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Ratification of ERA runs into opposition — from Ruth Bader Ginsburg?

David G. Savage, Los Angeles Times on

Published in News & Features

WASHINGTON -- When Virginia last month became the 38th state to approve the Equal Rights Amendment, the constitutional process launched by Congress in 1972 appeared to finally have what it needed for ratification.

It seemed fitting in 2020 to enshrine in the Constitution the principle of full equality for women on the 100th anniversary of the 19th Amendment, which gave women the right to vote.

But the celebration has been chilled by opposition -- not only from conservatives and the Trump administration, but also from Justice Ruth Bader Ginsburg, who was a pioneering advocate for women's equality in the 1970s.

Opponents have argued that ratification by the required 38 states has come too late -- decades past the 1982 deadline set by Congress -- and amid legal questions that would likely tie up the amendment in courts and erode its legitimacy.

And the dispute has become entangled in the politics of abortion. The National Right to Life Committee and some Republican lawmakers say the ERA could be wielded to strike down laws limiting abortion or barring the use of taxpayer funds to pay for abortions for low-income women.

It's unclear not only unclear whether Virginia's ratification is valid, but also who would make that decision. Some say it is up to Congress. Others say it is up to judges and ultimately the Supreme Court. Nevada was the 36th state to ratify, in 2017, and Illinois was the 37th, in 2018.

 

The Justice Department's Office of Legal Counsel issued a 38-page opinion last month that told the National Archives and Records Administration it should not certify the ERA as the 28th Amendment. The archivist, who is a historian and a librarian, has the legal duty to certify and publish new amendments to the Constitution.

The opinion focused on the joint resolution adopted by more than two-thirds of the House and Senate in 1972. It said the Equal Rights Amendment shall become part of the Constitution "when ratified by the legislatures of three-fourths of the several states within seven years from the date of its submission by the Congress." The deadline was later extended to 1982.

The text of the proposed amendment said: "Equality of rights under law shall not be denied or abridged by the United States or by any state on account of sex." A second provision said Congress "shall have the power to enforce" the new amendment "by appropriate legislation."

Twenty-two states including California ratified the ERA in 1972, and the total reached 35 in 1977. But no additional states ratified by 1982.

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