There’s a significant, leftist group of people and organizations across the United States who still believe the long-dead Equal Rights Amendment can be used as a bludgeon against conservative and Christian ideals.
That’s even though the U.S. Department of Justice Office of Legal Counsel has found, “Congress has constitutional authority to impose a deadline for ratifying a proposed constitutional amendment. It exercised this authority when proposing the Equal Rights Amendment and, because three-fourths of the state legislatures did not ratify before the deadline that Congress imposed, the Equal Rights Amendment has failed of adoption and is no longer pending before the states.”
The issue has arisen in recent years because Democratic lawmakers in Virginia, back in 2020, voted to ratify the proposal – and they made the claim they were now the 38th state to adopt the idea and it now is part of the U.S. Constitution.
The story line was again being promoted this week, with several “backers” of the ERA “holding press events” essentially “to promote a misleading, politically driven narrative about the long-expired constitutional amendment proposal,” according to an expert.
Among those pushing the idea was an advocacy organization called “Equal Means Equal” which launched the claim that the ERA has been “stolen” and attributing a current “constitutional crisis” to that action.
The ERA Coalition, NOW and others are, in fact, “demanding that the president, the attorney general and the archivist of the U.S. … take actions to assert that the ERA is now part of the Constitution.”
Not likely, explained the expert.
Douglas Johnson, director of the National Right to Life ERA Project, is NRLC’s subject matter expert on the Equal Rights Amendment, an issue on which he has worked directly, and written, for 40 years.
“ERA backers have mounted an assault on the integrity of the constitutional amendment process itself, but they are unlikely to succeed,” he explained. “In 40 years, not a single federal judge has accepted a single element of the legal claims made by ERA-revival litigants, while 26 federal judges have rebuffed them. In 2021, federal district Judge Rudolph Contreras, appointed by President Obama, ruled that the ERA ratification deadline was valid and that it would have been ‘absurd’ for the archivist of the U.S. to ignore the fact that the ERA expired decades before actions by the Nevada, Illinois, and Virginia legislatures.”
The idea of such an amendment first arose in 1923, but it never got any significant support until the 1970s. At that time the amendment was proposed, and states were told to vote, before a deadline expired.
Approval by 38 states was required, but only 35 voted to adopt. Then the deadline set by Congress passed. And decades later, two more states adopted it, and finally Virginia.
But during the same time ratification votes by Nebraska, Tennessee, Idaho, Kentucky and South Dakota were rescinded, taking the number of state approvals far below what is required.
In recent years, three states, Louisiana, Alabama and South Dakota, even have filed lawsuits to keep the ERA corpse in its grave.
Democrats in Congress recently voted to “cancel” the deadline that was set back then, but GOP members pointed out that Congress doesn’t have the ability to go back in time and change what happened then.
Bloomberg Law reported just last month that supporters of the ERA were planning lawsuits against local, state and federal policies based on the ERA, for example, arguing that the ERA bans any limitations on abortions.
National Right to Life, however, pointed out that current efforts in Congress to revive the idea cannot pass the Senate, and are “manifestly unconstitutional” as they use “bait-and-switch tactics executed across generations” to reach the goal.
The report also explained, “ERA-advocacy groups such as the ERA Coalition, Equal Means Equal, and the Columbia Law School ERA Project, and ERA backers in Congress such as House Oversight & Reform Committee Chairwoman Carolyn Maloney, D-N,Y., have been urging the president, Attorney General Merrick Garland, and/or the Archivist of the U.S. to take actions to affirm that the ERA is now part of the Constitution, or can be made so by majority votes in Congress.”
But those arguments are, essentially, “urging officials of the Executive Branch to ignore federal court rulings that the ERA has not been ratified,” according to the NRTL report.
Even that far-left activist, the late Justice Ruth Ginsburg, told an audience at Georgetown University Law Center several years ago that if ERA supporters want it, they need to “start over” from the beginning of the constitutional amendment process.
She pointed out that if latecomers to the approval column are accepted, those states that rescinded their approval would have to be addressed as well.
NRTL said, “The abortion issue continues to become ever-more prominent in the debate over the ERA. For decades, many ERA advocates denied or deflected pro-life concerns that the ERA would reinforce or expand ‘abortion rights.’ Even as late as 2020, some prominent ERA advocates continued to utter such implausible denials. For example, House Speaker Nancy Pelosi, during a February 13, 2020 House debate on the ‘deadline removal’ measure, said, ‘This [the ERA] has nothing to do with the abortion issue.'”
But, the report said, “In recent years, prominent ERA advocates have cast off this pretext, and it has now been almost entirely abandoned. At an October 21, 2021 hearing to promote ERA, chaired by Congresswoman Maloney in the House Oversight & Reform Committee, pro-ERA committee members and witnesses went out of their way to underscore their belief that the ERA could preserve federal constitutional ‘abortion rights.'”
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