States Sue to Include Equal Rights Amendment in the U.S. Constitution

Photo by Michael Kleen

Three states have sued to force the federal government to recognize the Equal Rights Amendment as an adopted amendment to the Constitution, because denying reality is what we do now when we don’t get what we want.

This week, Virginia did not become the 38th state to ratify the Equal Rights Amendment, as supporters claim, because the deadline to ratify the 1972 ERA expired on June 30, 1982–37 years ago. Additionally, five states that initially voted to ratify the ERA later rescinded their ratification prior to the deadline. In 2017, 2018, and 2020, Nevada, Illinois, and Virginia held symbolic votes to ratify the expired amendment.

Now Democratic state’s attorneys from those three states are suing to force the federal government to recognize the Equal Rights Amendment as an adopted amendment to the U.S. Constitution.

Both the National Archives and Records Administration (NARA) and the Department of Justice (DOJ) have stated the 1972 ERA has not, and will not be adopted. According to NARA, “The Office of Legal Counsel (OLC) has concluded ‘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.'”

Supporters of the ERA claim the deadline has not lapsed because the time frame is not included in the amendment’s body text, which is ridiculous. No other proposed amendment is held to that standard. Why ever include a deadline in the first place?

The Joint Resolution of March 22, 1972, 86 STAT 1523, states plain as day: “That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress.”

For over thirty years, no states attempted to ratify the 1972 ERA. It was a dead issue.

According to the OLC, “Congress took the unprecedented step of voting, with a simple majority in each House, to extend the deadline by three years, until June 30, 1982. See 92 Stat. 3799 (1978). That new deadline came and went, however, without additional ratifications. The ERA thus failed to secure the necessary ratifications within either of Congress’s deadlines.”

Supporters also argue that states can’t rescind their prior ratifications. Rescinded ratifications are “constitutionally unauthorized and without legal effect.” Not according to the courts. In Idaho v. Freeman, a federal judge ruled that a state can rescind its ratification of a constitutional amendment. The Supreme Court stayed that decision because the issue was moot. The deadline had already expired.

Though not taking a position on the lower court’s decision, in effect the Supreme Court was acknowledging the ERA failed to pass in the required time. “Consequently, the Amendment has failed of adoption no matter what the resolution of the legal issues presented here,” the Court decided.

There’s nothing wrong with supporting an Equal Rights Amendment, but the 1972 ERA is dead.

The Trump Era should be considered the era of futile gestures. To get Trump’s tax returns, California tried to pass a law requiring presidential candidates to disclose their tax returns. The California Supreme Court unanimously ruled that law was unconstitutional. Democrats in Congress tried to get Trump removed from office through impeachment; that effort will die in the Republican-dominated Senate, as everyone predicted. Now three Democratic states attorney’s are suing to adopt a failed constitutional amendment. That effort will also flop.

Author: Michael Kleen

Michael Kleen is an author, raconteur, and occasional traveler. He has a M.A. in History and M.S. in Education. He enjoys studying military history, folklore, and philosophy.

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