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In the aftermath of the November 5, 2019, general election in the Commonwealth of Virginia, both chambers of that state’s general assembly flipped from majority-Republican (albeit by paper-thin margins in both bodies for the past two years, anyway) to majority-Democrat. Like Kentucky, Louisiana, and New Jersey, Virginia conducts its state legislative elections in odd-numbered years.

Virginia Democrats have made it quite plain that when they assume control of both the Virginia Senate and Virginia House of delegates in January of 2020, one of their top priorities will be a tardy “ratification” of the controversial 1972 Equal Rights Amendment (ERA) to the U.S. Constitution.

It was on March 22, 1972, that the 92nd U.S. Congress offered the ERA to the nation’s state legislatures for consideration. In so doing, the 92nd Congress set a 7-year deadline for America’s state lawmakers to act upon the ERA—in other words, state legislators had until March 22, 1979, to ratify ERA, pursuant to the Federal Constitution’s Article V. Congressional power to establish such a ratification deadline was reinforced by the U.S. Supreme Court in the landmark 1921 case of Dillon v. Gloss.

The full and complete text of the 1972 ERA reads:

“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 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.”

With 50 states in the Union in 1972—and still today in 2019—the legislatures of 38 states (three-fourths) must ratify a proposed federal constitutional amendment, within any applicable time constraint that Congress might have established on the date of offering the measure to state lawmakers, in order for that proposition to be added to the Constitution. Congress is not required to set such a deadline but, as recognized 98 years ago by the highest court in the land, it may do so if it so desires. And, in 1972, Congress so desired.

Between March 22, 1972, and March 22, 1979, lawmakers in 35 of the needed 38 states ratified ERA, but four of the 35 subsequently came down with “buyer’s remorse” and sought to rescind prior ERA ratifications later believed to have been granted in haste and with little examination as to all of ERA’s ramifications if the measure were to actually make its way into the country’s Constitution. After ratifying ERA with breakneck speed in 1972, Nebraska legislators in 1973, Tennessee legislators in 1974, Idaho legislators in 1977, and Kentucky legislators in 1978, adopted resolutions to withdraw their rushed 1972 support for ERA.

In 1978—as the March 22, 1979, deadline loomed ominously—the 95th Congress undertook a very controversial and procedurally suspect “extension” of ERA’s ratification deadline to June 30, 1982. That “extension” was “accomplished” by only a simple majority vote (failing to garner two-thirds in either Congressional body) and was later signed by then-President Jimmy Carter in direct violation of the Supreme Court’s 1798 decision in Hollingsworth v. Virginia, in which the justices ruled—early in U.S. history—that the president plays no formal role in the process of amending the Constitution.

Between March 22, 1979, and the highly questionable “extended” deadline of June 30, 1982, no state legislatures added their approval of ERA. As a matter of fact—in a negative reaction to the alleged deadline “extension” to June 30, 1982—South Dakota lawmakers adopted a resolution on March 1, 1979, to clarify that, while not going quite so far as to rescind that state’s 1973 ERA ratification, nevertheless, that 1973 ratification would only remain valid for the next 21 days, which was the originally agreed upon deadline of March 22, 1979. From March 23, 1979, and moving forward, South Dakota’s approval of ERA—as far as South Dakota’s 1979 lawmakers were concerned—should be considered as having lapsed and understood to be sunsetted. This is a bit different from a rescission.

On December 23, 1981, Federal Judge Marion Callister ruled in Idaho v. Freeman that Congress was without authority to adjust a previously established ratification deadline and, further, that a state’s legislature indeed has authority to change its mind from “yes” to “no”—and to rescind a previous ratification—as long as that is done before the proposal receives the approval of the necessary 38th state.

On January 25, 1982, the Supreme Court “stayed” the Idaho v. Freeman ruling, which did not reverse the lower court’s conclusions and holdings—nor negate Judge Callister’s findings on any of the case’s merits—but merely suspended Idaho v. Freeman from having any effect, in an apparent effort to allow state legislatures in session during the first half of 1982 an opportunity to continue pondering ERA by the “extended” deadline of June 30, 1982.

As the tail end of June is typically the same time that the Supreme Court departs Washington, D.C. for about three months of annual hiatus, the justices made themselves unavailable to more extensively review Idaho v. Freeman until their 90-day sabbatical ended and they returned to work on October 4, 1982; at this time—given that the disputed June 30, 1982, ERA “extended” ratification deadline had already come and gone—the high court took the easy way out and simply ruled that the entire controversy was moot by that point, thus skirting any need to address the core issues raised by the district court in Idaho v. Freeman.

And that is where things stood from 1982 until 2017. On March 22, 2017—the 45th anniversary of ERA’s presentation to the states by the 92nd Congress—the Nevada Legislature chose to “ratify” the long-dormant ERA, notwithstanding the fact that both deadlines of March 22, 1979, and June 30, 1982, passed decades earlier. A little more than a year after Nevada, the Illinois General Assembly did the same thing on May 30, 2018. ERA promoters count Nevada as the 36th state to approve ERA and regard Illinois as the 37th.

If and when the Virginia General Assembly follows suit in 2020, ERA advocates will doubtless vigorously insist that Article V’s requirement of ratification by the legislatures of 38 states will have been met. They deny that state lawmakers in Idaho, Kentucky, Nebraska, and Tennessee possess rescission power and they further maintain that legislators in South Dakota lacked authority to sunset that state’s 1973 approval of ERA by the March 22, 1979, original ratification deadline. And, of course, ERA proponents aver that ratification deadlines are meaningless and should be jettisoned if later found to be inconvenient. They will shout from rooftops that the 1972 ERA has become the Constitution’s 28th Amendment with Virginia’s widely expected 2020 “ratification.”

