Virginia’s incoming Republican attorney general expects the courts to toss the state’s lawsuit trying to add an Equal Rights Amendment to the Constitution — but if judges don’t kill it, he may do it himself.
Jason Miyares will take over Virginia’s top law enforcement job next month, after having defeated two-term incumbent Attorney General Mark Herring.
Mr. Herring had led the legal battle for states trying to get a court to rule that the ERA is now fully ratified after Virginia’s legislature became the 38th state to approve the amendment in 2020. Mr. Miyares now has a chance to undo that.
A spokeswoman said they expect he won’t even have to.
“Attorney General-elect Miyares is currently reviewing all the cases handled by the Herring administration,” said Victoria LaCivita. “We have not yet made a decision on how the Miyares administration will handle the suit, as we anticipate it will be dismissed by the courts.”
If so, it would be the denouement of a tough two-year slide for the ERA.
The ERA, which would become the 28th Amendment to the Constitution, would guarantee that “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 had entered this decade confident they were about to make “ERA Now” — a longtime slogan of the movement — a reality.
After decades of stagnation, they believed the Virginia General Assembly’s vote early in 2020 finally gave them 38 states — the three-fourths threshold the Constitution requires to add an amendment.
All backers needed to do was get the federal government to recognize the feat. A decision by the executive branch, which as of 2021 is now controlled by a Democrat, would be sufficient. So would a resolution from Congress, also now controlled by Democrats, or even an order from the federal courts directing the National Archives to count the amendment.
But nothing about the ERA’s process has been so easy.
For one thing, when Congress submitted the amendment to the states in 1972, it set a deadline. If the full number of states didn’t ratify in time, the amendment died. And the deadline passed about four decades ago.
There’s also the issue of five states that ratified the ERA but have since withdrawn their approval. Without them, the amendment falls back well below the 38 states needed.
That’s where Virginia’s lawsuit comes into play.
The state, along with Illinois and Nevada, the three to vote to ratify after the 1979 deadline, went to court to demand they be counted — and that the states that tried to rescind their approvals be ignored.
A federal district judge in Washington said the states’ argument is flawed.
“Congress set deadlines for ratifying the ERA that expired long ago. Plaintiffs’ ratifications came too late to count,” ruled Judge Rudolph Contreras, an Obama appointee to the bench.
Virginia is now leading an appeal of that ruling to the U.S. Circuit Court of Appeals for the District of Columbia.
After the court granted an extension of time, the first briefs are due on Jan. 3.
Constitutional strategy
Some legal experts question what’s left for the ERA to achieve at this point, given Congress has already enacted laws governing sex discrimination and the Supreme Court has expanded interpretation of those laws to cover sexual orientation as part of sex.
ERA backers, though, say the symbolism and permanence of adding the language to the founding document is enough reason to proceed, and they hope to make 2022 a year of action.
Congress could go back and start again, proposing a new amendment without any of the deadline questions surrounding the 1972 version. But the chances of that passing on Capitol Hill, much less winning ratification in three-fourths of the states right now, is close to zero.
So Democrats on Capitol Hill hit on another strategy. They want Congress to pass a new bill retroactively canceling the old deadlines, which they say would have the effect of validating Virginia’s ratification.
Judge Contreras, in his ruling, didn’t decide whether that would be viable, but he did say it would have made his decision a tougher call.
And yet, ERA backers didn’t make much progress on Capitol Hill in 2021, as a rift appeared among the amendment’s backers over whether to focus on the courts or Congress.
The House, controlled by Democrats, did pass the deadline-canceling resolution in March, on a 222-204 vote.
The Senate, however, which Democrats took control of early in 2021, has yet to move. The Senate Judiciary Committee, which has jurisdiction over constitutional amendments, hasn’t even held a hearing.
Some ERA backers say that’s a strategic error.
ERA Action, a network of groups backing the amendment, is leading a drive for calls and tweets to try to press Judiciary Committee Chairman Richard J. Durbin to hold hearings on the deadline-canceling bill.
Right now, the legislation has just four sponsors: two from each party. That’s because backers have taken what’s been dubbed the “Noah’s Ark” approach of demanding one Republican join for each Democrat. There are plenty of other Democrats who would sign-on, but no more Republicans.
Biden’s inaction
Helene de Boissiere Swanson, a co-founder of Katrina’s Dream, which works on women’s issues from a religious perspective, said some backers have been focusing too much on the courts while ignoring the congressional side of the equation, and that could haunt the amendment’s backers.
“While I am very much wanting the Equal Rights Amendment, I agree with the new Virginia new attorney general,” she said. “I think folks in the women’s rights movement put the horse before the cart, and have complicated the process and have created a constitutional crisis in doing so.”
The Washington Times reached out to other ERA advocates for this story but did not receive responses.
The rift within the movement over strategy has been documented in press reports. One area of agreement among most backers, though, is that President Biden should be doing more.
He promised as much during his campaign: “Now that Virginia has become the 38th state to ratify the ERA, Biden will proudly advocate for Congress to recognize that 3/4th of states have ratified the amendment and take action so our Constitution makes clear that any government-related discrimination against women is unconstitutional,” his campaign website touted.
In fact, the White House has “done very little,” said Ms. de Boissiere, who in 2014 embarked on a 7,000-mile pilgrimage across the U.S. to promote the ERA, and who now stages vigils outside the president’s church in Delaware.
Backers say Mr. Biden could cut short all the wrangling in Congress and the courts with one quick move — order his Justice Department’s Office of Legal Counsel to reverse a Trump-era opinion that forbids the National Archives from counting Virginia’s ratification.
The Archives has already recorded Illinois and Nevada as ratifying, but the OLC ruling has stopped any further action.
In an October hearing, Rep. Deborah Ross, North Carolina Democrat, challenged Attorney General Merrick Garland on the matter. He seemed unfamiliar with the Trump-era ruling but sounded open to revisiting it.
“I think the first step is to find out what OLC is doing in this respect,” he said. “I don’t know what the status is with respect to this one. I certainly understand the argument, and I’ll see if I can find out what OLC is doing in this respect.”
If he does orchestrate a reversal, it wouldn’t be the first time. Earlier this month the OLC reversed a Trump-era ruling concerning prisoners released during the COVID-19 pandemic, and whether they should be required to return behind bars.
