Ohio House Minority Leader Allison Russo (D-Upper Arlington) gives comments following State of the State Address, January 31, 2023, in the Warren G. Harding Briefing Room at the Statehouse in Columbus, Ohio. (Photo by Graham Stokes for Ohio Capital Journal. Republish photo only with original story.)
Next week, the country will have a new president, and a group of Ohio lawmakers have one big ask before Joe Biden leaves The White House. In a letter, the Ohio House Democratic Caucus is urging the president to formally publish the Equal Rights Amendment as the 28th amendment of the U.S. Constitution.
They argue since Virginia became the 38th state to ratify the amendment in 2020, all that’s left is the ministerial procedure of directing the National Archivist to add the ERA to the Constitution.
It may not be that simple.
Deadlines, opinions & statements
When the Equal Rights Amendment was approved by Congress in the 1970s, lawmakers included a seven-year deadline in its resolving clause. Thirty-five states quickly ratified the proposal, but then it stalled. Lawmakers extended the deadline, but it came and went without any additional state ratifications.
Supporters of the ERA are quick to note that court precedent is murky when it comes to the validity of those lawmaker-imposed deadlines. Article V of the U.S. Constitution makes no mention of them. The U.S. Supreme Court upheld the deadline for the 18th Amendment (Prohibition), but the circumstances of that case are bit different than the ERA.
States ratified Prohibition well before the deadline, but then, challengers argued the entire amendment should be thrown out because Congress had no authority to set a timeframe. In a law review article, University of Florida law professor Danaya Wright explained the court rejected that argument. Why invalidate a law that cleared all the necessary hurdles simply because of an irrelevant deadline?
But she warned against applying the reasoning in that case to the Equal Rights Amendment.
“It is one thing to hold that an ineffective technicality will not void an otherwise proper law,” Wright wrote. “It is another to hold that technicality to be effective to thwart the will of a supermajority of the people.”
Wright argued the question will likely wind up back in the courts, and there are four possible outcomes. First, Congress has complete authority to impose a cut off, and the ERA would have to go back to square one. Second, Congress can require deadlines but it can also alter those deadlines — leaving the door open to legislation rescinding Congress’ prior expiration date. Third, deadlines are legally valid, but only if they’re in the actual text of the amendment. Fourth, deadlines in general are invalid.
During the first Trump administration the Department of Justice’s Office of Legal Counsel staked out the first of those possibilities. In a 2020 memo Assistant Attorney General Steven Engel argued, “we conclude that Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the States.”
Two years later, Biden’s Office of Legal Counsel took a somewhat different tack — arguing nothing in that earlier memo precludes Congress from acting to adjust the ratification timeline.
“As a co-equal branch of government,” Assistant Attorney General Christopher Schroeder wrote, “Congress is entitled to take a different view on these complex and unsettled questions. Throughout our history, Congress has deliberated on its own interpretation of the Article V process numerous times and taken actions on that basis.”
On the strength of those memos, National Archivist Colleen Shogan and her deputy Willam Bosanko have insisted they cannot legally certify the Equal Rights Amendment.
“Extending or removing the deadline requires new action by Congress or the courts,” they wrote late last year. “Court decisions at both the district and circuit levels have affirmed that the ratification deadlines established by Congress for the ERA are valid. Therefore, the Archivist of the United States cannot legally publish the Equal Rights Amendment.”
In his own statements in 2024, 2023, 2022, and 2021 President Biden has reiterated support for the Equal Rights Amendment “since I first ran for the Senate as a 29-year-old.” But he puts the onus for action on Congress.
“I urge the Congress to recognize the ratification of the Equal Rights Amendment,” he said last August, “and affirm the fundamental truth that all Americans should have equal rights and protections under the law.”
One phone call
That’s not good enough for New York’s Democratic U.S. Sen. Kirsten Gillibrand. She has been perhaps the loudest voice insisting Biden can get the ERA implemented immediately by simply picking up the phone and directing the archivist to publish it.
She insists the archivist got it wrong and “by refusing to certify the ERA, she is wrongfully inserting herself into a clear constitutional process, despite the fact that her role is purely ministerial.”
Gillibrand noted several legal experts and the American Bar Association believe the amendment has cleared the necessary requirements for inclusion in the U.S. Constitution.
In their letter to Biden, Ohio’s House Democratic Caucus point to the persistent wage gap between men and women as well as Ohio’s recent reproductive rights amendment. Since passage, they argue, Ohio Attorney General Dave Yost has been in court traying to chip away at those rights.
“(He) cites the lack of a basis in both the Ohio and the U.S. Constitutions for many aspects of our reproductive rights, because the Ohio and U.S. Constitutions do not have an Equal Rights Amendment,” they wrote.
“The need for a constitutional safeguard,” they added, “that elevates and normalizes equality of the sexes, could not be greater at this moment.”
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