The proposed Equal Rights Amendment attempts to legally eliminate all gender-based discrimination. Section 1 explicitly states 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.
On January 27th, the Virginia legislature finalized the passage of the Equal Rights Amendment and became the 38th - and potentially final - state to ratify the amendment.
The original deadline for ratification was March 1979, which was later extended to June 1982. Supporters of the Equal Rights Amendment claim that "because the deadline is in the preamble that proposes the ERA — not the text of the amendment itself — the deadline doesn't have to be observed". However, the Justice Department posted an opinion stating the ERA resolution has expired and is no longer pending before the state.
What, if any, legal precedent exist to support the pro-ERA supporters belief that the deadline does not apply? What, if any, legal precedent exist to support the Justice Department's view that the resolution has expired?
With the ratification of the Equal Rights Amendment in Virginia, 38 states have at some point ratified the Equal Rights Amendment, which meets the 3/4ths threshold.
However, when the Amendment passed Congress and went to the ratification process, it stipulated a 7 year window, which ended in 1979. That was later extended to 1982, but was not met. Moreover, several states rescinded the ratification of the amendment.
So this brings a number of Constitutional questions that have never been asked:
- Was it valid for Congress to set a time limit? [Edit: Has been answered in the affirmative]
- If the time limit was valid, and Congress passes a law reopening ratification, do states need to re-ratify the law?
- Are states allowed to rescind ratification of an amendment?
- Kentucky's governor vetoed the rescinding of ratification - but the constitution gives ratification power to state legislatures, not governors. Under the US Constitution, does the governor have that power?
Besides all these questions, there's also a deeper question:
- We have a case before the Supreme Court over the proper interpretation of Title VII's phrase prohibiting discrimination "on the basis of sex." The Obama administration used this phrase to expand discrimination protections to sexual orientation, and one of the cases being argued at the Supreme Court wants to expand that phrase to protect a transgender person's right to wear clothes matching their gender identity. Conservatives, on the other hand, point out that these situations are not what a plain reading of the statute says, and not what the people who passed it intended. Passing the ERA will raise these battles even further. Based on the fact that this phrasing is controversial - is it even wise to pass the Equal Rights Amendment as-is?
>IT'S OFFICIAL: My resolution to have Virginia ratify the #ERA has passed the state Senate. Virginia is now the 38th and final state to ratify the #ERA.
https://twitter.com/JCarrollFoy/status/1221885537231015936
The VA House ratified 2 weeks ago and the VA Senate ratified today. As the 38th state, the minimum required number have now ratified the ERA to have it added to the Constitution.
However, a legal fight to add it to the Constitution is ahead as the ERA contained an expiration date which expired a few decades ago. There will be arguments over whether Congress can add expiration dates, whether they did it correctly with the ERA, and whether and how Congress could extend ratification.
Here's the actual text of the 14th Amendment to the U.S. Constitution:
> All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
It has long been my contention that this constitutional provision specifically outlaws "age" laws - including driving age, age to purchase alcohol or tobacco products, etc.
If a citizen is a citizen at birth (or naturalization), then their rights and privileges under the law cannot be curtailed without "due process".
The only argument I have heard against this idea is related to "due process" and the government's compelling state interest to not have 3 year olds driving around the city streets. I'm fine with that, but I do think that depriving 18 year olds, for example, from purchasing alcohol amounts to 'collective punishment' for the acts of a few 18 year olds who couldn't handle it.
Perhaps a better approach would be to have people demonstrate, at any age, their ability to drive a car or handle alcohol - then license them for legality.
Lastly, I get that this is a super controversial position, but it's one I have held for the last 40+ years, and has continued well past the age where these laws affect me directly.
I'm willing to be persuaded!
>IT'S OFFICIAL: My resolution to have Virginia ratify the #ERA has passed the state Senate. Virginia is now the 38th and final state to ratify the #ERA.
https://twitter.com/JCarrollFoy/status/1221885537231015936
The VA House ratified 2 weeks ago and the VA Senate ratified today. As the 38th state, the minimum required number have now ratified the ERA to have it added to the Constitution.
However, a legal fight to add it to the Constitution is ahead as the ERA contained an expiration date which expired a few decades ago. There will be arguments over whether Congress can add expiration dates, whether they did it correctly with the ERA, and whether and how Congress could extend ratification.
Edit - fixed a word
