Tuesday, October 27, 2020
Bob Egelko, Equal Rights Amendment Battle Highlights Obstacles to Challenging Federal Decisions in Court, S.F. Chronicle, Oct. 24, 2020
The prospects of judicial approval of the Equal Rights Amendment have taken a quiet step backward with a ruling that said women - individually or in advocacy groups - cannot sue the government to declare the amendment ratified because they lack a "personal stake" in its passage.
The proposed constitutional ban on sex discrimination, first introduced in 1923, could still be revived by the courts or Congress. But the latest judicial decisions are another signal that some actions by federal or state governments - like changing the Constitution, approving construction in a park or forest or even refusing to defend a voter-approved ban on same-sex marriage in California - can be difficult or impossible for private citizens to challenge in court.
To establish legal "standing" - the right to sue - in federal court, "you have to have a personal stake in a controversy ... some skin in the game," said Evan Lee, an emeritus professor at UC Hastings College of the Law in San Francisco who has studied the issue.
"No matter if you've devoted your life to pursuing this particular cause," like environmental protection or the Equal Rights Amendment, "that's not skin in the game" according to the Supreme Court, said Lee, who is critical of the court's restrictions. In most cases, he said, the best way to establish standing is to claim the government's actions will deprive you of money or property.
"People can't sue just by saying the government is violating the Constitution," said Erwin Chemerinsky, dean of the UC Berkeley School of Law. "I wish the court had a different view of standing," but under its established precedents, "an injury shared in common with everybody is a generalized grievance" that cannot be challenged in court.
Even if that "grievance" is a federal official's rejection of a constitutional amendment that's the reason for your group's existence.***
But U.S. District Judge Denise Casper ruled in August that the women, while devoted advocates of the ERA, had no more legal interests or rights at stake than the rest of the population and could not show an "individualized and concrete stake in the outcome."
Casper said the Supreme Court used the same standard in 1971 to dismiss a suit by the Sierra Club challenging the government's approval of a new highway and power lines in Sequoia National Forest - construction that may have lessened the forest's beauty and visitors' enjoyment but did not harm their individual rights, the court said. Casper also said the assault victim could not attribute her injuries, physical or legal, to the archivist's refusal to recognize the amendment.
Both Casper and Ferriero were appointed by President Barack Obama.
The plaintiffs sought immediate review in the Supreme Court, arguing it was "indisputable and intolerable" that "women suffer harm because they are unequal based on sex" and that the ERA's advocates have crucial interests at stake. But the court left Casper's ruling intact on Oct. 13 in a one-line order, with no recorded dissents.
The order did not end the case, which is heading to a federal appeals court. The fate of the amendment could still be affected by a separate suit filed in January by the three late-ratifying states and possible future legal action by Congress. The House passed a resolution by Rep. Jackie Speier , D-San Mateo, in February to eliminate the deadline, and it could reach the Senate floor next year if Democrats gain a majority. On the other side, legislators in at least four states - Nebraska, Idaho, Kentucky and South Dakota - have voted to rescind their previous approval of the ERA.