three states short of becoming part of the Constitution. As of 2020, however, just one state was needed to meet a state count threshold to pass the ERA—that’s until Virginia made history on Jan. 15, ratifying the amendment. Now, the ERA is dealing with a different sort of numbers game: Has the date for ratification passed?
Congress sent the ERA to the states in 1972 with a seven-year ratification window. Amid extended deadline to 1982, but no additional states voted to ratify during that period. After decades of dormancy, however, two more states (Nevada and Illinois) ratified it in 2017 and 2018, reigniting the movement.
The amendment is pending before Utah legislature and is expected to be introduced in several other states, but Virginia’s ratification, alone, meets the article V
That makes 38 the magic number, and both sides are invoking it from opposite ends of the spectrum. Supporters, including a wide swath of constitutional scholars, say the number satisfies the final hurdle to becoming the 28th amendment to the Constitution. Opponents counter that the deadline for ratification expired 38 years ago. Underlying it all is the question of whether a valid deadline for ratification of the ERA ever existed, given that the seven-year limitation appears but not in the body of the amendment, which reads: “Equality All amendments proposed since then except for the 19th (Women’s Suffrage) and the proposed child labor amendment have included a deadline.
Those 24 words in the preamble recently triggered a series of legal maneuvers. In a preemptive move, attorneys general of three states (Alabama, Louisiana and South Dakota) jointly filed a complaint in December to block ratification of the ERA. Alabama et al. v. Ferriero, N.D. Alabama sought to nullify Virginia’s anticipated ratification and delete the ratifications of five states (Idaho, Kentucky, Nebraska, South Dakota and Tennessee) that previously voted to rescind their approval.
In the Alabama case, defendant David Ferriero was sued in his official capacity as archivist of the United States, a position that requires him to certify a ratified amendment and enter it in the record. That ministerial act officially makes the amendment part of the Constitution. Ferriero said he would not act before Feb. 15 and requested legal guidance from the Justice Department’s Office of Legal Counsel.
On Jan. 8, the Justice Department publicly released OLC’s non-binding which stated that any future state ratifications of the ERA should not be recognized because they are time-barred and said the five state rescissions should be recorded.
Jessica Neuwirth, an attorney and president of the ERA Coalition, calls the OLC opinion a “desperate attempt to throw a shadow on” what was going to happen in Virginia. She notes that the 19th Amendment giving women the vote wasn’t subject to a deadline. “That’s because [voting] is a fundamental right. Is there a time limit on equality?”
Within days of announcing that he would comply with the OLC opinion, Ferriero was sued again. In early January, an ERA support organization filed a complaint in a Massachusetts federal district court challenging the validity of the original ratification deadline (Equal Means Equal, The Yellow Roses, and Katherine Weitbrecht v. Fierriero, Dist. Mass.). As of the publication date of this article, the matter was pending.
Hot Forum Topics
