When the history of the Equal Rights Amendment gets written (finally), who will get the credit for killing it off, at least in its initial incarnation? Could it be the greatest living feminist icon — the woman who inspired not just one but two major Hollywood films in the last two years? Supreme Court Justice Ruth Bader Ginsburg might find herself notorious in a different way after remarks she made last night at a Georgetown Law event. The ERA is dead, Ginsburg remarked, while also hailing a new ERA effort if and when it materializes:
Justice Ruth Bader Ginsburg, a long-time supporter of the Equal Rights Amendment, suggested Monday night that the deadline to ratify the measure as a constitutional amendment has expired and that the decades long effort must start anew.
“I would like to see a new beginning,” Ginsburg told an audience at Georgetown University Law Center.
“I’d like it to start over,” she added. …
Nodding in response to the question about the dispute, Ginsburg said “there is too much controversy about late comers,” and she added that Virginia’s move came “long after the deadline passed.”
This came up because the new Democrat-controlled legislature in Virginia ratified the ERA in January. That made them the 38th state to ratify the proposed amendment, which normally would succeed in adding it to the Constitution. However, when Congress sent the amendment to the states in 1972, they added a seven-year deadline, which they extended later to ten years. That deadline passed without getting the necessary three-quarters of states to ratify it, which meant that the proposal died.
Or did it? States have argued that the deadline was not constitutional in the first place and have slowly added themselves to its ratification. Some states de-ratified it in the meantime, which set up new legal fights. Until last month, however, the case for challenging the deadline wasn’t ripe for a court challenge.
And that brings us to this month. A lawsuit has been filed by Virginia to force the issue, described briefly by Josh Blackman at the Volokh Conspiracy:
The status of Virginia’s ratification is now pending in several courts. Alabama, joined by Louisiana and South Dakota, filed suit in the Northern District of Alabama. They argued that the ratification deadline has already passed. The Office of Legal Counsel has weighed in, and also concluded that the deadline has already passed. Another suit was filed in the District of Massachusetts, arguing that the ratification is proper. And Virginia, joined by several other states, sued in the District for the District of Columbia to order the Archivist of the United States to certify the 28th Amendment.
The five states that voted to rescind their earlier ratifications will likely sue as well, if they haven’t already. That will create a legal mess that will almost certainly come before the Supreme Court. So why is Ginsburg talking about the case at all, especially with the states fighting each other in multiple federal courts? It turns out that it’s not the first time she’s weighed in on this topic in public. She urged its advocates to start from scratch last year in the same venue:
“I hope someday it will be put back in the political hopper, starting over again, collecting the necessary number of states to ratify it, ” she said last year at a separate event at Georgetown.
Even at that time, that was a remarkably indiscreet comment for a Supreme Court justice to make on a potential case. This time, she’s speaking about her position on an actual federal case that will almost certainly get heard before the court. Will Ginsburg recuse herself?
Probably not, and it probably won’t matter anyway. The simple fact is that Congress did attach a deadline to the amendment, and Congress has the authority to do that. When this gets to the Supreme Court, the biggest mystery will be if Virginia and its allies get even one vote on the court to argue against Congress’ constitutional authority. Ginsburg sounds pretty clearly that she won’t be that vote, which makes recusal a moot point anyway.
If ERA advocates want to push their amendment, they’ll either need Congress to send it to the states again (with two-thirds votes in both chambers) or convene an Article V convention of the states to generate it. Why not just take one of those two courses? It’s likely because the states aren’t all that interested in the topic, and advocates know they won’t get 2/3rds of either chamber to go along. Why? Because conservatives believe this attempt to resuscitate the ERA is about getting all limits removed on abortion, as is an attempt to get Congress to rescind the 1972 deadline on the ERA:
Though the bill is expected to pass the House, it has little to no chance of winning support from the GOP-controlled Senate or President Donald Trump. The real fight will likely take place in federal courts — but the battle for public opinion is already in full swing, and influential and well-funded anti-abortion groups and their allies in Congress don’t want to take any chances.
“Everyone knows this renewed effort isn’t about women’s rights,” the office of House Republican Whip Steve Scalise said, summarizing the message being relayed to the GOP caucus. “It’s about eliminating federal and state life protections and ushering in an era of taxpayer funding of abortion.”
Conservatives argue that because only women can have abortions, any restrictions on the procedure could be deemed unconstitutional under the ERA — and they’re excoriating progressive supporters of the amendment for dancing around this open legal question. ERA proponents, in turn, accuse conservatives of harping on the abortion issue because most of the dire consequences they predicted in the 1970s have already come to pass.
“A lot of the arguments that they had in opposition against the ERA are no longer relevant,” said Rep. Carolyn Maloney, a lead sponsor of the House bill and author of a separate bill that would propose a new ERA. “One of them is that we would have co-ed bathrooms. Wake up. Have you been on a plane? Have you been in a private home? And women are already in the military, on the front lines, they’re admirals, they’re generals. As for gay rights — gay rights have passed. So that is no longer an issue.”
That’s actually the point conservatives are making. Everything that ERA advocates demanded in 1972 has already been accomplished through other means — Title IX and other federal and state legislation prohibiting sex discrimination as well as other forms (sexual orientation, etc). So why the push for the ERA now? The only reason is abortion, and even Planned Parenthood agrees:
“There are no equal rights for women without access to abortion, plain and simple,” said Alexis McGill Johnson, acting president and CEO of Planned Parenthood.
Consider the ERA the back-up plan if Roe v Wade is overturned. And at the moment, it’s not looking like Notorious RBG is cooperating with it. Hmmm.