Virginia’s Attorney General Appeals In Equal Rights Amendment Ratification Lawsuit

Mark Herring


Attorney General Mark Herring has appealed to the U.S. Court of Appeals in a lawsuit seeking to have Virginia’s ratification of the Equal Rights Amendment (ERA) recognized.

“The United States cannot continue forcing women to wait to be recognized as equal under this country’s founding document,” Herring said in a May 3 press release. “Throughout the years, efforts to have the Equal Rights Amendment added to the Constitution have been met with many impediments, but every single time this movement has overcome those hurdles and come out the other side stronger than ever. To those who have sent a clear message that they do not believe in women’s equality – it’s time that you move into the 21st century.”

The ERA was passed in 1972 but fell short of the 38 states required to ratify the amendment by a 1982 deadline. Virginia, Illinois, and Nevada ratified more recently, bringing the total up to 38 with Virginia’s 2020 ratification. However, the Department of Justice (DOJ) under Trump declared that the amendment could not be revived.

Congress may not revive a proposed amendment after a deadline for its ratification has expired. Should Congress wish to propose the amendment anew, it may do so through the same procedures required to propose an amendment in the first instance, consistent with Article V of the Constitution,” a January 2020 DOJ opinion stated.

Along with attorneys general from Illinois and Nevada, Herring sued to force the Archivist of the United States to certify adoption of the amendment, but in March 2021, District Judge Rudolph Contreras ruled against the three states. The judge found that the archivist’s publication of the amendment would be a formality without legal weight, meaning the attorneys general lack standing.

Additionally, Contreras said the ratifications were too late. “Second, even if Plaintiffs had standing, Congress set deadlines for ratifying the ERA that expired long ago. Plaintiffs’ ratifications came too late to count. For those two reasons, the Court dismisses Plaintiffs’ suit,” Contreras wrote in his opinion.

After the decision, Herring said in a press release, “While I do not believe that the arbitrary deadline Congress imposed on the Equal Rights Amendment is binding in any way, I welcome any support from both the Biden Administration and Congress in ensuring that this amendment is recognized as part of the Constitution once and for all.”

Before Herring’s appeal can move forward, the Court of Appeals must agree to hear the appeal. Complicating the issue is the U.S. House of Representatives’ 2021 vote to eliminate the ERA deadline. The U.S. Senate has not voted on the bill yet.

ERA Catalyzed Mid-1970s Activism

The first version of the ERA was introduced in 1923. In the 1940s, the Democrat and Republican parties both supported the ERA in their platforms, according to a history of the ERA published by the Alice Paul Institute. Still, social conservatives opposed the amendment. An Eagle Forum history says that advocates were unwilling to compromise on a clause of the proposed amendment.

“During most of those years, ERA had attached to it the Hayden Clause which read: ‘Nothing in this Amendment will be construed to deprive persons of the female sex of any of the rights, benefits, and exemptions now conferred by law on persons of the female sex,'” the Eagle Forum site states.

In the 1970s, the ERA became the focus of feminist activism and conservative opposition, with both sides led by now-iconic women, among them Gloria Steinem, Phyllis Schlafly, and Ruth Bader Ginsburg, who would later become a United States Supreme Court Justice.

In 1970, feminist icon Steinem advocated for the ERA before Congress.

“The truth is that all our problems stem from the same sex-based myths,” Steinem said, saying it was a myth that women were already treated equally.

“Women suffer this second class treatment from the moment they are born. They are expected to be, rather than achieve, to function biologically rather than learn,” she said.

In 1972, Congress adopted the amendment without the Hayden clause, and gained 22 ratifying states in the first year, according to the Eagle Forum.

The amendment states,SECTION 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. “SEC. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. “SEC. 3. This amendment shall take effect two years after the date of ratification.”

In 1972, conservative icon Schlafly began opposing the ERA, according to Schlafly’s Eagle Forum bio.

“A small group of women in 1972, under the name ‘Stop ERA,’ took on what seemed to be an impossible task. In 1975, they founded ‘Eagle Forum’ – the genesis of the pro-family movement, a coming together of believers of all faiths who, for the first time, worked together toward a shared political goal. Eagle Forum volunteers persevered through the years and led the movement to final victory over ERA,” the Eagle Forum history states.

The Eagle Forum argued that the ERA would take away women’s rights like an exemption from the draft, remove states’ power, make funding of abortion a right, and codify homosexual rights in the Constitution.

“What I am defending is the real rights of women,” Schlafly said at the time, according to NBC. “A woman should have the right to be in the home as a wife and mother.”

The effort to gain the remaining ratifications stalled. Some states voted to rescind their ratification. Still, proponents continue to fight for the ERA in state legislatures and in Congress. Conservatives continue opposing the ERA. Current Eagle Forum documents state that modern definitions of “sex” open the door to new problems with the ERA.

“It’s clear the ERA is also bad for women. Through this amendment, men identifying as women will be legally allowed to usurp women’s rights,” a March 2021 Eagle Forum update argues.

When Democrats took control of the Virginia General Assembly in 2020, they ratified the ERA. Shortly afterwards, in February 2020, ERA advocacy leader Justice Ruth Bader Ginsburg said “there was too much controversy” around Virginia’s ratification and called for the effort to start over, according to The Atlantic.

“I would like to see a new beginning. I’d like it to start over,” Ginsburg said.

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Eric Burk is a reporter at The Virginia Star and the Star News Digital Network.  Email tips to [email protected].
Photo “Mark Herring” by MDFriendOfHillary CC 2.0.

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