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The ERA Cannot be “Ratified” by Virginia (or any Other State) Without a Constitutional Crisis

I wondered for a moment or two this week if I had stumbled into a singularity or time warp. I had to ask myself: Is this 2019? I once debated the chair of the Wright State University student government on the Equal Rights Amendment (ERA) in – wait for it – 1979! (Maybe it was 1978?) Did I hitch a ride in the wrong DeLorean? Funny thing, I neither look or feel younger! What I said in 1978 was in a nutshell: The ERA is unnecessary and dangerous.

But here we are: debating the ratification of the ERA in 2019. (I checked. It is 2019.) There is a tremendous problem with the ERA.

Yes there are these problems with the ERA: Yes women will be drafted (if there is a draft again) and serve in combat. Yes churches could, after Bob Jones University v. US, [461 U.S. 574 (1983)] where the SCOTUS held that charities who racially discriminate could lose their tax-exempt status, lose that tax exempt status if they refuse to allow women pastors or leaders. (By the way, for the record, I am a Nazarene and we have had the principle of women in leadership since 1908 and women are pastors, missionaries and even general superintendents.) Yes, this ERA will increase the power of the federal government (Congress and the courts) over areas traditionally not federal concerns such as domestic relations laws. And yes, at the present time, there are constitutional and statutory provisions to protect women (and men, too), ranging from the Fourteenth Amendment to Title VII to Title IX to the Equal Pay Act (many of these laws have stricter enforcement and recovery interpretations than forty or so years ago when I had that debate) and many states have similar laws. The ERA is both dangerous and unnecessary.

The problem is: If Virginia purports to ratify this alleged constitutional amendment, she will precipitate a foundational constitutional crisis that will affect the Constitution’s legitimacy.

For there are only two ways to amend the Constitution: Either Congress can pass a proposed amendment by a 2/3 vote and send to the states for 38 ratifications (either by state legislatures) or there can be something like a Convention of States to propose amendment(s) to the states via a new constitutional convention. (Go here and here for the reason the COS is foolish and dangerous as well.)

The ERA was indeed enacted in 1972 by overwhelming majorities in Congress and it looked like it was greased skids for inclusion in the Constitution until a lone woman from Alton, Illinois started to organize against the amendment and disclosed its dangers. Phyllis Schlafly (I got into trouble with the left for suggesting Schlafly should be on a postage stamp! Let’s get into more trouble: Schlafly ought to be posthumously awarded the Presidential Medal of Freedom for saving the nation from this pernicious amendment.) almost single-handedly marshaled thousands to agitate against the ERA and its dangers and stopped the ERA’s march to the Constitution at 35 states. Don’t take my word for it: President Ronald Reagan write this in his diary:

“Phyllis Schlafly came by. She’s darned effective. Her plan to counter the new E.R.A campaign is brilliant.”

Here and here.

And five states, including Idaho, took back their ratifications. Here’s why Idaho is important: This state sued to have its rescission counted formally in a case called Idaho v. Freeman [529 F. Supp. 1107 (D. Idaho 1981), vacated as moot, 459 U.S. 809 (1982)] and also sued to have one of the most unfair laws passed by Congress struck down.

The Congress in the act sending the ERA to the states, limited the time of ratification to seven years: March 1979. However, the ERA supporters could not seem to get the 38 enactments by March 1979 and states started to renounce legally their prior ratifications. Congress came to the rescue: My a majority vote, the solons extended the time for the ratification of the ERA to June 30, 1982 and then said: No state can take back their ratification.

Idaho decided to sue to enforce its rescission and to declare the extension of the ERA unconstitutional. And Idaho won! The federal district court ruled, after deciding it had the power and authority to act, the state had the right to bring the case and that this was not a “political question”, that Idaho (and by extension, Nebraska, Kentucky, Tennessee and South Dakota) could renounce its ratification if the amendment had not been enacted as part of the Constitution.

The court also held that because the extension of time act was not passed in the same dignity as the original amendment (e.g., two thirds of both houses of Congress) it was unconstitutional and that the ERA was legally dead.

The parties appealed and the Supreme Court of the United States did something rarely done: It skipped the Circuit Court of Appeals and granted certiorari to directly hear this case before the June 30, 1982 deadline for ratification.

June 30, 1982 came and went and the ERA is stuck at 35 (or really 30 now); Idaho’s opponent, a federal official who announces the ratification of constitutional amendments, on July 9, 1982, it filed a brief with SCOTUS saying the case was moot – no longer a true case or controversy.

For the Federal courts are constitutionally limited to cases and actual controversies by parties who can be legally injured by the decision. They cannot give an advisory opinion. The Supreme Court of the United States had to decide: Is this a real case anymore? Can anyone be hurt?

IS the ERA still able to be ratified?

If not, the case is moot and must be dismissed.

