Equal Rights Amendment and Justice Ginsburg’s ‘hope’ comments

A recent article in The Hill, “No, Justice Ginsburg, we don’t need a constitutional amendment to protect equal rights for women” accurately points out some consequences of the ERA. However, while I agree the Equal Rights Amendment (ERA) must start over, I’m not sure I can agree with the author’s opinion:

Justice Ginsburg reiterated her support for the Equal Rights Amendment, while making it clear — contra many of the amendment’s other supporters — that in order to be added to the Constitution, proponents would have to restart the ratification process.

I wish I could believe that Justice Ginsburg merely said, “I hope someday it [ERA] will be put back in the political hopper and we’ll be starting over again collecting the necessary states to ratify it.”

Justice Ginsburg’s “hope” is not a white flag of surrender, or assurance that she would oppose adopting the ERA with three more states ratifying after the amendment’s 1982 deadline.

ERA advocates claim they can revive the original 35 states’ ratifications and make them current towards adding the ERA to the Constitution if the 1978 ERA extension deadline is removed from the 1978 extension by the current Congress, thus leaving no time deadline for ERA ratification.ERA advocates also do not recognize actions by the five states which rescinded their earlier ERA ratifications.

Putting the ERA “back in the political hopper” could mean passing Rep. Jackie Speier’s (D-Calif.) H. J. Res. 38 to remove the “not later than June 30, 1982” ratification deadline contained in H.J. Res. 688, which added three years, three months and a few days to the original deadline.

That “new” deadline expired almost 38 years ago, with 35 states ratifying the ERA and five rescinding. Current ERA advocates argue states cannot legally rescind prior approvals of amendments, despite the position of U.S. Solicitor General Robert Jackson — formerly U.S. attorney general, Supreme Court justice, and chief prosecutor for the U.S. at Nuremberg — who argued in the Amicus for the United States in Coleman v. Miller that states could legitimately rescind prior amendment ratifications as long as three-fourths of the states had not ratified an amendment.

None of the pro-ERA organizations or members of Congress have stopped lobbying for their “three-state strategy,” which began after an article appeared in a 1997 William and Mary Journal of Women and the Law. 

ERA advocates today claim that Nevada ratified the ERA in 2017, and Illinois ratified in 2018, so if only one more state (from those that never ratified the ERA by the 1982 deadline) were to move to ratify the ERA would be added to our Constitution — in clear opposition to historical experience.

Such “ratification” would certainly set off court challenges. Would the court follow the precedents of Dillon v. Gloss (1921) and Coleman v. Miller (1939)? Or, would the court affirm the novel — in fact, revolutionary — three-state ERA gambit? 

Would Justice Ginsburg and her “living Constitution” colleagues conclude that ERA ratifications that passed after the congressionally established deadline are invalid? Or would they conclude that H.J. Res. 38 or a similar joint resolution to re-write the deadline is legitimate, and therefore only three more states would be needed to complete adoption of the ERA?

I advise caution in reading too much into Justice Ginsburg’s comments, given her decades of advocacy for the ERA and its failure to pass Congress year after year. 

During the 1978 hearings on the ERA, Eleanor Smeal, then head of the National Organization for Women (NOW), cited a legal brief prepared by six attorneys, including Lawrence Tribe of Harvard, Thomas Emerson of Yale, and Ruth Bader Ginsburg of Columbia, quoting Dillon v. Gloss: “Congress has the unreviewable authority … as interpreted by the Supreme Court, to determine in advance the time within which a proposed amendment must be ratified.”

On Oct. 3, 1977, the Hon. Robert Lipschutz, counsel to President Jimmy Carter, was informed by John Harmon, assistant attorney general, that: “Certainly, if a time limit has expired before an intervening Congress has taken action to extend that limit, a strong argument could be made that the only constitutional means of reviving a proposed amendment would be to propose the amendment anew by two-thirds vote of each House.”

The Justice Department has not yet publicly weighed in on the propriety of H. J. Res 38, which argues that the 1982 ERA expiration date may be abolished 37 years later in order to resurrect the ERA from its legislative grave.

But perhaps even more dangerous, Justice Ginsburg’s “hope” comments can be used to assure legislators currently opposed to novel ERA efforts that they can vote to “ratify” the ERA for purely symbolic reasons.

The ERA three-state novelty is convenient because ERA forces have not had the support of two-thirds of the Congress required to pass the ERA constitutional amendment since at least 1977. Should a third state illegitimately “ratify” the ERA, given the Supreme Court’s history of surprise rulings, the outcome of such a challenge is anyone’s guess.

Robert Marshall served 26 years as a member of the Virginia House of Delegates, worked for three members of Congress, and is the author of “Reclaiming the Republic.”