Lawsuit Seeks to Ease Adoption of Equal Rights Amendment

The anticipated approval of the amendment by Virginia would put the ERA over the threshold for becoming part of the Constitution, but efforts are underway to block its ultimate adoption as the 28th Amendment

Kamala Lopez, right, president of Equal Means Equal, faces reporters as Natalie White, left, vice president of the organization, looks on during a news conference, Tuesday, Jan. 7, 2020, in Boston. Supporters of the Equal Rights Amendment filed the federal lawsuit in Massachusetts aimed at paving the way for adoption of the long-delayed constitutional amendment.
Steven Senne/AP

Supporters of the Equal Rights Amendment have filed a federal lawsuit in Massachusetts aimed at clearing a legal path for adoption of the long-delayed constitutional amendment.

Backers say they're wading into the debate over the amendment — which dates to the early 1970s — because Virginia is poised to become the decisive 38th state to approve the measure.

But the process is likely to hit some snags. One of the biggest is a measure passed by Congress in 1972, attaching a 1977 ratification deadline to it. That was later extended to 1982.

Amendments are added to the U.S. Constitution if they are approved by three-quarters of state legislatures. The anticipated approval of the amendment by Virginia would put the ERA over that threshold.

Is it time to revive the movement for an Equal Rights Amendment? Sue’s guest, attorney Wendy Murphy, argues for updating the Constitution to prohibit discrimination on the basis of sex.

The lawsuit filed Tuesday in U.S. District Court in Boston argues, in part, that the deadline imposed by Congress was passed separately and not included in the text of the amendment — and therefore not constitutionally binding.

The group also points to the case of the Constitution's 27th Amendment, which was written by James Madison in 1789 to bar Congress from voting itself instant pay raises. That amendment was not adopted until 203 years later — far longer than the adoption process for the ERA.

The ERA states that "equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex."

Despite the legal hurdles, advocates of the amendment in Virginia are already planning to celebrate its passage — made possible after Democrats seized control of the state Legislature in November.

But efforts are underway to block its ultimate adoption as the Constitution's 28th Amendment, including a lawsuit filed in federal court in mid-December by Alabama, Louisiana and South Dakota. Conservative activists have depicted the ERA as a threat to their stances on abortion and transgender rights. 

Lawsuits could also be waged over attempts by five states to rescind their initial support for the amendment. 

"This lawsuit was filed today to make sure that no roadblocks are put in place to prevent women's equality from becoming part of the United States Constitution," said Wendy Murphy, a lawyer for Equal Means Equal, one of the groups that filed the lawsuit in Massachusetts.

Murphy said the groups were compelled to file the lawsuit in response to the one filed by Alabama, Louisiana and South Dakota.

"Now that we are on the verge of winning the final state needed to ensure women's equality it is shocking and deeply disturbing that attorneys general in three states" are trying to block the amendment, she added.

Anti-abortion activists worry that the ERA, if ratified, would be used by abortion-rights supporters to quash restrictions on grounds they specifically discriminate against women. 

Some ERA opponents are also worried that the amendment would be used to ensure nationwide protections for transgender women seeking to use women-only restrooms and locker rooms.

Supporters say both concerns are unfounded.

Massachusetts was among the first batch of states to approve the Equal Rights Amendment in the early 1970s.

After voting to ratify the amendment, Virginia is expected to submit copies of the state's resolution to the U.S. archivist David S. Ferriero to be recorded — something opponents are trying to block.

Ferriero released a statement last month saying the National Archives and Records Administration is requesting guidance from the Department of Justice on ratification of the ERA. Ferriero pointed to issues raised in the lawsuit filed by Alabama, Louisiana, and South Dakota. 

"NARA does not intend to take any action regarding the ERA until, at a minimum, it receives the guidance it previously requested and in no event before February 15, 2020," the statement said. 

Both lawsuits name Ferriero as the defendant.

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