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Equal Rights Amendment failed to meet deadline, too late to ratify: Justice Department

Equal Rights Amendment failed to meet deadline, too late to ratify: Justice Department

The entrance signage for the United States Department of Justice Building in Washington D.C. The Department of Justice, the U.S. law enforcement and administration of Justice government agency. | Getty/ stock photo

The Equal Rights Amendment has failed to reach the necessary number of states to support ratification by its deadline, according to the U.S. Department of Justice.

Multiple state legislatures have considered legislation to give the ERA the necessary super-majority to be added to the U.S. Constitution.

However, Assistant Attorney General Steven Engel issued a memorandum Monday explaining that the ERA has already failed to meet a previously determined deadline by Congress.

“Congress has constitutional authority to impose a deadline for ratifying a proposed constitutional amendment,” Engel wrote.

“It exercised this authority when proposing the Equal Rights Amendment and, because three-fourths of the state legislatures did not ratify before the deadline that Congress imposed, the Equal Rights Amendment has failed of adoption and is no longer pending before the States.”

Engel added that “even if one or more state legislatures were to ratify the proposed amendment, it would not become part of the Constitution, and the Archivist could not certify its adoption under 1 U.S.C. § 106b.”

Kristen Waggoner of the conservative legal group the Alliance Defending Freedom expressed support for the DOJ's opinion, noting that the ERA not only “falls far short of the requirements to amend the Constitution,” but also “undermines women’s rights and opportunities.”

“Women deserve to be treated with equality and fairness under the law, but that’s not what the ERA does. If its proponents wish to convince the American people of its merits, they must follow the process laid out in the Constitution,” Waggoner said Wednesday.

“Following that process by starting over respects the American people and the integrity of the Constitution. And that’s good no matter what side of the aisle we find ourselves.”

Toni Van Pelt of the progressive group the National Organization for Women, denounced the DOJ's opinion, arguing that it was part of the Trump administration’s ongoing opposition to “women’s rights and gender equality.”

“Legislation is pending in Congress to remove the 1979 deadline which appears in the preface to the Equal Rights Amendment in the 1972 resolution. NOW and our grassroots activists are working hard to assure that this happens,” Van Pelt said.

The DOJ's opinion on the ERA came as the Commonwealth of Virginia, whose new legislative session included a Democrat majority, looked to possibly become the 38th and final state needed to pass the amendment.

In 1972, Congress passed the ERA and sent it to the states for ratification with a seven-year deadline. Even with deadline extension to 1982, the ERA failed to get 38 states for ratification by three states.

Conservative groups have long been opposed to the ERA, with recent concerns surrounding the belief that the ERA would be used to advance abortion and LGBT policy positions.

Mat Staver, founder and chairman of the Liberty Counsel, told The Christian Post in an interview last year that he believed if the ERA 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.”

Pro-ERA organizations like the Alice Paul Institute have argued that the deadlines previously imposed could be changed by Congress.

“Congress may be able to accept the validity of state ratifications that occur after 1982 and keep the existing 35 ratifications alive,” according to the FAQ paper by the institute.

“Five states — Idaho, Kentucky, Nebraska, Tennessee, and South Dakota — have attempted to withdraw their approval of the Equal Rights Amendment. However, according to precedent and statutory language, a state rescission or other withdrawal of its ratification of a constitutional amendment is not accepted as valid.”

This week, the U.S. Department of Justice (DOJ) Office of Legal Counsel announced an important opinion on the Equal Rights Amendment (ERA), declaring the ratification expired and no longer pending in the States for action. In a Memorandum for the General Counsel of the National Archives and Records Administration, DOJ declares dead any effort by Virginia to become the “38th” state as the new Democrat-controlled legislature pledged in its opening session. It also overrules congressional efforts to revive the ERA ratification by removing the deadline as proposed in legislation pending on the floor of the U.S. House of Representatives.        

In a statement to CP, Penny Nance, CEO and president of Concerned Women for America, said the "DOJ’s opinion declaring the ratification dead underscores what even Justice Ruth Bader Ginsburg has already concluded: if the ERA has any future, the process must start over.

“Concerned Women for America says, 'R.I.P ERA.' Women deserve fairness and equality under the law, but Congress should not waste its time on an ERA that could in fact undermine the progress we’ve made over the last 40 years. If legislators are truly concerned about women, they should spend their efforts focusing on measures to uphold the dignity and status of women as uniquely female, not turn back the clock on gains we’ve made and ERAse women.”

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