A federal judge has dismissed a lawsuit that sought to formally recognize the Equal Rights Amendment, a legal setback for supporters who have been trying to add the amendment to the U.S. Constitution.
The ruling comes just over a week before the U.S. House is expected to vote on a resolution that aims to effectively affirm that the amendment is viable, which supporters hope will clarify its status. But it’s still unclear what any of this will mean for the future of the amendment.
U.S. District Judge Rudolph Contreras said in a 37-page ruling released Friday evening that the lawsuit filed by three Democratic attorneys general did not have standing to proceed “laudable as their motives may be.”
The Equal Rights Amendment, or ERA, proposes adding language to the U.S. Constitution that prohibits discrimination on the basis of sex, which its supporters believe will add legal protections for women. Some groups also believe it will provide protections against discrimination on the basis of gender and gender identity. The fight to add the ERA has lasted for decades, though, with opponents raising arguments about women’s roles and worries that it would add legal protections for abortion. (The 19th explains the history of the fight over the Equal Rights Amendment here.)
Congress passed the amendment in 1972 with the needed two-thirds majority vote, but with a stipulation that state legislatures ratify it in seven years. Three-fourths of state legislatures (38 out of 50) are needed to ratify any amendment, but only 35 did so for the ERA by the 1979 deadline amid a concerted campaign to stop its implementation. Congress extended the deadline by three years at the time, but no other legislatures ratified the amendment.
Then from 2017 to 2020, statehouses in Nevada, Illinois and Virginia ratified the ERA, starting a new debate about its status.
The attorneys general for those states then sued, seeking to require the United States archivist to acknowledge the ERA by publishing and certifying the amendment as part of the Constitution. The archivist, under the National Archives and Records Administration, had refused to do so under guidance from the U.S. Department of Justice. The DOJ at the time issued an opinion citing the expired deadline on the ERA for not proceeding with adding the amendment.
Contreras made two main points in ruling that the attorneys general had no standing to sue: He believes the archivist’s actions “are formalities with no legal effect.” He also highlighted the deadlines set by Congress for ratifying the Equal Rights Amendment.
“Plaintiffs’ ratifications came too late to count,” he wrote.
Mark Herring, the attorney general in Virginia who helped file the lawsuit, said Friday night on Twitter that he was disappointed in the ruling and hinted at additional legal action.
“I’m not giving up this fight and I will consider any and all options moving forward, including an appeal,” he wrote. “It has been an honor 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 won’t stop now.”
A spokesperson for the Department of Justice declined to comment. A message left with the National Archives and Records Administration on Saturday was not immediately returned.
Carol Jenkins, president and CEO of the ERA Coalition and the Fund for Women’s Equality said in a statement Friday night that she was “disappointed” in the decision. She said her organizations are “optimistic of validation on appeal.”
Jenkins also said supporters are focused on lobbying Congress to support a pair of ERA resolutions filed in both chambers. Supporters believe the resolutions effectively remove the deadline stipulation, which is not part of the original text of the amendment. While it is expected to pass in the House, which is scheduled to take up the measure the week of March 15, its fate in the closely divided Senate is less clear.
Herring said he welcomed “any support from both the Biden Administration and Congress in ensuring that this amendment is recognized as part of the Constitution once & for all.”
Other supporters of the ERA see the path through Congress more favorably. Julie C. Suk, a legal scholar who coordinated and filed the constitutional law scholars’ amicus brief in the lawsuit, said in an email that the judge’s ruling on Friday did not consider the constitutionality of Congress’ ability to extend its deadline on the ERA. She is the author of “We The Women: The Unstoppable Mothers of the Equal Rights Amendment.”
“For a variety of reasons, my own view in many writings has been that the ERA has a much more promising path to survival in Congress rather than in the courts,” she said.