Alabama, 4 other states prevail in suit to block Equal Rights Amendment certification

MONTGOMERY, Ala. (WSFA) - A federal appeals court has ruled against backers of the proposed Equal Rights Amendment, which would have become the 28th Amendment to the U.S. Constitution had it been ratified before a Congressionally-mandated deadline ran out in the 1970s.

Alabama Attorney General Steve Marshall hailed Tuesday’s ruling by the U.S. Court of Appeals for the D.C. Circuit as “a significant victory for the rule of law” after Alabama and four other states sued to prevent the U.S. Archivist from certifying the ERA as a constitutional amendment.

Tuesday’s ruling is decades in the making.

Congress submitted the proposed ERA to the states for ratification in 1972, at which time it placed a seven-year deadline on the ratification process. That deadline passed before 38 states approved it. In 2018, however, Nevada brought the decades-old ERA back to the forefront when it approved ratification.

Illinois and Virginia quickly followed Nevada’s lead, becoming the 37th and 38th states to greenlight the ERA. That milestone prompted supporters to proclaim the ERA had reached the constitutionally-required approval of three-quarters of the states to become the law of the land. The three states then filed a lawsuit aimed at forcing the Archivist to certify the amendment’s official ratification, though Virginia later dropped out of the suit.

Alabama, Louisiana, Nebraska, South Dakota and Tennessee then sued to prevent the Archivist from performing the certification, asserting that Congress’ seven-year deadline had long since passed and any attempt to enact the ERA as a new amendment would have to start with a new amendment process.

Tuesday’s ruling affirmed the position of the five conservative states with the court holding that “the ERA’s deadline barred Plaintiffs’ late-coming ratifications,” and rejecting challenges that the deadline was invalid or could be ignored.

“Today, the U.S. Court of Appeals for the D.C. Circuit agreed with our argument that Nevada and Illinois cannot purport to ratify a proposed amendment that expired decades ago and then force the Archivist to sneak the Equal Rights Amendment into the Constitution,” said Marshall. “We are glad the court rejected plaintiffs’ calls to unconstitutionally amend our Constitution,” continued Marshall. “If activists want a new ERA, they should persuade their fellow Americans that it makes sense, then pass it through Congress and a new state ratification process.”

Marshall, in announcing the court’s decision, pointed to statements made by the late Supreme Court Justice Ruth Bader Ginsburg, who was a supporter of the ERA, when she noted that the deadline’s expiration meant that the ERA couldn’t become law unless it started over and collected the required number of states to be ratified.

Tuesday’s ruling was given by a three-judge panel of the court. The plaintiffs can either ask that a rehearing be held by the full court or seek a ruling from the U.S. Supreme Court.

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