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AG Raoul sues to force ERA certification

Thursday, Jan 30, 2020

* I told subscribers about this a couple of days ago…

Attorney General Kwame Raoul today joined Nevada Attorney General Aaron Ford and Virginia Attorney General Mark Herring in filing a lawsuit to ensure the federal government acknowledges that the Equal Rights Amendment (ERA) is now the 28th Amendment to the Constitution. The ERA guarantees equal rights for all Americans regardless of their sex.

Raoul and the attorneys general filed a lawsuit today in the U.S. District Court for the District of Columbia against the Archivist of the United States. In the lawsuit, the attorneys general ask the court to direct the archivist to perform his statutory duty to certify the ERA as the 28th Amendment to the U.S. Constitution.

“Equal rights are not contingent upon a person’s gender or sex, which is why I was proud to vote in support of the Equal Rights Amendment as an Illinois state senator, and I am committed to continuing to fight for the ERA to be recognized as the 28th Amendment,” Raoul said. “It is past time that we ensure women across the country have the constitutional equality to which they are entitled, and I look forward to my daughter — who aspires to study law — being able to one day, when sworn into the bar, take an oath to promise to support a constitution that recognizes her right to equality under the law.”​

“I am so proud that Virginia was the 38th and final state needed to ratify the ERA, finally pushing us over the edge and enshrining gender equality in our nation’s founding document. For too long, women have not been afforded the same protections as men under the Constitution,” Herring said. “We now have this historic opportunity to ensure that equal rights regardless of sex are added to the Constitution. Virginians have made it clear that it is their will that the ERA be ratified and I now have the great honor of continuing that fight to make sure that gender equality is enshrined in the U.S. Constitution, guaranteeing equality for generations of women to come.”

“Women have always been endowed with equal rights, even though our country has wrongly failed to recognize them,” Ford said. “These rights are entitled to their rightful place in the Constitution, and I am committed to ensuring they are permanently written into our nation’s history and its future. Advancing civil rights is one of my Administration’s main areas of focus. The gravity of this movement should not be underplayed—today we are advocating for women’s rights here in Nevada and all over the country, and we are taking an essential stride towards inclusivity.”

The ERA states that “[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Though an equal rights amendment was proposed as early as 1923, the ERA was not adopted by Congress until 1972, when it passed with broad, bipartisan support. By 1977, 35 states had ratified the ERA. Illinois ratified the ERA in 2018. When combined with Nevada’s ratification in 2017 and Virginia’s ratification vote just this Monday, a total of 38 states have now ratified the ERA, passing the constitutional threshold required for the ERA to become the 28th Amendment. With the ERA, the U.S. Constitution provides an explicit guarantee of protection against discrimination based on sex. These protections are forever enshrined in the Constitution.

“This country is ready for Constitutional equality for women,” Carol Jenkins, Co-President and CEO of the ERA Coalition/Fund for Women’s Equality said. “Our research shows that 94 percent of all Americans believe in it. We have worked tirelessly for nearly 100 years. This movement cannot be stopped. The Constitution must be amended and it will be.”

In the complaint, Raoul and the attorneys general explain that under the text of the Constitution, an amendment approved by Congress automatically becomes a valid part of the Constitution as soon as it is ratified by the legislatures of three-fourths of the states. The complaint further asserts that the U.S. Archivist does not have any discretionary authority over which amendments are added to the Constitution. As a result, the Archivist is legally obligated to recognize that the ERA has become part of the Constitution. Raoul and the attorneys general are asking the court to order the Archivist to do his duty and certify that the ERA, as the 28th Amendment to the Constitution, prohibits discrimination on the basis of sex.

The lawsuit is here.

- Posted by Rich Miller        

35 Comments
  1. - Oswego Willy - Thursday, Jan 30, 20 @ 10:15 am:

    This will be a fascinating case directed not necessarily on the merits of the amendment but a case that looks at how long can the process still be deemed acceptable to the amendment’s viability.

    Is anything then “ever dead” when it comes to governing?


  2. - Todd - Thursday, Jan 30, 20 @ 10:16 am:

    don’t forget the issue of other states repealing their ratification. This is going to be fascinating and create new constitutional law


  3. - RNUG - Thursday, Jan 30, 20 @ 10:18 am:

    While there is some controversy about it, SCOTUS first allowed a couple of year extension to 1982 on the original 1979 deadline, and then dismissed the case due to inaction by any State before the (maybe) revised 1982 deadline.

    At this point, it is probably a long shot to get SCOTUS to revive the issue. And, given ERA laws passed by the majority is States, mostly irrelevant.

    My guess is SCOTUS won’t judicially extend the previous deadline set by Congress, and say it is up to Congress to make such a change to the deadline.


