The Trump administration has asked a judge to throw out a lawsuit filed by three Democratic state attorneys general seeking to force the U.S. archivist to recognize Virginia's vote to ratify the Equal Rights Amendment and adopt it in the U.S. Constitution.
Virginia became the 38th and final state needed to make the ERA part of the Constitution in January, after the General Assembly passed and ratified the amendment.
Attorney General Mark Herring sued David Ferriero, the archivist of the United States, after the National Archives and Record Administration said Ferriero would “take no action" to certify the adoption of the Equal Rights Amendment. Herring was joined in the lawsuit by Illinois Attorney General Kwame Raoul and Nevada Attorney General Aaron Ford, the attorneys general of ratifying states number 36 and 37.
“Donald Trump is telling the women of America that, after 231 years, they should just sit down and wait even longer for equal treatment under the Constitution. It’s wrong, it’s offensive, and it’s shameful,” Herring said in a statement Friday.
The ERA's future is uncertain in part because a ratification deadline enacted by Congress passed decades ago.
On Thursday, the Trump administration asked the court to dismiss the lawsuit, arguing that ratification is not an issue to be decided by the courts.
In a memo supporting the motion to dismiss, Assistant Attorney General Joseph Hunt said the Supreme Court held nearly a century ago that Congress may set a deadline for the ratification of constitutional amendments so that the contemporaneous will of the people is reflected in the amendments.
Herring and other attorneys general argue that the deadline — first set for 1979 and later extended to 1982 — is not binding.
The administration argues that the three states ratified the ERA decades after Congress' ratification deadline and are asking the court to mandate that the archivist certify the ERA.
“But that request is contrary to Supreme Court precedent prohibiting courts from second-guessing the legislature’s inclusion of a deadline for ratification,” they argued.
In the lawsuit, filed in U.S. District Court for the District of Columbia, the attorneys general argue that a proposed constitutional amendment automatically becomes valid as part of the Constitution as soon as it is ratified by the legislatures of three-quarters of the states, or 38. They also argue that the archivist’s duty to certify the amendment is “mandatory and purely ministerial.”
In declining to certify the ERA, the National Archives and Records Administration said it was following advice from the U.S. Department of Justice, which issued an opinion in January saying it was too late for states to sign off because of the deadline. The department said the amendment process must begin all over again.
Herring said he and the other attorneys general plan to file legal briefs opposing the Trump administration’s motion to dismiss their lawsuit.
The Department of Justice did not immediately respond to a request for comment.
The ERA states, in part, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
Supporters believe it would offer stronger protections in sex discrimination cases and give Congress firmer ground to pass anti-discrimination laws.
Opponents say they believe it could erode commonsense protections for women, such as workplace accommodations during pregnancy, and could be used by abortion-rights supporters to quash abortion restrictions on the grounds they discriminate against women.