ERA Must Take Its Rightful Place in the Constitution

Equal Means Equal, our nonpartisan human rights organization, has played a leading role in the revitalized movement to ratify the Equal Rights Amendment over the past decade. From broad cross-sector educational initiatives using traditional and new media platforms, to grassroots organizing in multiple unratified states, to legislative issue advocacy on the Hill and K Street, to finally seeking a legal remedy, we have been relentless in our battle to bring the United States to global standards on the rights of its women and girls, starting by validating ERA as the 28^th Amendment to our Constitution.

Following the release of our eponymously titled award-winning documentary, Equal Means Equal (August 2016), we moved to the frontlines of the battle to resurrect and ratify ERA. We organized hundreds of screenings nationwide with dozens of local partners that served as recruiting hubs for women on the ground as well as voter registration drives. These newly formed groups mobilized for the legislative ERA ratification fights in Nevada in 2017 and Illinois in 2018. In 2019, after three years of stonewalling from Virginia state legislators, we implemented a massive voter education and get-out-the-vote campaign that helped flip that state’s General Assembly to a pro-ERA majority in November and a “yes” vote for ERA on January 27^th of 2020, achieving the necessary three-fourths of the states.

Throughout our journey we have had to take the fight to the streets in the form of non-violent demonstrations; into legislative hearing rooms where we have offered expert testimony; to the ballot box with a coalition of voters united around equal rights advocacy; and ultimately in January to the federal courts.

Our complaint brought in U.S. District Court in Boston, calls on the courts to compel the Archivist of the United States to formally record ERA as the 28th amendment to the Constitution and declare the ERA as valid now that Virginia became the requisite 38^th state to ratify the amendment. The Archivist has said he will not take action without a court order.

Along with Equal Means Equal, our co-plaintiffs include college sophomore Katherine Weitbrecht, a resident of Norfolk County, Mass., who was mocked and strangled by a man because she was wearing a rape whistle on campus late at night. She was not accorded equal protection under the law when her case was only charged as a misdemeanor because a hate crime was not possible. Massachusetts excludes women under its hate crime statute.

The third plaintiff is the Yellow Roses, a volunteer student organization founded in 2015 in Quincy, Mass., by a group of middle school girls, whose sole mission is to advocate for and raise public awareness about ratification of the ERA.

Together, we contend in our complaint that ratification deadlines imposed on the states are invalid. Article V of the United States Constitution nowhere grants Congress the power to impose deadlines. Under Article V, an amendment becomes valid when three-fourths of the states ratify it.

To quote Equal Means Equal legal counsel Wendy Murphy, “Even if Congress may impose deadlines, they may not be placed outside the text of the amendment itself, as happened with the ERA. Our position is that extra-textual deadlines are unconstitutional.”

As anticipated, the Department of Justice filed a motion to dismiss our complaint, arguing, among other questionable points, the ratification deadline for ERA had passed. There were no surprises in the DOJ’s response to our complaint.

“The government’s motion makes all the arguments we expected them to make about why they believe the ERA is dead," Murphy has explained. "We aren’t surprised because we know that some people in this country want very badly to keep women unequal under the Constitution, subject to unequal pay and disproportionately high rates of violence and abuse.”

Here is our response to the DOJ, filed today.

The Trump administration telegraphed its intent in January by publicly citing its opposition to adding the ERA to the Constitution when it advised the Archivist against officially recording the amendment as duly ratified.

So, while we are dismayed by this attempt to move the goalposts at the one-yard line, and we reject the intrusion of the executive branch into a matter properly belonging to the states, we are not at all surprised. Our opponents have tried to stop us every step of the way.

Before we made Equal Means Equal, people told us either the ERA had passed, or it was irrelevant; then we showed them why it still mattered. Before we won Nevada in March of 2017, people insisted the original ERA was dead and buried, that we’d have to start from scratch; but we kept pushing for the three-state strategy, unwilling to throw away 35 state ratifications and over a century of struggle by millions of American women and our allies.

After Nevada ratified, we were told that Illinois was impossible; for the last 25 years they had pushed for a yes vote in the House to no avail – it would never happen. We rallied groups, established and newly formed, to come together across the state: across ethnic and racial divides; in rural and urban areas; across party lines; and Illinois ratified ERA on May 30^th of 2018.And finally, in Virginia, where deeply rooted incumbents responsible for the egregious racially gerrymandered maps in that state laughed at our efforts to mobilize women, youth and people of color around the Equal Rights Amendment. We were a source of some amusement and derision for the first three years. This past year? Not so much.

So here we are. American women have delivered what was asked of us almost a hundred years ago, three-fourths of the states, and now they are telling us that it’s not good enough. That we need to go back and start again. Stay in our second-class legal status for another few decades.

Ignore the pandemic of sexual violence in this country that the Thompson Reuters Foundation says puts the U.S, in a tie with Syria as the third most dangerous country on earth for women. Continue to do nothing about the underpaid mothers losing their kids to social services, the pregnant worker kicked off her healthcare in her eighth month. Accept and absorb the deep disrespect that the exclusion of women from our Constitution represents. Well, we won’t accept it any longer. We demand basic human equality and fully equal protection under the law for the first time in our nation's history.

The legal issues are indeed complex and unique, since the Constitution doesn’t get amended very often, but we are confident that our complaint stands on solid ground. We trust the arc of the moral universe has finally bent far enough to shelter us all with equality on the basis of sex.

Dedicated lawyers and diverse organizations from around the country are lining up in support of our case. As Alice Paul said, “there’s nothing controversial about ordinary equality.” We are, and will be, undeterred, until this war is won. We have come to the courts for answers and for justice.

Constitutional Interpretation, Equality and Liberty