Appeals court steals show on ERA amid Senate panel's bid to resurrect dead amendment

[Editor's note: This story originally was published by The Daily Signal.]

By Thomas Jipping
The Daily Signal

The Senate Judiciary Committee on Tuesday held a hearing, “The Equal Rights Amendment: How Congress Can Recognize Ratification and Enshrine Equality in Our Constitution.”

But even before the hearing could conclude, a federal appeals court ruling threw a monkey wrench into ERA backers’ bid to revive the long-dead 1972 amendment.

Advocates of the ERA want Congress to “recognize ratification” of the ERA that Congress proposed in 1972 even though the states refused to ratify it. The ERA died when its ratification deadline passed with fewer than the requisite three-fourths of the states ratifying it, as stipulated in the Constitution.

Article V of the Constitution spells out the amendment process. Votes of two-thirds of both houses of Congress may propose an amendment and specify whether states must ratify it through their legislatures or by state conventions. A proposed amendment becomes part of the Constitution when ratified by 38 states.

In March 1972, Congress proposed the following constitutional amendment with a seven-year ratification deadline: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

When its deadline passed, the ERA had been ratified by 35 states, fewer than the 38 required by the Constitution, and five of them had rescinded their support.

As everyone understood at the time, the 1972 ERA died more than 40 years ago.

Two issues dominated Tuesday’s hearing: Whether the ERA is still needed and whether Congress has any power to revive the 1972 amendment.

On the first point, supporters claimed that it would solve problems such as the “pay gap” between men and women. The issue that no one addressed at the hearing, however, was that the ERA cannot address problems like that.

Here’s why. The ERA prohibits denial of equality “on account of sex” by “the United States or by any State.” It applies to government action, not private action.

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Because sex discrimination in employment is illegal, however, any “pay gap” that exists must result from private, not government, action. ERA supporters, in other words, claim the ERA is needed for problems that it cannot address.

In addition to what the ERA cannot do, witnesses identified what it can be used for that most Americans would not support.

Jennifer Braceras, director of the Independent Women’s Legal Center, for example, explained that because the ERA itself does not define “sex,” today’s gender ideology activists would push for it to be interpreted to include sexual orientation and gender identity. That, in turn, would threaten policies and programs specifically designed to support women and girls.

Braceras was on solid ground there. In hearings that were held before Congress proposed the ERA in 1972, and long before gender ideology was sweeping the country, then-Assistant Attorney General William Rehnquist, who would later become chief justice of the Supreme Court, warned that the ERA could threaten such programs and undermine women’s sports.

Braceras also warned that, especially when driven by gender ideology, the ERA could be used to prevent protecting the unborn, mandate taxpayer funding of abortion, or threaten the tax-exempt status of churches that ordain men but not women. ERA advocates long ago said they wanted to use it for such purposes.

The other issue at Tuesday’s hearing was the one reflected in its title; namely, whether Congress has any authority to revive the ERA by retroactively removing its ratification deadline. Professor Elizabeth Price Foley, who teaches constitutional law at Florida International University, explained that Congress’ role in the constitutional amendment process ends when it proposes an amendment by passing a joint resolution that includes its text and sends it to the states.

She rejected the argument by the amendment’s supporters that the ERA’s ratification deadline was invalid because Congress placed it in the joint resolution’s introductory clause, rather than in the proposed amendment’s text.

Foley explained that neither Congress, nor the states, vote only on the amendment’s text. Rather, they vote on the entire resolution, including the deadline. Foley argued that if Congress can, at any time, retroactively change the terms under which constitutional amendments had previously been proposed or ratified, Congress could unilaterally change the Constitution at will.

Most of these arguments had been made in previous ERA hearings, and witnesses such as Foley and former Stanford law professor Kathleen Sullivan had testified before. But the surprise of the hearing came when the Judiciary Committee’s ranking member, Sen. Lindsey Graham, R-S.C., interrupted his own questioning to announce that the U.S. Court of Appeals had just issued a decision regarding the topic of that very hearing.

Even though the ERA had died decades earlier, the legislatures of Nevada, Illinois, and Virginia passed what they claimed were ratification resolutions in just the past several years and that thus the magic number of 38 had been reached. When, on advice from the Justice Department, the archivist of the U.S. declined to certify that the ERA had been successfully ratified, those states sued to force him to do so.

The U.S. District Court rejected their arguments in 2021, holding that the archivist’s certification was not required for a proposed constitutional amendment to become part of the Constitution. The U.S. Court of Appeals for the D.C. Circuit heard arguments last September.

On Tuesday, in the middle of the Judiciary Committee’s hearing on the issue, the D.C. Circuit unanimously affirmed the district court, refusing to order the archivist to certify the 1972 ERA. Judge Robert Wilkins, appointed by President Barack Obama, wrote the opinion and was joined by Judges Neomi Rao, a Trump appointee; and Michelle Childs, appointed by President Joe Biden.

The court emphasized the high legal standard for a court to order an executive branch official, such as the archivist, to take such an action. The states, Wilkins wrote, had not established that their right to such an order was “clear and indisputable.”

Significantly, the court also said that the states had cited “no pervasive authority” that Congress may not specify the mode of state ratification in the joint resolution’s introductory clause. If that language can be placed in the introductory clause, Wilkins asked, “then why not also the ratification deadline?”

Both Tuesday’s hearing, which retreaded familiar ground, and the D.C. Circuit Court’s decision, which addressed a novel issue, show that ERA supporters should follow the advice of the now-deceased Justice Ruth Bader Ginsburg and simply “start over.”

[Editor's note: This story originally was published by The Daily Signal.]

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