Federal appeals court dismisses ERA case in another blow to legal fight for supporters

By Veronica Stracqualursi, CNN

A federal appeals court on Tuesday dismissed a case brought by two Democratic states that sought to have the US archivist publish and certify the Equal Rights Amendment as part of the Constitution.

The decision deals another blow to advocates’ legal efforts to get the amendment, which they say would ban discrimination on the basis of sex, recognized as the 28th Amendment to the Constitution.

“The States have not clearly and indisputably shown that the Archivist had a duty to certify and publish the ERA or that Congress lacked the authority to place a time limit in the proposing clause of the ERA,” the opinion from the US Court of Appeals for the DC Circuit states.

Illinois and Nevada in 2020 had sued the US Archivist David Ferriero, who has since retired, to compel the publication and certification of the ERA, arguing that it had met constitutional requirements.

The states appealed to the US Court of Appeals in the DC Circuit after a federal judge, an Obama appointee, dismissed the case in 2021, saying that the deadline for ratification had already passed.

Advocates for the ERA argue that the amendment would ban discrimination on the basis of sex and guarantee equality, while opponents say the ERA would undercut laws protecting women’s interests.

Illinois Attorney General Kwame Raoul and Nevada Attorney General Aaron Ford said in a statement that despite Tuesday’s ruling, “we will continue to fight for a published Constitution that explicitly prohibits all forms of discrimination, including discrimination based on sex.”

“Although the court of appeals did not direct the federal government to certify and publish the ERA, it is important to recognize what today’s opinion does not say,” the attorneys general said in the joint statement. “It does not say that the federal government cannot acknowledge the Amendment’s successful ratification, and it does not say that Congress cannot clarify that there is no deadline for ratification.”

The two Democrats called on Congress to act, noting that the Senate Judiciary Committee held a hearing Tuesday on the ERA and SJ Resolution 4, which would remove the deadline for the ratification of the ERA. Senate Majority Leader Chuck Schumer has promised a vote on the joint resolution, which is slated to happen in March.

Linda Coberly, ERA Coalition board member and chair of the ERA Coalition Legal Task Force, similarly noted in a statement Tuesday that the ruling is not the end for the ERA, but instead “leaves the issue squarely in the hands of Congress.”

“We’re disappointed in the court’s ruling. But we note that the ruling does not resolve the issue of the time limit. It simply notes that the dispute about the time limit stands in the way of finding a ‘clear and indisputable right,’ as would be necessary for the specific relief sought in the lawsuit,” Coberly said in the statement.

The ERA was first introduced in 1923 before it was passed by Congress nearly 50 years later, with Virginia becoming the 38th state to ratify the amendment in 2020 — completing the requirement that three-fourths of states are needed to support a new amendment. Virginia had been a party to the case but its Republican attorney general, Jason Miyares, withdrew the state from the legal effort not long after taking office last year.

While backers say that the ERA had met all the constitutional requirements and should have gone into effect as of January 27, 2022, opponents — and even some legal experts who support the ERA — say the amendment is dead and has not been validly ratified.

They point to a deadline that passed decades ago, states rescinding their support, prior court decisions and a Justice Department legal opinion.

“The ruling is another heavy blow to the claim that the 1972 Equal Rights Amendment remains alive,” Douglas Johnson, who oversees the anti-abortion group National Right to Life’s opposition to the ERA, told CNN. “Over the past 41 years, ERA-lives claims have been put before 29 federal judges, and have yet to win a single vote from a single judge.”

Both sides have said the ERA would further expand abortion — a critical issue in the wake of the Supreme Court overturning federal abortion protections last summer. While proponents of the ERA say that the amendment would protect access to abortion, opponents object to the ERA, arguing that it could invalidate state restrictions.

Johnson called the joint resolution “a political gimmick” to “politically milk the gullible.”

“It won’t pass the Senate or the House, and could not resuscitate the long-expired ERA even if it did pass,” he said.

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CNN’s Jack Forrest contributed to this report.