Supporters of the Equal Rights Amendment plan to continue their legal battle after an appeals court affirmed a lower court ruling that rejected their lawsuit on behalf of the proposed amendment for lack of standing.
In 2020, the groups Equal Means Equal, the Yellow Roses, and a Massachusetts woman named Katherine Weitbrecht sued National Archivist of the United States David Ferriero over his refusal to add the ERA to the United States Constitution.
The groups reasoned that, with the Commonwealth of Virginia recently passing the ERA, the proposed amendment had reached the necessary 38-state threshold to be ratified.
However, in late June, a three-judge panel of the U.S. Court of Appeals for the First Circuit issued a unanimous ruling against the groups, arguing that they lacked the standing to sue.
“Equal Means Equal and The Yellow Roses do not purport to premise their standing here on any benefit that has been denied to them by the challenged actions of the defendant in the way in which the plaintiffs in those three cases did,” wrote First Circuit Judge David Barron for the panel, affirming a lower court decision.
“They instead premise their standing on the risk of harm that they contend they face because of the Archivist's failure to publish the ERA. Thus, those precedents fail to support the conclusion that the plaintiffs plausibly assert the requisites for standing.”
Barron also rejected the argument by the plaintiffs that women face “an increased risk of suffering sex-based violence and other harms” due to the rejection of the ERA.
“But, neither these aspects of the complaint nor any other purport to address how any causal link between the risk of such harm that Weitbrecht in particular faces and the Archivist's failure to publish the ERA differs from the causal link between the risk of such harm that the organizations' members generally face as women and that failure,” continued Barron.
Barron did conclude that the “constitutional questions that the plaintiffs' complaint raises concerning the legal status of the ERA are significant.”
“To be fit for adjudication in federal court, however, they must be raised in a suit that satisfies the requirements of Article III,” he concluded.
In a statement released last week, Equal Means Equal said they “will seek further review of this outrageous decision by the full First Circuit Court of Appeals.”
“How can any court rule that women as a class have no standing to even SPEAK in court when the government unlawfully blocks women from achieving equal protection of the law — even after the ERA was ratified by the necessary 38 states on January 27, 2020?” stated the group.
“Over 46 million women voted for President Biden and Vice President Harris, in part because they explicitly stated during their campaign that they support the ERA being published in the Constitution!”
In August of last year, Judge Denise Casper of the U.S. District Court for the District of Massachusetts dismissed the lawsuit by the groups over lack of standing.
In 1972, Congress passed the ERA and sent it to the states for ratification with a seven-year deadline which was eventually extended to 1982.
The proposed amendment reads that “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
Although the ERA failed to get the necessary 38 states for ratification at the time, more recently three states passed it, concluding that the passed deadline was not an issue.
Litigation aimed at allowing the new passages to count and to nullify the votes taken by some states to rescind the ERA has yet to be successful in making the proposed amendment official.
Conservative groups have long been critical of the ERA, arguing that it will be used, among other things, to further advance abortion and possibly curb religious liberty.
Mat Staver, founder and chairman of the Liberty Counsel, told The Christian Post in a 2019 interview that he believed the ERA would “absolutely” threaten religious freedom if approved.
Staver believed that if the ERA is passed, it could “be used as a hammer against religious organizations, including churches, to provide abortion or abortion-inducing drugs or devices.”
“I think also the ERA now would include an LGBT agenda that would conflict with churches and religious organizations with respect to biblical doctrines and beliefs of male and female in uniquely created and complementary sexes,” Staver said at the time.
“So I think in both the abortion area and in the LGBT arena, the ERA Amendment would be a direct assault on religious liberty, against religious organizations and churches.”