  4. - Grandson of Man - Thursday, Jan 30, 20 @ 10:19 am:

    “Women have always been endowed with equal rights, even though our country has wrongly failed to recognize them”

    Exactly this, and the same with other rights. Rights are not “given,” they are recognized.

    National Archives won’t certify the amendment because per the DOJ, a Congressional ratification deadline has long-expired. Pressure via a lawsuit is needed, thought in a right wing judicial and political environment, what is the likelihood this lawsuit will ultimately succeed? But good for the AG for fighting for it.


  5. - RNUG - Thursday, Jan 30, 20 @ 10:20 am:

    Not necessarily new legal ground
    SCOTUS in the 1982 dismissal did somewhat address the issue of rescinding prior approval of a Constitutional amendment.


  6. - RNUG hi - Thursday, Jan 30, 20 @ 10:22 am:

    == how long can the process still be deemed acceptable to the amendment’s viability ==

    The court kind of ruled on that in the 1982 dismissal.


  7. - Oswego Willy - Thursday, Jan 30, 20 @ 10:26 am:

    === The court kind of ruled on that in the 1982 dismissal.===

    The shutting of the door that may occur here could finally clarify what does… constitute… the process time?

    It’s just the end of the beginning?


  8. - Bruce (no not him) - Thursday, Jan 30, 20 @ 10:52 am:

    I was and am for the ERA, but this amendment timed out in 1982. Give it a break. And start over. Do it right this time. 38 years later is just way over the top.


  9. - 47th Ward - Thursday, Jan 30, 20 @ 10:52 am:

    ===And, given ERA laws passed by the majority is States, mostly irrelevant.===

    I don’t think you intended that to read the way it does, but if I told my wife that passing the ERA was irrelevant I’d be sleeping on the couch for a month. Maybe longer.

    In the current political environment, there is no way SCOTUS or DOJ or the Archivist or even Congress is going to extend the deadline for this. But that doesn’t mean it isn’t worth fighting for. I am very glad Raoul is bringing Illinois voices to the table. It gives me hope that someday things might change.


  10. - Steve - Thursday, Jan 30, 20 @ 10:57 am:

    Who’s not ready for the ERA? No more sex segregated sports teams. Everyone knows women are just as good as men.


  11. - Rich Miller - Thursday, Jan 30, 20 @ 10:59 am:

    ===38 years later is just way over the top===

    The 27th Amendment was proposed in 1789 and ratified 202 years later in 1992.


  12. - Oswego Willy - Thursday, Jan 30, 20 @ 11:01 am:

    === No more sex segregated sports teams. Everyone knows women are just as good as men.===

    Is that you Stephen Miller?


  13. - Oswego Willy - Thursday, Jan 30, 20 @ 11:02 am:

    === The 27th Amendment was proposed in 1789 and ratified 202 years later in 1992.===

    This is where I’m quite interested in how this can play out when discussing parameters of time.


  14. - Sue - Thursday, Jan 30, 20 @ 11:04 am:

    Nice way for our AG to divert attention from corruption. He is a joke


  15. - 47th Ward - Thursday, Jan 30, 20 @ 11:04 am:

    Steve, why are you so afraid of women?


  16. - Oswego Willy - Thursday, Jan 30, 20 @ 11:05 am:

    - Sue -

    No need for you to make a federal case… about a federal investigation.


  17. - 47th Ward - Thursday, Jan 30, 20 @ 11:05 am:

    ===He is a joke===

    Well, you would know Sue.


  18. - Steve - Thursday, Jan 30, 20 @ 11:06 am:

    Who’s ready for equal rights (flat taxes) on taxation nationwide ?


  19. - RNUG - Thursday, Jan 30, 20 @ 11:23 am:

    == The 27th Amendment was proposed in 1789 and ratified 202 years later in 1992. ==

    One difference … those early amendments, including what became the 27th, did not specify as deadline for ratification. The (not ratified) ERA explicitly set a deadline of 1979, which was extended by Congress to 1982.

    SCOTUS has previously said such amendments are fall under Congress, not the courts, control. I expect SCOTUS would cite that, I believe, 1939 language in dismissing (or not accepting) the current case. If the court were to go further, I expect they would state if is up to Congress to modify / extend the explicitly set deadline.


  20. - lakeside - Thursday, Jan 30, 20 @ 11:25 am:

    Ah, the archivist we learned last week signed off on blurring out that filthy word, “vagina” in an exhibit? Excellent.


  21. - RNUG - Thursday, Jan 30, 20 @ 11:32 am:

    == I don’t think you intended that to read the way it does … ==

    Probably not … but I was trying to stick to the legal points.

