by Carrie N. Baker for Ms. Magazine
In an opinion issued on Wednesday, Jan. 26, the Department of Justice’s Office of Legal Counsel (OLC) helped clear the way for the Equal Rights Amendment, according to leading ERA advocates. In January of 2020, under Trump, the OLC issued an opinion arguing that Congress had no power to remove a seven-year timeline for ratification in the preamble of the ERA and that therefore three recent state ratifications were invalid. The OLC opinion issued by the Biden administration strongly affirms the power of Congress to remove the deadline. The opinion follows the overwhelming consensus among constitutional law scholars.
According to a recent amicus brief authored by former Stanford Law School Dean Kathleen Sullivan and signed by Laurence Tribe, Dorothy Roberts, Kimberlé Crenshaw, Catharine MacKinnon and 11 other top constitutional scholars:
“The language of Article V is mandatory: an amendment to the Constitution ‘shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states.’ Nor does the text of Article V envision a role for an executive branch officer to assert his discretion regarding the validity of the amendment. The text requires no additional action by Congress or by anyone else after ratification by the final State.”
In a press conference, Reps. Carolyn Maloney (D-N.Y.) and Jackie Speier (D-Calif.) responded to the newly issued OLC memo by saying that the ERA has already been ratified and should be recognized as the 28th Amendment—and that the archivist should do his ministerial duty to certify and publish the ERA. Action by Congress could clarify this, but is not necessary for publication of ERA.
“The ERA has been ratified. It is the law. It should be certified and published by the archivist,” said Eleanor Smeal, president of the Feminist Majority Foundation. “The fight now is that we’re going to enforce the ERA. Without enforcement, it’s just a symbol. We want the ERA enforced.”
On Thursday, Jan. 27, Reps. Speier, Maloney and 120 cosponsors introduced a resolution before the U.S. House affirming that the Equal Rights Amendment has been validly ratified and is now in effect as the 28th Amendment to the U.S. Constitution.
“Two years ago, the final state Virginia ratified the amendment. The amendment says two years hence, it is law. And that’s today,” said Speier. “The ERA is fully ratified, no question about it.”
“We introduced this resolution to underscore and affirm that the ERA has been validly ratified as required by the Constitution, and should be recognized as the 28th Amendment to the U.S. Constitution,” said Maloney.
Also on Jan. 27, President Joseph Biden issued a statement reiterating his strong support for the ERA and urged Congress to pass the resolution. “No one should be discriminated against based on their sex—and we, as a nation, must stand up for full women’s equality.”
The resolution states that the ERA has satisfied all Article V requirements to amend the Constitution: a two-thirds vote in the House and the Senate, achieved in 1971 and 1972, and ratification by three-fourths of the states. Listing each of the 38 states by date of ratification, the House resolution resoundingly concludes the ERA “has met the requirements of the Constitution and become valid to all intents and purposes as a part of the Constitution, and shall be known as the ‘Twenty-Eight Amendment to the Constitution.’”
“This sign of support and recognition is extremely important, especially as we are now in the 50th year since the amendment left Congress and went out to the states for ratification,” said ERA Coalition executive director Carol Jenkins. “People have worked every single day for half of a century for this amendment.”
The House resolution addresses the Republican argument that the three recent ratifications by Nevada, Illinois and Virginia came too late. The resolution declares, “No time limit exists within the text of the proposed amendment that was ratified by three-fourths of the states.”
As a result of the Trump administration’s OLC opinion, the national archivist David S. Ferriero declined to take the final ministerial steps to make a constitutional amendment official—to verify the ratifications and then publish a formal proclamation certifying that the amendment is valid and is part of the Constitution.
“It’s outrageous that one unelected official is stopping women from getting into the Constitution,” said Maloney. “We urge the Biden administration to withdraw the erroneous OLC opinion and instruct the archivist to certify the final three state ratifications and publish the ERA in the Federal Register.”
Over 200 constitutional law scholars agree, recently signing a statement that Barr’s OLC opinion is wrong and that the Biden Justice Department’s Office of Legal Counsel should withdraw the opinion. The scholars argue that the opinion is “lacking a thoroughly reasoned understanding of precedent and Congressional power under the Constitution,” that it “sought to advance a policy preference against the ERA” and that it is “common practice for the OLC to review and withdraw legal opinions issued by a prior administration that are legally unsound and/or do not reflect the view of the current President.”
Earlier this month, Columbia University’s ERA Project released a detailed analysis signed by top constitutional law scholars explaining why the OLC memo was flawed. And 16 scholars, including Tribe, Roberts, Crenshaw and Sullivan, recently released a legal brief arguing that the ERA is validly ratified.
“States did not vote for the timeline—states voted for the text of the ERA. The timeline was in a preamble. The timeline is definitely not binding on Congress,” said Georgetown Law Professor Victoria Nourse, who was among the law scholars who signed the statement.
“There is within the language of the amendment itself no deadline for ratification,” said constitutional law scholar and Dean Erwin Chemerinksy of Berkeley Law School. “I think the Trump administration and the Justice Department was just wrong. The OLC memo said that there was a seven-year deadline for ratification based on the preamble to the ERA, not the language of the amendment. There are constitutional amendments that say within the text that they must be ratified within seven years. The ERA is not such an amendment.”
Maloney says the last amendment to the Constitution was ratified long after Congress first approved it in 1789. “This is the same type of resolution Congress passed to affirm the validity of our nation’s most recent amendment, the 27th Amendment, the Madison Amendment, which was ratified in 1992—over 200 years after it was first filed.”
“We just need the archivist to certify it,” said Speier. “We’re demanding that he do it.”
