Equal Rights Amendment

[noblepa]

CNN - Three Senate Republicans urge the Archivist to not certify the ERA.

https://www.msn.com/en-us/news/politics ... d=msedgntp

I haven't been following the ERA much, but I do remember that in the last few years, proponents have argued that the ERA had achieved the required 38 state ratifications, while opponents argue that they deadline has expired.

I don't quite understand what the archivist's role in this is. I thought that SCOTUS ruled in a case about the 19th Amendment (women's suffrage) that, essentially, an amendment is considered ratified when the Secretary of State says it is. This, I believe was in response to a case charging that the 19th had not been properly ratified. So, it would seem that it is the SOS who certifies it, not the archivist. In that case, I believe SCOTUS side-stepped the issue, saying that it was a political question.

When did that change? Did it change?

If that is true, can't the current SOS, Anthony Blinken certify it as having been ratified?

A related question: If SCOTUS rules that a particular issue, such as amendment ratification, is a political issue and declines to rule on it, can/will a lower court even address the question?

[bob]

When did that change? Did it change?

It changed in 1985.

A related question: If SCOTUS rules that a particular issue, such as amendment ratification, is a political issue and declines to rule on it, can/will a lower court even address the question?

A lower court could, but a lower court's ruling that contradicts a U.S. Supreme Court ruling will be quickly appealed.


The backstory is the current Archivist, David Ferriero, will step down in April. So there's the "concern" he'll do a going-out-the-door approval.

And the Archivist is a Senate-confirmed position, so Ferriero's successor will feel the wrath during confirmation hearings.


Some pro-ERA group had sued to force Archivist to certify the ratification, but those suits were dismissed for lack of standing. It is doubtful they'll win on appeal.

The previous administration had issued an opinion the ERA is dead and the Archivist can't revive it. Biden's administration, notably, has not rescinded that opinion.

[Tiredretiredlawyer]

https://feminist.org/news/the-equal-rig ... amendment/

“The Equal Rights Amendment Has Been Ratified. It Is the Law”: U.S. House Resolution Declares ERA 28th Amendment

In an opinion issued on Wednesday, Jan. 26, the Department of Justice’s Office of Legal Counsel (OLC) helped clear the way for the Equal Rights Amendment, according to leading ERA advocates. In January of 2020, under Trump, the OLC issued an opinion arguing that Congress had no power to remove a seven-year timeline for ratification in the preamble of the ERA and that therefore three recent state ratifications were invalid. The OLC opinion issued by the Biden administration strongly affirms the power of Congress to remove the deadline. The opinion follows the overwhelming consensus among constitutional law scholars.

According to a recent amicus brief authored by former Stanford Law School Dean Kathleen Sullivan and signed by Laurence Tribe, Dorothy Roberts, Kimberlé Crenshaw, Catharine MacKinnon and 11 other top constitutional scholars:

“The language of Article V is mandatory: an amendment to the Constitution ‘shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states.’ Nor does the text of Article V envision a role for an executive branch officer to assert his discretion regarding the validity of the amendment. The text requires no additional action by Congress or by anyone else after ratification by the final State.”

In a press conference, Reps. Carolyn Maloney (D-N.Y.) and Jackie Speier (D-Calif.) responded to the newly issued OLC memo by saying that the ERA has already been ratified and should be recognized as the 28th Amendment—and that the archivist should do his ministerial duty to certify and publish the ERA. Action by Congress could clarify this, but is not necessary for publication of ERA.

[Tiredretiredlawyer]

https://www.whitehouse.gov/briefing-roo ... amendment/

Statement from President Biden on the Equal Rights Amendment
JANUARY 27, 2022
•
STATEMENTS AND RELEASES

Today, as the House announces a resolution on the Equal Rights Amendment, I once again want to express my support for the ERA loudly and clearly. I have been a strong supporter of the ERA ever since I first ran for the Senate as a 29-year-old. We must recognize the clear will of the American people and definitively enshrine the principle of gender equality in the Constitution. It is long past time that we put all doubt to rest. I am calling on Congress to act immediately to pass a resolution recognizing ratification of the ERA. As the recently published Office of Legal Counsel memorandum makes clear, there is nothing standing in Congress’s way from doing so. No one should be discriminated against based on their sex—and we, as a nation, must stand up for full women’s equality.

[Foggy]

So now what's it gonna take to get it published as the 28th Amendment?

[Reality Check]

So now what's it gonna take to get it published as the 28th Amendment?

The way I read the original post it is up to the National Archivist to declare the amendment ratified and he is not saying if he will or won't. The Barr DOJ Office of Legal Counsel had issued a legal opinion in 2020 that it was not legally ratified but Biden's DOJ has pretty much voided that opinion.

