“Get it done!” and “Women’s rights, human rights!” they chanted.

January 8, 2020 12:50 PM

Virginia's 2020 General Assembly session started at noon Eastern today, with Democratic majorities in both the House of Delegates and the Senate. The new legislature is expected to ratify the Equal Rights Amendment, making Virginia the 38th state of the 38 states required to pass a Constitutional amendment. What happens next? Who knows?

The primary arguments raised against the ERA are that the amendment wasn't ratified before its 1982 deadline and that five states that initially ratified the ERA have since rescinded their decisions. It's not clear that rescinding is allowed since it's not mentioned in the Constitution.

Alabama, Louisiana, and South Dakota filed a federal lawsuit last month to try to stop the amendment. The Justice Department issued a statement today saying the deadline to ratify the ERA has expired.

The opinion, issued in response to a lawsuit filed by three conservative-leaning states, effectively prevents the archivist of the United States, who administers the ratification process, from verifying that the amendment is valid and part of the Constitution after the necessary number of states approve it. But his authority doesn't prevent states from acting on their own to ratify the amendment -- or preclude them from legally challenging the Justice Department's opinion in court.

"OLC's opinion doesn't directly affect the litigation, but unless it is overruled by the attorney general or the President, it likely will bind the archivist -- meaning that the only way a new ratification by a state like Virginia would likely be effective is if the courts say so," Stephen Vladeck, a CNN legal analyst and professor at the University of Texas School of Law, told CNN. "This opinion suggests that, from the Executive Branch's perspective, the matter is closed."

posted by kirkaracha (30 comments total)

I often think about how it seemed a given that this was going to pass when I was a kid, and I am far from being a kid now.
posted by bongo_x at 1:17 PM on January 8, 2020 [24 favorites]

The Justice Department issued a statement today saying the deadline to ratify the ERA has expired.

Is this something that a future Democratic administration could quickly reverse, though?
posted by saturday_morning at 1:22 PM on January 8, 2020 [2 favorites]

I often think about how it seemed a given that this was going to pass when I was a kid, and I am far from being a kid now.

Same. The history of this amendment is a national shame. The actions allied against it are themselves explicit reasons why we need it.
posted by Thorzdad at 1:25 PM on January 8, 2020 [20 favorites]

Just noting that the most recent amendment to be ratified, the 27th, was ratified in 1992. It was proposed 202 years earlier in 1789 (without a ratification deadline attached by Congress).

There's a strong argument to be made, based on that length of time, that Congress doesn't even have the authority to set a deadline, because the Constitution doesn't give them that power. If Congress did have that power, successive Congresses of liberal or conservative persuasion could tinker with the amendment process in all kinds of ways, including by adding or removing deadlines. The Constitution does not contemplate a deadline, not even a 200-year one.
posted by beagle at 1:27 PM on January 8, 2020 [27 favorites]

There is close to nothing that I can say about Phyllis Schlafly that would not get this comment removed due to overwhelming and hateful invective. What an odious, odious woman she was.

"Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex." It is asinine that this even needs to be _specified_, let alone require a Constitutional Amendment, let alone have states filing lawsuits to prevent it. It speaks volumes about the character of our nation and of a disturbingly persistent percentage of its citizenry.
posted by delfin at 1:32 PM on January 8, 2020 [24 favorites]

the most recent amendment to be ratified, the 27th,

I was writing a comment about that but paused to add a caveat about how everyone must learn that as a basic fact about the Constitution in school now, whereas I managed to miss it until recently. Having been beaten to the punch with my comment I now feel even older and more dotardly. (No hard feelings though!)
posted by XMLicious at 1:35 PM on January 8, 2020

About five of the previous proposed amendments that were ratified included a deadline. This one did as well. The 27th (which was part of the Bill of Rights) did not.

The deadline came and went, and so I consider it non-ratified. And I'm a supporter.
posted by megatherium at 1:36 PM on January 8, 2020 [3 favorites]

I hope it eventually passes, but I expect it won't in my lifetime. May make a really good political hammer though.
posted by BrotherCaine at 1:41 PM on January 8, 2020

Five states have voted to rescind or otherwise withdraw their ratification of the ERA.
Nebraska: March 15, 1973
Tennessee: April 23, 1974
Idaho: February 8, 1977
Kentucky: March 20, 1978
South Dakota: March 5, 1979

If this was expected to pass I wonder how many more of the current R-controlled states would try to rescind support.
posted by benzenedream at 1:43 PM on January 8, 2020 [3 favorites]

It would take about twelve seconds for a half-dozen of them to line up, eager to Take a Moral Stand in the name of Traditional Family, Old-Time Religion and The American Way, spurred on by talk radio and Fox News pundits decrying how the ERA would lead to the destruction of our armed forces, organized religion, the family unit, professional and amateur sports, police and fire departments, and fifteen or twenty completely overblown and ridiculous propositions.
posted by delfin at 1:55 PM on January 8, 2020 [3 favorites]

The Justice Department issued a statement today saying the deadline to ratify the ERA has expired.

