The Equal Rights Amendment has been dead for more than four decades, the Justice Department ruled Wednesday, and neither ratification by Virginia nor an effort to revive it by Congress can bring it back to life.
The Office of Legal Counsel, which serves as the in-house lawyers for the Executive Branch, said the deadline Congress set in 1972 for ratification is still valid, and has long since expired. Attempts to circumvent the deadline are futile, the lawyers said.
“We conclude 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,” wrote Assistant Attorney General Steven A. Engel.
The opinion is binding on the National Archives, which is the federal agency tasked with certifying new amendments.
But activists are still expected to press their case in court, asking judges to rule the deadline illegal and the ERA still viable.
Wednesday’s OLC opinion was released just hours before Virginia’s General Assembly convened its 2020 session with a new Democratic majority intent on ratification of the ERA.
Newly minted Speaker Eileen Filler-Corn listed the ERA as her first priority as she took the gavel, calling ratification long-overdue unfinished business.
“This House will pass the Equal Rights Amendment,” she vowed.
Backers say Virginia would be the 38th state to ratify, which in theory would give it enough support to become the 28th Amendment to the Constitution.
But the situation is not that clear cut.
Only 35 states had ratified the amendment within seven years, which was the deadline Congress originally set. Nevada and Illinois have ratified in the last few years. And some of the originally ratifying states have since revoked their ratifications — though as of now the National Archives still lists them as ratifying.
One of those, South Dakota, is part of a new lawsuit demanding that its revocation be recognized, the state be pulled from the official list of ratifying states and the National Archives return its ratification document so it isn’t included in official federal records.
The OLC opinion did not reach the question of whether revocations are valid, saying the expired time limit already makes the matter moot.
Alabama Attorney General Steve Marshall, who is leading the lawsuit that South Dakota’s a part of, said the Justice Department’s new opinion settles things.
“Congress has often included deadlines for ratification of constitutional amendments,” he said. “And when Congress sent the ERA to the states in 1972 with a seven year ratification deadline, Congress and the states understood the deadline to be binding.”
Democrats on Capitol Hill have written legislation intended to undo the deadline the previous Congress wrote in 1972, saying that would make the actions by Nevada and Illinois and the expected Virginia ratification valid.
But the OLC opinion Wednesday shot that option down, too, saying it would take a new proposal, with a two-thirds majority in both chambers, to update the deadline.
“When Congress uses a proposing clause to impose a deadline on the states’ ratification of a proposed constitutional amendment, that deadline is binding and Congress may not revive the proposal after the deadline’s expiration,” the OLC said.
The ERA would enshrine a prohibition against discrimination on the basis of sex into the Constitution.
It appeared on the path to victory, but by the late-1970s conservatives had rallied opposition, speculating the amendment could be used to advance abortion rights or force women into the military draft.
To amend the Constitution, Congress passes an amendment with a two-thirds vote in each chamber, then sends it to the states, three-fourths of which must vote for ratification.
The archivist is charged under the law with certifying whether an amendment has met the threshold for ratification.
In a statement last month the National Archives said it was awaiting the OLC’s opinion on the matter before announcing how it would treat a vote by Virginia this year.
The OLC’s opinion is binding on the Executive Branch, which includes the archives.
But analysts said the matter will still end up in the courts, with ERA backers hoping judges see things differently.
That’s a tough sell. Even liberal Supreme Court Justice Ruth Bader Ginsburg has said the amendment is dead and it would take a new amendment proposed from Congress to the states to revive ERA.
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