Edit: I read another article and the OLC did not rescind the earlier opinion but said this:

The OLC said in a new opinion released last month that its 2020 memo is "not an obstacle either to Congress's ability to act with respect to ratification of the ERA or to judicial consideration of questions regarding the constitutional status of the ERA." The office did not withdraw the 2020 memo nor instruct the archivist to publish the ERA.

David Ferriero is the Archivist and is leaving in April. He would probably prefer that Congress give him the cover of passing a resolution instructing him to certify the ERA. The House has done so but the Senate has not.

[bob]

There's also pending litigation to compel the archivist to certify, but that's going nowhere.

So, yeah, the WAG is the OLC's latest memo will "inspire" the exiting archivist to certify before he leaves.

Otherwise, everyone will be waiting for the next archivist to act.

[Reality Check]

There's also pending litigation to compel the archivist to certify, but that's going nowhere.

So, yeah, the WAG is the OLC's latest memo will "inspire" the exiting archivist to certify before he leaves.

Otherwise, everyone will be waiting for the next archivist to act.

I hope you are correct. The Senate GOP will be mighty PO'ed if he does and that's a good thing. I read about the lawsuit in one of the articles - dismissed for lack of standing and probably dead.

[bob]

"For completeness," the archivist must be confirmed by the Senate.

So I expect at least one senator to showboat over this issue during the nominee's confirmation, regardless of what the outgoing archivist does (and does not) do.

[Azastan]

"For completeness," the archivist must be confirmed by the Senate.

So I expect at least one senator to showboat over this issue during the nominee's confirmation, regardless of what the outgoing archivist does (and does not) do.

Then the outgoing archivist might very well think that posterity might be best served by certifying.

[bob]

Then the outgoing archivist might very well think that posterity might be best served by certifying.

I would not be surprised if the outgoing archivist certifies.

I would be surprised if no senator brings up the ERA during the nominee's confirmation hearing. Ditto with electoral votes and prior presidents' records.

[raison de arizona]

The Catholic Church U.S. bishops adamantly oppose the ERA. Because of course they do.

U.S. bishops urge senators to oppose revival of the Equal Rights Amendment

Amid an attempt by the U.S. Senate to revive the Equal Rights Amendment (ERA) — which failed in 1982 — the Catholic bishops of the United States have urged senators to vote down the proposal, citing possible threats to religious freedom as well as a likelihood that the amendment would be used to strike down pro-life laws and promote public funding for abortion.

https://www.catholicnewsagency.com/news ... -amendment

[Resume18]

The Catholic Church U.S. bishops adamantly oppose the ERA. Because of course they do.

U.S. bishops urge senators to oppose revival of the Equal Rights Amendment

Amid an attempt by the U.S. Senate to revive the Equal Rights Amendment (ERA) — which failed in 1982 — the Catholic bishops of the United States have urged senators to vote down the proposal, citing possible threats to religious freedom as well as a likelihood that the amendment would be used to strike down pro-life laws and promote public funding for abortion.

https://www.catholicnewsagency.com/news ... -amendment

You don't say . . .

[Sam the Centipede]

Honest question: the objections and support for the Equal Rights Amendment seem to revolve around abortion issues.

I don't understand the reaasoning (admittedly I haven't thought about it). Access or not to abortion is not dependent on sex qua sex, it's dependent on being pregnant. Of course, only women (including girls) get pregnant, but why is that relevant? A non-pregnant woman has no access to abortion any more than a non-pregnant man. Similarly women don't have access to prostate examinations. (Sorry if those seem silly analogies, it is an honest question.)

What am I missing?

[noblepa]

I've kinda lost track of this issue.

Has the ERA been certified?

For that matter, is the Archivist's certification really anything more than a formality? The Constitution says that an amendment becomes part of the document when it is ratified by 2/3 of the state legislatures. It says nothing about certification by the Archivist. So, the statute shifting the responsibility for certification to the Archivist can not add or subtract from the requirements for passage specified in the Constitution.

It seems to me that his/her certification is like the VP's certification of electoral votes. He has no authority to refuse to certify an amendment that has been ratified by the states, just as the VP has no authority to refuse to certify the electoral vote.

[bob]

I would not be surprised if the outgoing archivist certifies.

Both the outgoing and incoming archivists took the position that certification was unwarranted until the court cases were resolved.

* * *

Has the ERA been certified?

No; the opposite.

The previous administration's DOJ concluded the ERA's deadline was valid and had expired. Various courts, including the D.C. Cir., essentially agreed, concluding judicial relief was unwarranted because the deadline was, at best, disputed. (Mandamus relief is permitted only when the government action is ministerial in nature; because there's a dispute over the deadline, ergo, this action isn't ministerial and the courts can't compel it.)

"For completeness": the D.C. Cir.'s ruling.

[much ado]

So, I don't quite understand. Courts have decided that no additional requirements can be added to the qualifications listed in the Constitution for the office of President, like release of previous years tax forms. Yet, courts have decided that additional restrictions can be added to the requirements listed in the Constitution for ratification of an amendment to the Constitution.

