“I have a daughter who intends to practice law, and the Constitution she will pledge to protect should fully protect her as well,” Attorney General Kwame Raoul said in a statement released after the oral arguments. “Until the United States Constitution reflects our society’s commitment to not go backward, none of us should stop fighting for equality.”
The push for an amendment barring discrimination on the basis of sex was first proposed in Congress in 1923. But it wasn’t until 1972 that an amendment finally cleared both chambers of Congress by two-thirds majorities and was sent to the states for ratification.
The proposed amendment reads: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
At issue in the case is a clause in the original resolution that said it would become valid when ratified by three-fourths of the states “within seven years from the date of its submission by the Congress.”
Thirty-eight states are needed for ratification of an amendment, but when the deadline lapsed in 1979, only 35 states had ratified the amendment, and six of those had taken subsequent votes to rescind their endorsement.
At one point, Congress tried to extend the deadline into 1982, but that was quickly challenged in court. Before the U.S. Supreme Court could hear arguments in the case, the extended deadline lapsed.
Years later, in 2017, Nevada became the first state to ratify the amendment after the deadline. Illinois followed suit in 2018 and Virginia voted to ratify the amendment in 2020, making it the 38th state to vote for ratification.
Shortly after the Virginia vote, Illinois and Nevada joined Virginia in filing a lawsuit seeking an order for National Archivist David Ferriero to publish and certify the amendment as part of the U.S. Constitution.
But in a ruling handed down in March 2021, a federal judge dismissed the case, saying among other things that certification by the archivist would have no legal effect, and therefore his refusal to certify did not cause the plaintiffs any harm and that Congress was within its authority to set a deadline for ratification.
Illinois and Nevada appealed that ruling. Virginia did not take part in the appeal.
In the U.S. Court of Appeals for the District of Columbia, Illinois and Nevada argued that the lower court got the decision wrong.
They argued that the process of ratifying constitutional amendments is spelled out in Article V of the Constitution, which says nothing about Congress having authority to set deadlines for ratification. They also argued that the Constitution is silent on whether states can rescind their ratification of an amendment after already having voted to do so.
Ferriero was joined by five states opposing the amendment — Alabama, Louisiana, Nebraska, South Dakota and Tennessee — in arguing that the ERA had not been duly ratified.
They argued that Congress does have a right to set deadlines for ratification and, in fact, has used a seven-year deadline several times, beginning with the 18th amendment that established prohibition, which was ratified in 1919.
They also argued that states have a right to rescind their ratification if a proposed amendment does not achieve the three-fourths threshold within a reasonable period of time.
“They didn’t intend the ERA to float in the ether for all eternity,” the lawyers wrote in their briefs. “Simply put, the world is different now than it was in 1972. Nearly every legislator that voted to ratify the ERA is either deceased or no longer in office. Even the youngest eligible voter that year would be nearly 70 years old now.”
Finally, they also argued that the Equal Rights Amendment itself is not really about preventing gender-based discrimination but, rather, “creating a federal constitutional backstop for abortion rights.”
A three-judge panel of the court took the case under advisement but did not indicate when they would issue a decision. Regardless of how they rule, the case is almost certain to be appealed to the U.S. Supreme Court.
“We are grateful to the attorneys general for pursuing this important litigation,” Zakiya Thomas, president and CEO of the ERA Coalition, said in a statement. “The ERA has met all the constitutional requirements for an amendment, and the archivist has a statutory duty to publish it. Publication will give official notice to all 50 states that the ERA is now the 28th Amendment.”