The recent ERA “ratifications” by lawmakers in Nevada and Illinois did not go unnoticed in more conservative states. On March 5, 2019, the North Dakota House of Representatives responded by adopting a resolution (with a lopsided 67 yeas and 21 nays) to clarify that that state’s 1975 ratification of the 1972 ERA expired as of “11:59 p.m. on March 22, 1979.” That 2019 North Dakota concurrent resolution did not, however, receive the approval of the North Dakota Senate. A similar resolution has been offered in the Minnesota Senate likewise in 2019.

Some ERA supporters have let it slip that fear of the landmark 1973 Roe v. Wade decision being overturned by conservatives presently serving in the federal judiciary—and serving in it in the future—is a key factor in the effort to resurrect the long-expired 1972 ERA. There seems to be a school of thought that if the language of the ERA were to be strategically incorporated into the Constitution now, such verbiage would strengthen the constitutional undergirding upon which Roe v. Wade’s “abortion rights” theory has rested all of these years—at least in the eyes of the U.S. courts. ERA’s wording timely added to the Constitution—its backers believe—would afford Roe v. Wade an extra layer of protection in weathering future attacks within the federal judiciary.

There is abortion-related precedent at the state level with Equal Rights Amendments appearing in the constitutions of some states. In New Mexico, for example, that state’s Supreme Court ruled in the 1998 case of New Mexico Right to Choose, Et Al. v. Johnson, Et Al., that New Mexico’s state-level Equal Rights Amendment requires taxpayers to actually finance abortions sought by women who present themselves for the procedure—and who claim to be impoverished. Similar circumstances are reported to exist with state-level Equal Rights Amendments in the constitutions of six other states.

At a June 6, 2018, “shadow” hearing of the Committee on the Judiciary of the U.S. House of Representatives, then-Ranking Member Jerrold Nadler (D-New York) said in support of a belated ERA ratification: “… what the Supreme Court giveth, the Supreme Court can taketh away. And we’re worried now that another Supreme Court nominee by a certain person [President Trump] who might overturn Roe v. Wade.” (Nadler did not officially become the House Judiciary Committee’s chairman until January 2019, when the 116th Congress commenced and partisan control of the House shifted).

The 1972 ERA’s above-quoted “SEC. 2” should also give state lawmakers—nationwide—significant pause. It has the potential to usher a massive transfer of power away from the 50 state governments and over to the already mammoth federal government. Indeed, “SEC. 2” most probably would divest state lawmakers of the ability to ever again legislate on the subject of “sex”—a word whose meaning has undergone considerable change over the years.

Indeed, for a proposed constitutional amendment touted as making women and men equal in the eyes of the law (and “finally putting women into the Constitution,” as ERA devotees gleefully assert), the words “woman” and “women” appear nowhere within the 1972 measure’s three sections. When initially presented during the 68th Congress in the year 1923, ERA’s text—complete with a minor typo—was much more direct: “Men an[d] women shall have equal rights throughout the United States and every place subject to its jurisdiction.

Anticipating Virginia’s 2020 “ratification” of ERA, the current 116th Congress’ House Judiciary Committee, on November 13, 2019, “marked-up” House Joint Resolution No. 79 by Congresswoman Jackie Speier (D-California) and more than 200 co-sponsors. The purpose of H.J. Res. 79 is to totally eliminate the 1979 (or 1982) ERA ratification deadline—literally decades after the fact—purportedly leaving the 1972 ERA wide open for ratification, with no time constraint at all, upon state lawmakers to act. By a vote of 21 yeas and 11 nays, the House Judiciary Committee favorably reported H.J. Res. 79 back to the full House of Representatives.

A press release dated November 13, 2019, issued by the House Judiciary Committee, giddily proclaims: “The legislation [i.e., H.J.Res. 79] will now move to the full House for a vote before heading to the Senate.”

In a separate press release—likewise dated November 13, 2019—Judiciary Chairman Nadler announced: “And make no mistake, the ERA’s prohibition of the denial or abridgment of ‘equality of rights under the law … on account of sex’ includes discrimination based on sexual orientation and gender identity.”

It was during a special session of the 62nd Texas Legislature (convened for other reasons) that Texas lawmakers, on March 30, 1972, ratified the proposed ERA—a mere eight days after the 92nd Congress had offered it to state legislators across the country.

In 2018, the Republican Party of Texas—sensing the seriousness and gravity of what Nevada and Illinois lawmakers had recently done—included the following plank in its formal platform of that year:

58. Equal Rights Amendment: We call upon the 86th Texas Legislature to adopt a resolution clarifying that the 1972 ratification by the 62nd Texas Legislature of the proposed Equal Rights Amendment to the United States Constitution was valid only through March 22, 1979.”

So, of course, no member of either the Texas Senate or of the Texas House of Representatives bothered to file such a clarifying resolution during the regular session of the 86th Legislature which ended on May 27, 2019.

What happens next after Virginia’s presumed 2020 “ratification” of the 1972 ERA is anyone’s guess. Would both houses of Congress deem fit to declare that previously established ratification deadlines simply do not matter and that state legislatures are unable to rescind—or to sunset—a previous ratification of a proposed amendment to the U.S. Constitution? Alternatively, would the entire controversy be thrown into the federal courts for a final resolution?

This is a commentary submitted and published with the author’s permission. If you wish to submit a commentary to Texas Scorecard, please submit your article to [email protected].