I'm mean that's cool and all, but it's not really their call to make. Congress and the Congressional Archives are the ones that says yea or nay on this.

Five states have voted to rescind or otherwise withdraw their ratification of the ERA.

It's not clear if there is actually a way to do this or if the ratification process is based on the "no take backsies rules".
posted by jmauro at 2:21 PM on January 8, 2020 [1 favorite]

About five of the previous proposed amendments that were ratified included a deadline. This one did as well

But it didn't, which is where it gets fun.

This is the entire text of the ERA:
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.

No deadline. Congress put a deadline in the joint resolution officially passing it to the states, but it isn't clear that they can attach a deadline to an amendment beyond passing a self-deadlining amendment.
posted by GCU Sweet and Full of Grace at 2:32 PM on January 8, 2020 [17 favorites]

I expect that if it gets a 38th ratification that the issue will be decided by SCOTUS. And given the nature of some of the characters there, I would expect 99% that Justices Boofed Beer and Thomas will vote no (for obvious reasons), and the other conservative justices will be more than 50% likely to vote no because of the expiration date in the congressional statute. The deadline provision in the statute hasn't been repealed, but it put things in a weird place because a majority-passing statute that hands over an amendment to the states arguably can't override the 2/3 votes it took to create it.
posted by tclark at 3:40 PM on January 8, 2020 [5 favorites]

There's an article I shared a few months ago that I think applies here:

An Unaccountable Office Crafted a Secret Law to Conceal the Whistleblower Complaint (Mark Joseph Stern, Slate)

The [Department of Justice’s Office of Legal Counsel] is a small office that rarely garners much attention but holds extraordinary power, as the whistleblower episode illustrates. Its opinions are binding on the executive branch, yet they can be kept secret from everyone except high-ranking administration officials. [...]

By law, the OLC’s job is to help the attorney general provide legal advice to the president and federal agencies. It is intended to exercise its judgment independently, not to serve as a rubber stamp for the administration. In recent years, however, the office has crafted dubious theories that seem designed to let the administration do whatever it wants. The OLC notoriously issued the “torture memos,” blessing the George W. Bush administration’s abusive interrogation methods, which were hidden from the public for years. It also crafted the policy that a sitting president cannot be indicted, which boxed in special counsel Robert Mueller’s investigation and report.

My assumption is the office is not above being biased.
posted by ZeusHumms at 4:15 PM on January 8, 2020 [7 favorites]

Nonsense. An explicit amendment is far preferable to letting the whims of SCOTUS at any given time dictate whether more than half the population deserves equal treatment. It's not "abandoning the position" to note that Brett Kavanaugh doesn't give a fuck about your feelings about how the 14th should be interpreted.

Even a full ERA might not stop these hooligans, but we should at least force them to ignore a plainly worded amendment rather than letting them weasel out with some strict constructionalist bullshit.
posted by tonycpsu at 4:32 PM on January 8, 2020 [20 favorites]

SCOTUS will decide this, and SCOTUS is majority GOP. So.
posted by 922257033c4a0f3cecdbd819a46d626999d1af4a at 4:32 PM on January 8, 2020 [3 favorites]

> The one thing we need judicial protection for --- abortion

oof.
posted by tonycpsu at 5:11 PM on January 8, 2020 [2 favorites]

Starting with the 18th Amendment, Congress started putting a time limit for ratification into the text of amendments they passed. This gets kind of cluttered over time, so eventually they moved the time limit into the joint resolution that approves the amendment and sends it to the states. (Amendments require 2/3 of both houses of Congress and 3/4 of states.)

The ERA passed Congress in 1972, with a deadline in 1979. By 1978, some states had already tried to repeal their previous approval (which is unclear); also Congress passed a new joint resolution to extend the deadline to 1982.

There was a Supreme Court case about whether extending the deadline to 1982 was OK or not, but not enough states ratified by 1982 anyway, so they dismissed it as moot.
posted by Huffy Puffy at 5:16 PM on January 8, 2020

It was a good idea in 1978, and many of the people fighting against it are terrible and sexist. But the ERA is still a bad idea.

The 14th Amendment was ratified in 1868. Since it was in effect in 1978, why was the ERA a good idea then but a bad idea now?
posted by kirkaracha at 5:19 PM on January 8, 2020 [9 favorites]

How is the ERA a "disaster" for immigrants and other marginalized groups? Since when did equality become a zero sum game?
posted by basalganglia at 6:23 PM on January 8, 2020 [8 favorites]

There's a legal principle that laws aren't interpreted in a way that would make them meaningless. I don't know how that bears on US Constitutional law, but it's very possible that a court would find that the mooted amendment provides additional rights to women, over and above what is now understood to be equality.

