Alabama Attorney General Steve Marshall has filed a lawsuit in federal court to stop what he says is a belated and illegal attempt to ratify the Equal Rights Amendment, which was proposed by Congress in 1972 to prohibit discrimination based on sex but was not ratified by the required number of states.
The attorneys general for Louisiana and South Dakota joined Marshall in the lawsuit, filed Tuesday in U.S. District Court for the Northern District of Alabama, Western Division.
The three AGs allege that the archivist for the United States, who they say makes determinations on whether states have ratified amendments, is not recognizing a seven-year time limit set by Congress to ratify the ERA. They also allege the archivist, David S. Ferriero, is not recognizing that five states who initially ratified the ERA rescinded those decisions.
They ask the federal court to rule that the time to ratify the ERA has expired and that the five states’ rescissions are valid.
“If this constitutional bait-and-switch is successful, there will be dire consequences for the rule of law," Marshall said in a press release. “The people had seven years to consider the ERA, and they rejected it. To sneak it into the Constitution through this illegal process would undermine the very basis for our constitutional order.”
The ERA Coalition, an organization formed in 2014 to promote ratification of the amendment, issued a statement calling the lawsuit “a disgraceful exercise in fear mongering.”
“Alabama has filed this lawsuit to thwart the democratic process, and the will of the overwhelming majority of Americans to enshrine the fundamental right to sex equality in our Constitution,” the coalition said. “The Attorney General of Alabama has done a disservice to women, including the women of Alabama.”
The coalition is supporting a bill by U.S. Rep. Jackie Speier, D-California, that would repeal the deadline for ratifying the ERA.
A minimum of 38 states is required to ratify an amendment. According to the lawsuit, 35 states ratified the ERA, but five rescinded, leaving the ERA eight states short.
The attorneys general claim, however, that activists have advanced a “three-state strategy” based on a refusal to recognize the five rescissions or that the seven-year deadline, which was March 22, 1979, is binding. Nevada “purported” to ratify the ERA in 2017, and Illinois did the same in 2018, the lawsuit says. Virginia is poised to do so early next year and would be the 38th state if the activists’ plan is successful, the lawsuit says.
The attorneys general say the ERA is not necessary because the U.S. Supreme Court has determined that the Constitution already provides protection against discrimination based on sex, such as through the equal protection and due process clauses.
The lawsuit says the ERA would “expand the frontiers” of what qualifies as discrimination based on sex. They say that could jeopardize state laws regulating abortion, require taxpayer funding for abortion, and could result in costly legal challenges to long accepted practices like separate prisons for men and women and separate athletic teams for boys and girls in public schools and universities. It asserts that efforts to redefine sex based on gender identity, rather than biology, could drive some of those legal claims.
“While Alabama, Louisiana, and South Dakota are firmly committed to equality, the ERA would not promote true equality, but rather a far-left agenda,” Marshall said. ... “If activists want a new ERA, they should persuade their fellow Americans that it makes sense, then pass it through Congress and a new state ratification process."
Alabama never ratified the ERA.
The amendment said: “Equality of rights under the law shall not be abridged by the United States or by any state on account of sex. The Congress shall have the power to enforce, by approximate legislation, the provisions of this article.”
This story was updated at 4:33 p.m. to add a statement from the ERA Coalition.
Alabama and national politics.
Equal Rights Amendment Lawsuit by Mike Cason on Scribd