Another tactic by opponents of the ERA was to rescind state ratifications. In 2020, attorneys general from Alabama, Mississippi and South Dakota—which claim to have rescinded their ratifications—sued to block the archivist from certifying that the conditions for ratification had been met.
The House resolution notes that “the Fourteenth Amendment in 1868 was published to the Constitution despite 2 States purporting to rescind their ratifications.”
In the 1860s, several states tried to block the 14th Amendment by rescinding their ratifications but Congress passed a resolution declaring the Amendment validly ratified. The Supreme Court later affirmed that the 14th Amendment was validly ratified and part of the Constitution.
“Under the precedent of the 14th Amendment, once three-quarters of the states ratify, the amendment is part of the Constitution,” said Chemerinksy.
Leading constitutional law scholar and former dean of Stanford Law School Kathleen Sullivan agrees: “Article 5 speaks to ratification but not rescission. Article 5 describes a one-way ratchet. It does not provide for a two-way ratchet for going in and out of the process.”
The resolution declares, “the Archivist of the United States has a statutory and ministerial duty to certify that a proposed amendment to the Constitution is valid and has become part of the Constitution once it is ratified by more than three-fourths of the States.”
The House resolution also speaks to the effective date of the ERA: “Section 3 of the ERA states the amendment shall take effect two years after the 38th state ratifies, which was Virginia on January 27, 2020. Therefore, the ERA is in effect as of today, January 27, 2022.”
Eleanor Smeal sees the resolution as important to marking the day the ERA has finally taken effect.
“According to the text of the ERA, it takes two years for it to take effect. We wanted to mark it. We want people to understand that it is in effect. It has been ratified. It’s important for the people’s House to recognize that it’s been ratified,” said Smeal.
“But it’s not necessary, and neither is a vote in the Senate,” she continued. “Everything that was done has been done. We already have the two-thirds vote in Congress. Nothing says you have to have approval in the Congress two times.”
ERA advocates have been preparing for this day. “States are reviewing their statutes to see what changes they need to make in order to comply with Equal Rights Amendment,” said Jenkins. “We’re also working with corporations to create a universal code of equity. In our Corporate Equality roundtable, we are creating a communications hub that gives equal voice and equal future to those who have long been marginalized.”
The House resolution emphasizes what the ERA will do. “The Equal Rights Amendment provides a stronger constitutional basis for combating sex discrimination and provides Congress with more authority to enact laws that ensure gender equality.”
Under current Supreme Court precedent, sex discrimination receives only an intermediate level of scrutiny, meaning that many sex discriminatory laws and policies have been allowed, such as pregnancy discrimination and civil service veterans preferences that disadvantage women. The ERA would not allow these forms of discrimination, says constitutional law scholar Professor Julie Suk of Fordham Law School and author of We the Women: The Unstoppable Mothers of the Equal Rights Amendment.
“The Supreme Court never actually overruled its cases saying that governmental pregnancy discrimination was not unconstitutional sex discrimination. So, pregnancy is one subject on which I think the ERA could go beyond what the 14th Amendment has done,” said Suk.
“Women have been at a disadvantage since this Constitution was written. The only way you can fix that is by fixing the Constitution, and that is what has happened here,” said Jenkins. “Having fulfilled all the requirements—passage by Congress and ratified by thirty-eight states—the women of America should not be held back anymore. We should proceed.”
“I spend half my time in Congress fighting to hold on to what we already have, resisting efforts to roll back gains we’ve already made,” said Maloney. “With women’s rights in the Constitution, we wouldn’t be dependent on who’s in Congress, who’s on the Supreme Court, or who’s in the White House. Our rights would be protected.”
“The U.S. is an outlier in lacking constitutional protection against sex discrimination,” said Speier. “There are 193 countries in the UN and 165 of them have the equivalent of the ERA in their constitutions. We have the only written constitution now, I believe, that doesn’t have a prohibition against discrimination based on sex.”
In addition to the House resolution, attorneys general from the three final states to ratify—Nevada, Illinois and Virginia—are suing to require the archivist to certify and publish the ERA. Meanwhile, the Biden administration is currently defending the OLC opinion in court. Advocates are demanding Attorney General Merrick Garland withdraw the flawed OLC opinion, freeing the archivist to certify and publish the Amendment. The Feminist Majority is encouraging people to write directly to President Joe Biden, Vice President Kamala Harris and Garland.
“The ERA was introduced one hundred years ago and went out for ratification half a century ago. People have been working on this consistently, persistently and enthusiastically for the entire time, generation after generation after generation,” said Jenkins. “We hope is that this is the last generation that will have to fight for their rights this way. Congress is moving forward to create this world of lived equality.”
Just yesterday, Reps. Speier and Maloney joined with Sens. Richard Blumenthal (D-Conn.), Amy Klobuchar (D-Minn.) and Catherine Cortez Masto (D-Nev.) in a letter addressed to the head of the Office of Legal Counsel, Christopher H. Schroeder, demanding that he withdraw the flawed OLC opinion.
“We need the ERA now more than ever,” said Maloney. “The constitutional protection of the ERA would enshrine gender equality across all aspects of American life, including protecting the right to abortion and expanding access to abortion care.”
“We have to assert ourselves. We have to demand our rights. They are not going to be given to us,” said Speier.
On Thursday, ERA advocates are rallying at noon in front of the White House, then marching over to the Department of Justice to deliver a petition of over 62,000 signatures to Attorney General Merrick Garland.
“I personally have watched three generations of women fight for this,” said Smeal. “I won’t rest until it’s certified and published.”