Earlier this month, the Justice Department declared the 1972 Equal Rights Amendment (ERA) to the Constitution dead, saying it's technically been dead for the last 40 years. But now three Democrat state attorneys general want to change that ruling. They are suing the archivist of the United States to force him to recognize Virginia's vote this week to ratify the Equal Rights Amendment and certify the measure as part of the Constitution.
The lawsuit filed Thursday comes after the National Archives and Records Administration said this week that the archivist would "take no action to certify the adoption of the Equal Rights Amendment," which would prohibit discrimination based on sex.
The three attorneys general, Mark Herring of Virginia, Kwame Raoul of Illinois, and Aaron Ford of Nevada argue that US laws do not give the archivist the power to decide whether to certify an amendment.
Amendment Can't Be Legally Resurrected
In its 38-page opinion published on Jan. 20, the Justice Department said recent efforts at ratification by Virginia Democrats to revive the ERA are futile. The Office of Legal Counsel, which are the in-house lawyers for the Executive Branch of the federal government, said the time limit Congress put on the ratification process back in the 1970s was valid and has long since passed, according to The Washington Times.
No action by state legislatures or Congress can resurrect it, the Justice Department said.
Last week, Virginia became the 38th state to ratify the ERA, even though Congress set a 1982 deadline for its ratification. The move by Virginia Democrats is being called "virtue signaling" or "showmanship" since the ERA has been ruled long dead.
"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," Assistant Attorney General Steven A. Engel wrote.
The act's original intent was to give women equal rights. But critics say it's poorly written, overly broad, and will have unintended consequences that could affect everything from abortion to maternity leave - even women's sports.
Amendment Would Take Away Opportunities for Women
During an interview with CBN News earlier this month, Senior Counsel Matt Sharp with Alliance Defending Freedom said the ERA would add sex as a protected classification under the Constitution.
"It would result in men being allowed to compete in women's sports and take away opportunities for women. It can also be used to enshrine abortion as a constitutional right and force taxpayers to pay for it," he explained.
Sharp added that the Constitution already offers women multiple protections.
"There is the Equal Protection Clause of the Constitution, ensuring that every American is treated equally under the law and we have numerous federal laws already on the books such as Title 9 and others that ensure women cannot be discriminated against," he noted. "What the ERA is going to do is actually undermine some of those existing protections and erode the hard-fought gains that women have made over the years."
Justice Ruth Bader Ginsburg to ERA Supporters: 'Start Over'
"The ERA is legally dead and this is an opinion shared by Justice Ruth Bader Ginsburg who recently opined that if the ERA proponents want to see this, they need to start over because this deadline is decades long gone," Sharp added. "This is a last-minute push by activists who ignored that deadline. This is a failed effort to try and push something that the states have ultimately rejected and they decided they didn't want in our Constitution."
Sharp believes ERA supporters could try to push this case all the way to the US Supreme Court.
"I think the other side is obviously very motivated. This may end up in the Supreme Court, but I think we can all agree that this deadline has passed. Even if it had not, the ERA is a bad law that we should not be pushing for to add to our Constitution," he concluded.