Federal judge says states acted too late to ratify Equal Rights Amendment

Pete Williams
·3 min read

WASHINGTON — A federal district court judge ruled late Friday that recent state votes to ratify the proposed Equal Rights Amendment came too late to make it part of the Constitution.

The ruling was a defeat for ERA supporters and the three states that asked the judge to declare that the amendment became formally adopted after Virginia last year became the 38th state to ratify it.

Along with Illinois and Nevada, Virginia argued that the Constitution does not give Congress any power to set a time limit on the ratification process. They also argued that the deadline had no force of law, since it was placed only in the amendment's proposing clause, not in the actual text that the states voted on.

But Judge Rudolph Contreras of the federal district court in Washington, D.C., said the vote "came after both the original and extended deadlines that Congress attached to the ERA." A ratification deadline in the introduction "is just as effective as one in the text of a proposed amendment.”

The states now have the option of appealing the ruling. The case is likely headed to the U.S. Supreme Court.

Virginia's attorney general, Mark Herring, said he was considering his options, including filing an appeal.

"The women of this country have waited over two centuries to be afforded equal protections under this country’s founding document, and with today’s decision they will now be forced to wait even longer. That's just wrong," he said.

Originally proposed in 1972, passed overwhelmingly in both chambers of Congress and endorsed by President Richard Nixon, it would amend the Constitution to add this provision: "Equality of rights under the law shall not be denied or a abridged by the United States or any state on account of sex." It would also give Congress power to pass laws enforcing the provision.

Article V of the Constitution provides that once approved by Congress, a proposed amendment is adopted when ratified by three-fourths of the states. Virginia said its vote in January 2020 put the ERA over the finish line.

In proposing the amendment, Congress said the ERA would become valid when ratified by the required number of states "within seven years from the date of submission by the Congress." Another congressional vote extended the deadline, but only by three years — to 1982.

Judge Contreras did not rule on a separate issue involving five states that originally voted to ratify the amendment but then voted to rescind their approval.

Among supporters of the ERA were advocates of abortion rights. NARAL Pro-Choice America said it would "reinforce the constitutional right to abortion" and "require judges to strike down anti-abortion laws."

Abortion opponents agreed with that analysis and fought to prevent federal recognition of ratification. "It would nullify any federal or state restrictions, even on partial-birth or third-trimester abortions," said the National Right To Life Committee.

A senior policy adviser for the organization, Douglas Johnson, praised Friday's decision.

“The Constitution does not empower Congress to time travel to 1972 in order to resuscitate a long-dead amendment,” Johnson said.

Judge Contreras said his ruling expressed no opinion on the merits of the ERA as a matter of policy. "It merely enforces a procedural time limit that Congress set when proposing the amendment."