The SCOTUS decided the case is indeed moot and ordered the Idaho district court to dismiss it as such.

There are two issues here. The issue of the rescissions cannot be directly affected by this decision – and yes this is a decision on the merits – although Idaho should now re sue to enforce its rescission as the activity of the pro-ERA activists and 37 states have “ratified” the amendment renders this a live issue.

But the issue of the viability of the amendment IS affected by this decision because to find the case moot after the June 30, 1982 deadline means that upon the expiration of the deadline the amendment CANNOT BE ADOPTED! Otherwise, the issue of the rescissions become viable if there is a process to continue the enactment process. The ERA is not viable; it’s legally dead. The Supreme Court of the United States so held – on October 4, 1982. The ERA has to be restarted by the process that the Constitution authorizes any amendment to be enacted: Either 2/3 vote of Congress or some derivation of the convention process.

That brings me to the constitutional crisis: If a dead amendment can be enacted in such a manner, this process will undermine Constitutional legitimacy. If the American people lose respect for the Constitution, that carries serious ramifications for the Republic.

Delegate and Chairman of the House Privileges and Elections Committee Mark Cole is correct when he ruled that the ERA is not validly before the Virginia General Assembly and struck it from the docket of the committee. He needs to stand firm and rule again in like manner. Contact him and all delegates and senators on this critical issue. And don’t forget the merits of the argument: The ERA is dangerous and unnecessary. I appeal to Democrats too – there are some Dems who respect the system and the Constitution. If you live in their districts, send this post to them. I appeal to you: Back off from the brink of constitutional crisis. Vote NO on the ERA.

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

2 Responses to “The ERA Cannot be “Ratified” by Virginia (or any Other State) Without a Constitutional Crisis”

  1. R. Stanton Scott
    Twitter:
    says:

    I don’t think your argument that the time limit argument carries a lot of weight. Article V gives Congress no authority to set a time limit on ratification of Amendments it proposes. By the plain language of the Constitution, Amendments, once proposed, become part of the Constitution once ratified by three-fourths of the states without regard to how long it takes.

    Your rescission case is a stronger one. Though Article V does not provide for this, it makes sense to think that if voters in a State objected to ratification by their state legislature they could express this objection in an intervening election. If that newly seated legislature then rescinded ratification in time (e.g., before ratification by three-fourths of the States) it should arguably not be counted as part of the three-fourths needed.

    My review of Constitutional history doesn’t shed much light on the Founders’ view of either. Most of the discussion related to amending the Constitution during its drafting and ratification centered on making sure States had a path to making changes without regard to whether Congress agreed.

    In any event, Virginia’s General Assembly should ratify the Equal Rights Amendment because it’s the right thing to do. Government should not privilege either men or women with respect to rights (voting, domestic law) or responsibilities (military service). Nor should Government privilege institutions (e.g., with tax exemptions) that discriminate on race, gender, or any other grounds whether or not justified by religious (or for that matter any other) doctrine. The ERA is necessary because Government still privileges both individuals and institutions in these ways. And it’s only dangerous to those whose power depends on this discrimination. This is, by the way, a Libertarian view insofar as it limits the power of government to manage society (e. g., by deciding what does and does not constitute a “religion”).

    Ratification by Virginia would not of course mean immediate inclusion of the ERA in the Constitution. It would instead start a lengthy court battle which, given the current composition of the courts (especially SCOTUS), likely results in a ruling that either restarts the process from the beginning or requires new ratifications to reach 38.

    Either way, the women – and men – who support equality will not give up. Social roles have already changed – women fly military aircraft in direct combat – and male control of social institutions is coming to an end. Leaders in government and other social organizations, including Republicans in the General Assembly, better get a clue and manage this change rather than try to block it or voters will send them home. Just ask Bob Marshall.

    • Sandy Sanders
      Twitter:
      says:

      Stan, I appreciate the civility and erudition behind these posts.

      But I still await any law or court deciison that needs toe ERA to remedy alleged sex discrimination. We have every available remedy – Title VI, Title IX, Fourteenth Amendment, Equal Pay Act, state and local civil rights acts. And if there a rogue law or court decision, I would think the people’s institutions can solve that issue.

      The ERA is dangerous because no one knows how the courts will interpret it. I do believe all those things mentioned above will be mandated under the ERA. If women serve in combat (and there is a law against it – but Iraq was such a war zone that it was impossible to keep the women from being forced to fight) it ought to be by choice not by a draft.

      I appreciate the tentative support for a state’s rescission but I still contend the SCOTUS did rule on the extension of time in such a way as to say: The time is up and the ERA cannot be ratified anymore OR the SCOTUS would have had to decide the rescission issue. It would have been a viable controversy.

      Finally, do we want the courts deciding if an amendment to the Constitution is valid? I think not.

      Thanks again for coming by.

      Sandy

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    Tom White Says:

    Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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