The obvious rights that could be implied are remedies for things that are facially neutral but effectively burden women more than men. For instance: restrictions on abortion; the lack of maternal leave; and pensions tied to earning history. I'm not saying this is ideal; I don't think judicial interpretation is a good substitute for progressive legislation, but this is some reason why passing the amendment could have good consequences.
posted by Joe in Australia at 8:04 PM on January 8, 2020 [2 favorites]

Right now under 14th amendment jurisprudence, gender / sex discrimination or distinctions are reviewed under “intermediate scrutiny.” The ERA says “shall not,” which sounds like strict scrutiny, and would make it much harder for distinctions to pass judicial review. So it should be that it would make a difference.
But there is also the world we actually live in.
posted by kerf at 8:15 PM on January 8, 2020 [7 favorites]

Has the 14th amendment been used in any gender pay inequality suits?
posted by benzenedream at 7:29 AM on January 9, 2020

It's not clear if there is actually a way to do this or if the ratification process is based on the "no take backsies rules".

I can't see how even the current Supreme Court could declare that there is a backsies rule. First, it's not included in the amendment process written into the constitution. Second, if an unwritten backsies rule existed, then any sufficiently renegade state could unratify the entire constitution and thereby secede. I believe a certain war settled that question.

So, if the backsies votes don't count, the Supremes would then have to decide the validity of deadlines sent by congressional resolutions (not laws). The last time they considered this question was in the Coleman v. Miller decision in 1939.. (Decision syllabus.) In that ruling the court stated: "The Congress, in controlling the promulgation of the adoption of a constitutional amendment, has the final determination of the question whether, by lapse of time, its proposal of the amendment had lost its vitality before being adopted by the requisite number of legislatures."

On that basis, while the court might rule on the backsies question, they would kick it back to Congress (not the archivist of the LOC, not the DOJ) to count the ratifications and decide whether the amendment has been ratified. The question there would be whether a simple majority of both houses could decide, or whether a two-thirds vote is needed again. That's unexplored territory with no precedents to go on. (But IANACL.)
posted by beagle at 8:26 AM on January 9, 2020 [1 favorite]

eventually they moved the time limit into the joint resolution that approves the amendment and sends it to the states

The District of Columbia Voting Rights Amendment, which passed Congress in 1978, had a seven-year deadline as Section 4.
posted by kirkaracha at 8:35 AM on January 9, 2020 [1 favorite]

Right, and the fact that they put the deadline into the amendment itself is an indication that they were worried that deadlines set outside the amendment text itself might not be valid.
posted by beagle at 8:38 AM on January 9, 2020 [3 favorites]

Interestingly enough, should the states want to be wacky that way, the DC Voting Rights Amendment could be ratified by 38 states, and it would immediately become a weird extant self-nullifying amendment. It would go on the books as the 28th Amendment (or whatever ordinal number is appropriate) and be inoperative.

It will not have been repealed (like alcohol prohibition) but be enacted as inoperative.
posted by tclark at 9:19 AM on January 9, 2020 [3 favorites]

Virginia moves to brink of becoming 38th state to ratify ERA

Virginia moved to the brink of becoming the crucial 38th state to ratify the Equal Rights Amendment on Wednesday, a momentous victory for many women’s rights advocates even though it is far from certain the measure will ever be added to the U.S. Constitution.
...
The measure has passed the Virginia Senate before with bipartisan support but has never made it to the House for a floor vote. ERA supporters, some of whom have been advocates for decades, lined up hours in advance of the vote Wednesday to get a seat in the gallery.

The House vote was presided over by Del. Eileen Filler-Corn, the first female House speaker in the chamber’s 400-year history.

posted by kirkaracha at 11:53 AM on January 15, 2020 [1 favorite]

Virginia lawmakers pass Equal Rights Amendment in historic vote

Both chambers of Virginia’s General Assembly passed the Equal Rights Amendment Wednesday, fulfilling a promise that helped Democrats seize control of the legislature and marking a watershed moment in the nearly century-long effort to add protections for women to the U.S. Constitution.

The votes capped an emotional week in which Democrats — particularly female lawmakers who now hold unprecedented positions of power in Richmond — celebrated history in the making.

posted by kirkaracha at 12:04 PM on January 15, 2020 [6 favorites]

Virginia finalizes passage of Equal Rights Amendment, setting stage for legal fight

Virginia's legislature finalized passage of the Equal Rights Amendment on Monday, with women presiding in both the Senate and House of Delegates for the historic votes.

Virginia becomes the 38th — and potentially final — state to ratify the amendment guaranteeing equal protection for women, setting the stage for a legal fight over whether too much time has passed to add it to the U.S. Constitution.

“We have waited over 400 years, and now is our time,” Sen. L. Louise Lucas (D-Portsmouth) said at a news conference Monday morning ahead of the vote."

posted by kirkaracha at 2:58 PM on January 27, 2020 [1 favorite]