Wednesday, January 12, 2022
Amicus Brief in Virginia v. Ferriero (D.C. Cir.)
SUMMARY OF ARGUMENT
The fight for constitutional equality is a long-term project, andprogress has been painfully slow. For the first 144 years of our Nation’s history, women were denied the most basic right of citizens in a democracy: the right to vote. Women who otherwise met all criteria for voting found themselves barred from the polls, simply because of their sex. Their absence from the polls contributed to the development of laws and institutions that persistently discriminate against women.
Today, women serve with distinction in the C-suite, on the floor of Congress, on the soccer field, in the White House, and in combat. Yet women still face persistent inequality in nearly every sphere. Women are consistently underrepresented in positions of power and overrepresented among those in poverty. Women are still paid only 82 cents for every dollar paid to men—and, for women of color, even less than that. Women also face an epidemic of domestic and sexual violence. These problems are particularly acute for Black women, Latinas, indigenous and Native American women, immigrants, lesbians, trans women, and single mothers.
In the face of this persistent inequality, the Equal Rights Amendment is as relevant today as it ever was. The ERA declares that “[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Drafted by Alice Paul and other suffragists in the 1920s, the ERA passed through Congress in 1972 with broad, bipartisan support. After the number of state ratifications stalled at thirty-five in the late 1970s, the fight for equality pressed forward, achieving steady progress on many fronts, including in public opinion. Today, Americans overwhelmingly support including an ERA in our Constitution. Three quarters of the States have now voted to ratify the ERA—satisfying the constitutional threshold—and there are active ratification efforts in every one of the unratified States. Yet the Archivist asks this Court to send the fight for constitutional equality back to square one.
This Court should reject that argument. The painfully slow progress toward equality makes it particularly important in this context to respect the plain text of Article V, which establishes a process for amendment that leaves no room for time limits. The ERA satisfied Article V’s amendment process in January 2020, when Virginia became the thirty-eighth State to ratify. Now that the ERA has been adopted, federal law requires the Archivist to publish it. See 1 U.S.C. § 106b. The seven-year time frame that Congress imposed in 1972 does not and cannot alter the process in Article V. The ERA’s time frame does not appear in the amendment itself; Congress placed it only in the resolving clause of its joint resolution. At a minimum, that choice means that Congress reserved for itself the power to change the time frame in a subsequent joint resolution—as it did in 1978.
More fundamentally, however, a time frame imposed unilaterally by Congress cannot stand in the way of an amendment that has met all the requirements for ratification under Article V. The validity of an amendment depends on the plain text of Article V, which provides that an amendment becomes “valid to all intents and purposes . . . when ratified by the legislatures of three fourths of the several States.” Although the Framers did not recognize women as equal, they created a process for amending the Constitution that could reflect changes in our Nation’s understanding of equality, even when those changes evolve over many years. The ERA reflects such a change.
Publication by the Archivist is an important step forward. To be sure, the legal effect of an amendment does not depend on any action by the Executive Branch, which has no role to play under Article V. But the Archivist’s current refusal to publish the ERA is itself an inappropriate intrusion of the Executive Branch into the ratification process. One of the practical consequences of that refusal is its impact on the ongoing efforts by activists to press for revision of state statutes that continue to discriminate on the basis of sex. Although some States may be willing to make those revisions even without federal recognition of the ERA, others will not. In that respect—among others—the district court was wrong to assume that publication by the Archivist will make no difference.