RICHMOND, Va. — Three Democratic state attorneys general sued a U.S. government official Thursday, seeking to force him to recognize Virginia’s recent vote to ratify the Equal Rights Amendment and adopt the measure in the Constitution.
The lawsuit filed against the archivist of the United States comes after the National Archives and Records Administration said this week that David Ferriero would “take no action to certify the adoption of the Equal Rights Amendment.“
Virginia on Monday became the 38th state to ratify the measure that supporters say will guarantee women equal rights under the law. Constitutional amendments must be ratified by three-quarters of the states, or 38. But the ERA’s future is uncertain, in part because of a ratification deadline enacted by Congress that passed decades ago.
Many legal observers have long expected the issue to make its way to the Supreme Court. Thursday’s lawsuit brought by Virginia Attorney General Mark Herring, Nevada Attorney General Aaron Ford and Illinois Attorney General Kwame Raoul argued that the deadline, which was first set for 1979 and later extended to 1982, is not binding.
“After generations of effort, the women of this country are entitled to their rightful place in the Constitution. This Court should compel the Archivist to carry out his statutory duty of recognizing the complete and final adoption of the Equal Rights Amendment,” the lawsuit said.
“Women have always been endowed with equal rights, even though our country has wrongly failed to recognize them,” said Ford in a news release. “These rights are entitled to their rightful place in the Constitution and I am committed to ensuring they are permanently written into our nation’s history and its future.”
The press office of the National Archives and Records Administration referred a request for comment to the Department of Justice, which declined comment.
The lawsuit, filed in U.S. District Court for the District of Columbia, argued that U.S. laws do not give the archivist the power to decide whether to certify an amendment. They contend the archivist’s duty to certify the amendment is “mandatory and purely ministerial.”
In declining to certify the ERA, the archives said it was following advice from the U.S. Department of Justice, which issued an opinion this month saying it was too late for states to sign off because of the deadline. The department said the amendment process must begin anew.
In the lawsuit, the attorneys general argued that the deadline instituted by Congress is not binding because the time limitation was in a resolution preamble, not in the text of the article that was sent to the states for consideration. Additionally, the attorneys general said, the U.S. Constitution doesn’t explicitly give Congress the power to set a timeline for states to ratify an amendment.
They noted that the last amendment to be added in 1992 - the 27th Amendment limiting the ability of members of Congress to raise their own pay - took more than 200 years to be ratified by 38 states.
The ERA states, in part, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
Supporters say it would offer stronger protections in sex discrimination cases and give Congress firmer ground to pass anti-discrimination laws.
Opponents warn it would erode commonsense protections for women, such as workplace accommodations during pregnancy. They also worry it could be used by abortion-rights supporters to quash abortion restrictions on the grounds they discriminate against women.
Some opponents also say the fact that five states that initially approved the ERA later moved to rescind their ratifications means it can’t be adopted in the Constitution. The lawsuit argues that those states’ efforts are “constitutionally unauthorized and without legal effect.”
Legal scholars took different views Thursday of the newly filed lawsuit.
Jonathan Turley, a law professor at George Washington University, said the court would have to adopt “a parade of constitutional novelties” to declare ratification.
Erwin Chemerinsky, a constitutional law scholar and dean of the Berkeley School of Law, said he thinks the plaintiffs have a “persuasive argument” that 38 states have ratified the text of the amendment. But he added he also sees a strong argument that the issues in the lawsuit are up to Congress, not the courts, to ultimately decide.
Two other federal lawsuits have been filed over the ERA, one supporting its adoption and the other opposing it, and Chemerinsky said he expected one or more of the three cases to reach the Supreme Court.
A. E. Dick Howard, a constitutional law expert at the University of Virginia, said there’s a long way to go before questions about the ERA will be settled.
“My goodness, can you imagine the number of parties and other states that would want to be heard in this?“ he said. “The amicus briefs that would be filed from left and right? This is a hot topic.”