Attorney General Steve Marshall recently sent a letter to President Joe Biden amidst rumors that the president was attempting to ratify an equal rights amendment to the U.S. Constitution despite a decades-lapsed deadline.
The Equal Rights Amendment (ERA) was first introduced to Congress in 1923 by the National Woman's Party to add sex-based protections to the Constitution under the belief that the 19th Amendment was insufficient to provide equal federal protections to women.
In 1972, the ERA was put before state legislatures for ratification with a seven-year deadline. Under federal law, two-thirds of the states, 38 total, would have to ratify before officially becoming a constitutional amendment. By the deadline in 1979, only 30 states had ratified the amendment. Moreover, after that time, five states rescinded their previous ratifications.
Since 1979, several other states ratified the ERA. In 2020, Virginia became the 38th state to ratify. However, the states that rescinded their previous ratifications are included in that list.
In a letter to Biden and National Archivist Colleen Shogan, Marshall claims there is an active campaign to pressure Biden to compel Shogan to ratify the ERA despite the long-elapsed timeframe.
The Archivist of the United States is charged with issuing a formal certification after three-quarters of the states have ratified an amendment.
Following a 2020 lawsuit filed by Alabama and other states after Virginia claimed to be the 38th state to ratify the amendment, the U.S. Archivist agreed not to certify the ERA absent a court order or guidance from the Department of Justice (DOJ). Under the terms of a binding agreement, the Archivist may not certify the ERA until at least 45 days after a DOJ announcement that certification is authorized. The DOJ has made no announcement, meaning any possible ratification would come after President-elect Donald Trump takes office.
"We write to remind you of two things. First, multiple courts and every judge to consider the issue have rejected the preposterous notion that the ERA did not expire decades ago. Second, the Archivist entered a legally binding agreement with our States in exchange for termination of litigation over whether the Archivist has authority to certify the ERA," Marshall's letter reads. "That agreement precludes her (barring a court order) from certifying the ERA until at least 45 days elapse following an announcement from the United States Department of Justice that the ERA should be certified. Even if that announcement from the Department of Justice were made today, the earliest the Archivist could certify the ERA would be January 30, 2025. We thus urge you to reject reckless calls to violate the duties you undertook in litigation and when you swore an oath to defend the Constitution."
The letter also emphasized the potential policy implications of an unlawfully certified ERA. Drawing from interpretations of state-level ERAs, they warned that it could mandate changes to policies on women's sports, women's shelters, state prisons, and college housing.
"The recent demands that President Biden order the Archivist to certify and publish the ERA are no less radical than the demands rejected by courts. The proposed bait-and-switch would undermine our constitutional order, and executing it within the next 45 days would break a binding agreement you made to end litigation with our States. Nothing stops supporters of the ERA from making their case to the People today and trying to add it to the Constitution through a new amendment process, but the ERA of the 1970s was soundly rejected. You should ignore calls that pretend otherwise."
To connect with the author of this story or to comment, email craig.monger@1819news.com.
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