How does that make sense?

ETA: I guess it was the DOJ that determined that the time restriction on the ERA was valid, not the courts, but it still does not make sense.

[bob]

So, I don't quite understand. Courts have decided that no additional requirements can be added to the qualifications listed in the Constitution for the office of President, like release of previous years tax forms. Yet, courts have decided that additional restrictions can be added to the requirements listed in the Constitution for ratification of an amendment to the Constitution.

How does that make sense?

ETA: I guess it was the DOJ that determined that the time restriction on the ERA was valid, not the courts, but it still does not make sense.

The D.C. Circuit's ruling discusses this. Basically, it is arguable the statute formalizing the archivist's role did give the archivist the discretion to determine validity. And these cases are different because the ERA itself had a deadline baked in; as baked-in deadlines aren't unconstitutional, someone has to examine and apply the deadline.

But these cases are more about standards the courts apply more generally. Mandamus relief is rare and is granted only when it is clearly available.

[Lani]

I spent over 10 years promoting the ERA. Organized events, interviews, training, chairing some organizations, etc. Had police protection for awhile.

Older women were very concerned that their husbands would divorced them for younger wives because of the ERA. Nope. ERA provided help.
Happened all the time w/o the ERA. Moms would be suddenly find themselves in poverty, childcare, cost when it happened. (I worked on some of the cases.)

Businesses didn't want to pay women what they paid to men. Some companies required women to prove that they were not pregnant before a job would be offered. Most companies accepted sexual harassment - which was caused by women, of course. Just like rape, it was the woman's fault. Sigh.

I gathered with others in Lafayette across the outside the White House during the night as time ran out. And I moved to my new home.

[AndyinPA]

Funny about that. Men rule the world, but the women get blamed for everything that goes wrong.

[raison de arizona]

xpost

US Senate to vote on Equal Rights Amendment, a century after introduction

https://www.reuters.com/world/us/us-sen ... ce=twitter

The U.S. Senate is set to vote on Thursday on a measure that could allow the Equal Rights Amendment to be added to the Constitution, though Republican opposition will likely doom the measure to failure.

Top Senate Democrat Chuck Schumer called the amendment, known as the ERA, crucial since the Supreme Court last year ended the national right to abortion, sparking a wave of new bans on the procedure in Republican-led states.

"Anyone who thinks the ERA isn't necessary at a time like this isn't paying attention to the terrible things happening in this country," Schumer said in a Senate speech on Tuesday. "We need the ERA more than ever, ever before."

It is all but certain to fail because it would require the support of nine Republicans to reach the 60-vote threshold to advance in the Senate where Democrats hold a narrow 51-49 majority.

Days after President Joe Biden launched his reelection bid, the vote highlights how women's rights will likely be an issue in the campaign. Biden voiced his support for the ERA last year.

[AndyinPA]

https://apnews.com/article/equal-rights ... c030259fe4

WASHINGTON (AP) — Senate Republicans on Thursday blocked a Democratic measure to revive the Equal Rights Amendment, dealing yet another blow to supporters who have pushed for more than five decades to amend the Constitution to prohibit discrimination based on sex.

Democrats failed to win the necessary 60 votes to move forward with the resolution, which would have removed a 1982 deadline for state ratification and reopened the process to amend the Constitution.

The 51-47 vote included support from two Republicans, Maine Sen. Susan Collins and Alaska Sen. Lisa Murkowski — well short of the 10 GOP votes needed.

[raison de arizona]

85 Percent of Voters Want Congress to Pass the Equal Rights Amendment
The ERA is a nearly 100-year-old measure that would enshrine equal rights for all genders in the Constitution.

Fifty years after the Equal Rights Amendment (ERA) was initially passed in Congress, an overwhelming majority of likely voters want the provision aimed at guaranteeing equal rights for all genders to go into effect.

Recent polling from Data for Progress finds that 85 percent of likely voters support Congress passing the ERA to give it a second chance at being adopted as a constitutional amendment. Support for the amendment is bipartisan, with 93 percent of Democrats and 79 percent of both independents and Republicans agreeing that the provision should be passed.

Poll respondents further said that they would favor politicians who support the ERA. Fifty-seven percent of likely voters said they would be more likely to vote for a candidate who supported the ERA’s passage, including 75 percent of Democrats.

Passing the ERA again is one of the pathways that lawmakers can take in order to have the ERA officially adopted as an amendment to the Constitution. In order to have an amendment adopted, two-thirds of states, or 38 states, must ratify the measure. That threshold was passed in 2020, when Virginia became the 38th state to do so. But the Trump administration blocked the ERA’s adoption, saying that the seven-year deadline that was set in 1972 to have states ratify the measure had passed.

https://truthout.org/articles/85-percen ... amendment/