Justice Department says Equal Rights Amendment is dead despite Democratic push
by Sean Higgins | January 08, 2020
A Justice Department legal opinion released this week said the Equal Rights Amendment was a dead letter despite supporters’ recent efforts to put ratification back on track.
The DOJ said the deadline to ratify the constitutional amendment passed in 1982 and supporters would instead have to start the process all over again.
“We conclude that Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the States,” declared the memo from the DOJ’s Office of Legal Counsel.
The memo was released just as Virginia was gearing up for the start of its 2020 legislative session. Gov. Ralph Northam, a Democrat, said Tuesday, “We will support women’s rights by finally passing the Equal Rights Amendment.” The Democrat-led body is expected to pass it, making Virginia the 38th and, ERA supporters claim, final state needed for ratification.
The Equal Rights Amendment would ban discrimination on the basis of sex. Proponents see it as crucial to ensuring women’s rights under the law. Critics argue it would put too much power in the hands of courts. The amendment passed Congress in 1972, and 35 states had ratified it by 1977, but the effort ran out of steam after that. The next two states, Nevada and Illinois, didn’t act until 2017 and 2018, respectively.
The deadline set by Congress to ratify the ERA expired in 1982. Following a renewed burst of grassroots activism, the Democrat-led House voted late last year to extend the deadline. The Justice Department memo countered that the deadline could not be extended after it had already expired.
“Should the people of the United States wish to adopt the ERA as part of the Constitution, then the appropriate path is for Congress (or a convention sought by the state legislatures) to propose that amendment once more,” the DOJ memo said.
ERA fans dispute that the expiration mattered, arguing that nothing in the Constitution says deadlines apply to amendments. They have, however, pressed the Senate to approve a deadline extension as well. Senate Majority Leader Mitch McConnell, a Kentucky Republican, has opposed the effort.
The ERA effort faces other legal hurdles. Five states that ratified the ERA subsequently tried to rescind their approval. The amendment’s backers claim states cannot do that.