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Judge dismisses lawsuit by Democratic AGs to recognize ERA

Virginia becomes critical 38th state to ratify Equal Rights Amendment
Posted at 9:28 AM, Mar 06, 2021
and last updated 2021-03-06 09:28:59-05

A federal judge on Friday dismissed a lawsuit filed by three Democratic state attorneys general that had sought to force the federal government to recognize Virginia's vote last year to ratify the Equal Rights Amendment and add it to the Constitution.

Shortly after Virginia became the 38th state to ratify the amendment that supporters say will guarantee women equal rights under the law, the archivist of the United States declared he would take no action to certify the amendment's adoption, citing an opinion from the Department of Justice under the Trump administration.

Constitutional amendments must be ratified by three-quarters of the states, or 38, but Congress enacted a ratification deadline for the ERA that passed decades ago.

In a ruling Friday evening, U.S. District Judge Rudolph Contreras said that Nevada, Illinois and Virginia's motives were “laudable” but that they came too late because the U.S. Congress set deadlines for ratifying the ERA long ago. Contreras also said the Archivist's publication and certification of an amendment are “formalities with no legal effect” so the archivist's failure to do that doesn't cause harm and there's no standing for the states to sue.

In their lawsuit, Virginia Attorney General Mark Herring, Nevada Attorney General Aaron Ford and Illinois Attorney General Kwame Raoul argued that the deadline, which was first set for 1979 and later extended to 1982, was not binding.

Herring said in a statement after the judge's ruling that he is not giving up the fight and is considering an appeal, hopeful of backing from Democrat Joe Biden's administration and Congress.

“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," he said.

The U.S. Department of Justice, which represented the archivist of the United States David Ferriero, declined to comment. An emailed message seeking comment from the press office of the National Archives and Records Administration was not immediately returned.

In a January 2020 opinion, the Justice Department said it was too late for states to sign off because of the deadline set by Congress decades earlier.

Ford in Nevada said in a statement Friday that women have always been endowed with equal rights but it's past time for the country to recognize that.

“Unfortunately, today’s decision requires women to continue waiting. Though I’m disheartened by this decision, all women can rest assured that, regardless of this court’s decision, my fight for your equal rights does not end today, tomorrow, or any day," he said.

The ERA states, in part, “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 contend the amendment would offer stronger protections in sex discrimination cases and give Congress firmer ground to pass anti-discrimination laws, among other protections. Opponents of the measure warn it could be used to erase protections such as workplace accommodations during pregnancy.

Anti-abortion activists worry that the amendment could be used by supporters of abortions rights to eliminate abortions restrictions on the grounds that they discriminate against women.