Tuesday, October 27, 2020
Equal Rights Amendment supporters won’t get an immediate hearing at the U.S. Supreme Court as they fight to ensure the nearly 50-year-old proposition is added to the U.S. Constitution.
The high court on Tuesday denied an unusual direct Supreme Court petition, which would have leapfrogged a U.S. appeals court, after a federal trial court in Boston dismissed their lawsuit for lack of standing.
“The petition for a writ of certiorari before judgment is denied,” the justices said.
The case is one of the two pending in federal courts over the ERA’s drawn out, and therefore disputed, ratification. ERA supporters had argued immediate Supreme Court action was appropriate “because the ERA is the most important and fundamental of all women’s rights, but also because everyone in America has a right and need to know whether it is now the Twenty-Eighth Amendment to the Constitution.”
The case had been dismissed on standing grounds in August, and the plaintiffs sought a direct petition in the Supreme Court
A Boston judge dismissed one of two federal lawsuits over the Equal Rights Amendment, finding the women’s rights groups who sued to ensure its addition to the U.S. Constitution lacked legal standing to bring the case.
The case—like a similar lawsuit pending in Washington—sought official recognition of the ERA as the 28th amendment to the Constitution after Virginia became the 38th state to ratify it in January. If its ratification is deemed valid, the amendment that Congress advanced to the states in 1972 would create a constitutional guarantee of equal treatment under the law for women, potentially affecting a broad swath of the law governing employment, health care, and more.
ERA supporters and those who oppose its ratification disagree over the validity of the 1979 deadline Congress imposed for three-fourths of states to approve it. A U.S. Justice Department legal opinion published in January found the deadline to be valid, and the U.S. archivist has declined to certify the ERA as officially ratified.
In the Boston lawsuit, the advocacy groups Equal Means Equal and The Yellow Roses, along with an individual woman, Katherine Weitbrecht, asked the court to order Archivist David Ferriero to grant that certification.
The women’s groups and Weitbrecht failed to show they’d suffered injuries that could be remedied by the court, a prerequisite to their maintaining the suit, Judge Denise J. Casper wrote in a decision granting the Justice Department’s motion to dismiss the case.
The judge stopped short of ruling on the merits of the case—namely, whether the 1979 deadline is valid and whether five states that voted to rescind their ERA approval had legal authority for those rescissions.
“Plaintiffs argue that all persons that would be protected under the ERA are injured by the Archivist’s actions because they have a legal interest in the ‘continued vitality of the ERA,’” Casper wrote.
“Cognizable injuries must be both concrete and particularized,” the judge said. “These generalized injuries to all those protected by the ERA fail in both respects.”
An attorney for the Boston plaintiffs said she is prepared to appeal and simultaneously seek review by the U.S. Supreme Court, following the model of a previous ERA lawsuit.
“Legally the judge got it wrong, but politically the decision was anticipated and we have already prepared a cert petition to get the case before the Supreme Court as soon as possible,” said Boston attorney Wendy J. Murphy. “It’s not common to go straight to the Supreme Court from the District Court but it’s exactly what happened with the Idaho ERA case in 1980, so we will follow that model and file an appeal with the First Circuit and a cert petition with SCOTUS.”
See also SF Chronicle, Equal Rights Amendment Battle Highlights Obstacles to Challenging Federal Decisions in Court