Justice Department: ‘Congress May Not Revive’ Equal Rights Amendment

Equal Rights Amendment
Rainmaker Photo/MediaPunch /IPX
Dr. Susan Berry

The Office of Legal Counsel (OLC) of the U.S. Justice Department delivered an opinion Wednesday that asserted the Equal Rights Amendment (ERA) is dead and cannot be revived by Congress.

The amendment has long been considered a “Trojan horse” for gender ideology and abortion by pro-family and pro-life groups.

The OLC’s opinion, written by Assistant Attorney General Steven A. Engel, is binding on the National Archives.

The ruling asserts the deadline for ratification of the ERA set by Congress in 1972 is still valid:

Congress has constitutional authority to impose a deadline for ratifying a proposed constitutional amendment. It exercised this authority when proposing the Equal Rights Amendment and, because three-fourths of the state legislatures did not ratify before the deadline that Congress imposed, the Equal Rights Amendment has failed of adoption and is no longer pending before the States. Accordingly, even if one or more state legislatures were to ratify the proposed amendment, it would not become part of the Constitution, and the Archivist could not certify its adoption under 1 U.S.C. § 106b.

Congress may not revive a proposed amendment after a deadline for its ratification has expired. Should Congress wish to propose the amendment anew, it may do so through the same procedures required to propose an amendment in the first instance, consistent with Article V of the Constitution.

“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,” wrote Engel.

“Even if one or more state legislatures were to ratify the 1972 proposal, that action would not complete the ratification of the amendment, and the ERA’s adoption could not be certified under 1 U.S.C. § 106b,” he added.

The pro-life and pro-family Eagle Forum has opposed the ERA consistently, including recently when Democrat leaders in Congress brought a resolution to remove the ERA’s deadline.

In a press release, the Eagle Forum noted the resolution sets “a dangerous precedent allowing these lawmakers the ability to legislate away laws they no longer like.”

The ERA was recently promoted again in connection with the successful attempt to turn the Virginia state legislature under the control of the Democrat Party in the 2019 election.

Hollywood celebrity-activists, such as Julia Louis-Dreyfus and Alyssa Milano, claiming U.S. women still do not have equal rights under the Constitution, rallied for Democrats to take control of the Virginia legislature as they continued the narrative that Virginia could become the 38th and final state to ratify the ERA.

Only 35 states, however, had ratified the ERA within Congress’s original seven-year deadline, and several states that originally ratified the amendment have rescinded those actions. The Justice Department’s ruling dismisses Virginia’s attempts to pass it.

The Eagle Forum noted the likely effects of the ERA:

It seems Congress and ERA supporters have no problem making political statements under the guise of bringing women equal representation. In reality, the ERA effectively erases women in its effort to create equality through a sex-neutral society. Upon ratification, the days of women-only prisons and shelters, accommodations for pregnant and nursing women, and government-created programs for women, like WIC will be no more.

But, more importantly, the ERA will be the method Virginia Democrats use to facilitate their abortion-on-demand agenda. Last session, they supported House Bill 2491, which allowed for third-trimester abortions and led to discussions on infanticide.

“It is clear Virginia Democrats have failed to consider the consequences to both women and the state in their haste to pass the ERA,” Anne Schlafly Cori, Eagle Forum chairman, said in a statement, adding:

The state should instead follow the actions of Alabama, Louisiana, and North Dakota in filing suit against unlawful efforts to pass the ERA. Without opposition, ERA supporters will succeed in their attempts to undermine the delicate balance of power in the name of “equal rights.”

The Justice Department’s opinion affirms that of the Supreme Court in 1982, in National Organization for Women, Inc. v State of Idaho:

On June 30, 1982, the extended period for ratifying the Amendment expired. The Administrator informs us that no state transmitted a ratification of the Amendment during the period after the original expiration date of March 22, 1979. Congress has not passed any additional extension.

Consequently, the Amendment has failed of adoption no matter what the resolution of the legal issues presented here, and the Administrator informs us that he will not certify to Congress that the Amendment has been adopted.

As the Washington Times reported, the Justice Department’s opinion was released as Virginia’s General Assembly convened its 2020 legislative session.

New Virginia Speaker Eileen Filler-Corn said passage of the ERA is her first priority.

“This House will pass the Equal Rights Amendment,” she vowed.

Still, Schlafly Cori said she is hopeful the Justice Department’s decision will end the narrative that Virginia is to be the final state to ratify the ERA.

“With this opinion, we are hopeful ERA supporters in both Virginia and the rest of the country will stop claiming that there is only one state left to ratify the Amendment,” she said. “The ratification process must start anew. Americans deserve a robust debate on the merits of the ERA.”

Kristan Hawkins, president of Students for Life of America, said in a statement sent to Breitbart News the Justice Department “gets it right” as the ERA “harms women’s interests,” particularly since the amendment states a person’s sex may not be considered in making a legal preference.

“The ERA is a Trojan Horse for abortion that the Justice Department, thankfully, isn’t going to allow inside the Constitution,” she said.

 

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