As many long-time readers of Minnesota Women’s Press know, I have been involved with the effort to get equal rights for women into the U.S. Constitution for too many years — an amendment that should have been passed decades ago. (How many readers know that Minnesota does not officially support equal rights for women at the state level?)
There is now some faster action to share at the federal level.
After Virginia ratified the ERA in January, making it the 38th and final state needed to immediately make equal rights for women part of the Constitution, the next step was for the person who officially certifies it — the U.S. Archivist — to do so.
In 2012, this same Archivist sent a letter to Congresswoman Carolyn B. Maloney and ERA advocates saying he would indeed certify after the 38th state ratified. This would happen despite time limits and repeals, since the Constitution doesn’t allow rescindment or sunsets on amendments.
Not surprisingly, the closer we get to Constitutional equality, the greater the pushback. Recently the Trump Administration’s Department of Justice intervened, issuing an opinion stating that the 1979 deadline effectively killed the ERA. (Of course, that’s their opinion; our Constitutional experts disagree).
With this opinion, the Archivist demurred, saying he would turn to the courts to determine whether or not he should certify.
Now, just as it happened 100 years ago, when the Suffragists achieved the final state to win the vote for (most) women, lawsuits have ensued. Two major pieces of litigation are pushing to formally recognize that the amendment has indeed been added to the Constitution.
Litigation by the organization Equal Means Equal, which is now in the Massachusetts court, focuses on the “extra-textual” time limit imposed on the ERA that was not in the actual language that 38 states have passed. Oral arguments recently took place. ERA Minnesota (ERAMN) is partnered with other diverse justice and women’s rights organizations on an amicus brief for that lawsuit.
Next, the Attorneys General from Virginia, Nevada, and Illinois — with backing from 20 other AGs — filed litigation in U.S. District Court in Washington, D.C., insisting that “every constitutional requirement has been fulfilled and the ERA is now the 28th Amendment to the U.S. Constitution.”
There are many amici curiae and supports for this brief, including 93 major companies, city mayors, key law firms, top women’s rights and justice organizations, including ERAMN.
Alabama, Louisiana, and South Dakota Attorneys General are pushing back on this litigation, as is the late Phyllis Schlafly’s Eagle Forum, saying that five states rescinded their ratification.
Virginia Attorney General Mark Herring counters that argument by reminding the court that the Constitution does not give governments the power to rescind. There is precedent on this point. Two states attempted to rescind the 14th Amendment, and one state attempted to rescind their ratification of the 15th Amendment, but they were all turned back because a state cannot rescind ‘after the fact.’
So, stay tuned.
ERA Minnesota and our allies will fight every step of the way. This 100-year battle is now being waged on three fronts: the legislative branch, the judicial branch, and the upcoming elections.
Our movement is aimed at systemic change: to change a system of repression and subjugation that has thwarted women’s progress for centuries. We will not tire. We will not grow weary. We will keep on keeping on until equality is a reality for all.
Betty Folliard is a former legislator and is the founder of ERA Minnesota.