    I suspect the fact a lot of States have passed similar / equivalent protections will be brought up in arguments but both sides, one side saying it proves support for action at the Federal level and the other side saying it shows no need for action at the Federal level. Proof you can argue different meanings of the same fact.

    And the reality that, while different courts may reach different conclusions, the current SCOTUS makeup will, most likely, be inclined to reach back to previous rulings and pass the buck back to Congress.


  22. - Demoralized - Thursday, Jan 30, 20 @ 11:56 am:

    ==Who’s not ready for the ERA? No more sex segregated sports teams.==

    Do you try to be dense or does it just come naturally?

    What a ridiculously childish argument.


  23. - Demoralized - Thursday, Jan 30, 20 @ 11:57 am:

    ==will, most likely, be inclined to reach back to previous rulings==

    I don’t know. This court doesn’t seem to necessarily tie itself to precedent.


  24. - Demoralized - Thursday, Jan 30, 20 @ 12:01 pm:

    ==Nice way for our AG to divert attention from corruption. He is a joke==

    I can think of someone who is a joke and it’s not the Attorney General.

    Some people make ridiculous arguments like this all the time, as if people can’t work on more than one thing at a time.

    Besides, the feds seem to be in 4th gear on the corruption front right now so I’m not sure why the Attorney General would insert himself into that right now.


  25. - Huh? - Thursday, Jan 30, 20 @ 12:30 pm:

    I wonder if the National Archives will agree there are a net total 38 states that have ratified the ERA. While Virginia may have been the 38th state to ratify the amendment, 4 states have retracted their earlier votes.


  26. - Louis G Atsaves - Thursday, Jan 30, 20 @ 12:57 pm:

    I’d like to see this happen, if only for the fact that my main political mentor, the late State Senator Adeline J. Geo-Karis, was a huge proponent of the E.R.A.


  27. - Proud Sucker - Thursday, Jan 30, 20 @ 12:57 pm:

    This is also one of Steve Andersson’s passions. He was in Virginia when they ratified it. Maybe he’ll chime in on this thread?


  28. - Demoralized - Thursday, Jan 30, 20 @ 1:06 pm:

    Louis:

    Thanks for that comment. She was truly one of the General Assembly’s greatest members.


  29. - Payback - Thursday, Jan 30, 20 @ 1:22 pm:

    Sue @ 11:04 am- “Nice way for our AG to divert attention from corruption.” Agree 110%

    I’d be more impressed if Kwame Raoul spent less time on “social justice” headlines and had a working link at the Illinois Attorney General website that showed the names of Nathalina Hudson, former assistant U.S. Attorney that now heads the criminal division, and the name and contact info. for the public integrity bureau, whoever that is.


  30. - Peter Clemenza - Thursday, Jan 30, 20 @ 1:51 pm:

    There are a couple of interesting Constitutional questions that would have to be addressed. First, can Congress set a deadline for ratification in the bill proposing an Amendment to the Constitution (and if so, can they extend that deadline); and Second, can a state rescind its ratification of an Amendment. The Supremes kinda sorta seemed to say in Coleman v. Miller in 1939 that the timeliness of an amendment is a political question for Congress to sort out. Maybe.


  31. - Wow - Thursday, Jan 30, 20 @ 1:56 pm:

    I think arguing the case in front of the Supreme Court in powder blue Leisure Suits, as a tip of the hat to the garb worn in the period when this effort started is in order.


  32. - RNUG - Thursday, Jan 30, 20 @ 2:06 pm:

    == First, can Congress set a deadline for ratification in the bill proposing an Amendment to the Constitution (and if so, can they extend that deadline); and Second, can a state rescind its ratification of an Amendment. ==

    In 1939, in the case noted, the court somewhat ducked the issue and pretty much said it was up to Congress to decide.

    They kind of ducked again in 1982 by noting there had been no additional approvals by the States between 1978 and 1982. They noted some States had rescinded approval but, since the total hadn’t been reached, the court ignored whether prior approvals could be revoked.

    Taken together, you could read it as we aren’t touching this with a 10 foot pole.


  33. - Walter Sobchek - Thursday, Jan 30, 20 @ 3:06 pm:

    The Supreme Court has roundly rejected prior restraint. Now I’m going to sit here and enjoy my coffee.


  34. - Practical Politics - Thursday, Jan 30, 20 @ 4:19 pm:

    “The 27th Amendment was proposed in 1789 and ratified 202 years later in 1992.”

    Correct, but this was due to the fact that the amendment did not contain a time limit as to ratification. The Equal Rights Amendment failed because it did not achieve ratification by a deadline which was extended.


  35. - Rich Miller - Thursday, Jan 30, 20 @ 4:22 pm:

    ===Correct, but===

    I realize that. Sheesh. I was responding to this: “38 years later is just way over the top”


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