DOJ’s Office of Legal Counsel: the Equal Rights Amendment Is Dead

With the Commonwealth of Virginia poised to become the decisive 38th state (three-quarters) to ratify the Equal Rights Amendment (ERA) to the U.S. Constitution, the Justice Department’s Office of Legal Counsel on Monday issued a legal opinion stating that the proposed amendment was already expired and the process needs to begin again from scratch.

“Congress has constitutional authority to impose a deadline for ratifying a proposed constitutional amendment,” the opinion stated. “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.”

First proposed in Congress in 1923 and passed in 1972, the ERA sought to ensure equal protection of men and women under federal law. The text of the amendment reads:

 Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

But the proposal failed to pass in three-quarters of state legislatures, the threshold for adding an amendment to the U.S. Constitution before the 1979 deadline imposed by Congress. That deadline was extended to 1982, but still only 35 states had ratified the ERA.

In recent years, states have renewed the push to pass the ERA, with Nevada voting for ratification in 2017, Illinois ratifying in 2018, and Virginia’s newly elected Democratic legislature promising to take the issue up early in 2020.

Proponents of the ERA have argued that the congressionally-imposed deadline is not binding because it was not included in the text of the amendment. Supporters of the amendment this week filed a federal lawsuit in Massachusetts made this argument and also pointed out that the 27th Amendment, first written in 1789, was not adopted until more than 200 years later.

House Democrats in November also passed a resolution in November to remove the deadline.

The DOJ’s OLC opinion clearly stated, however, that the initial deadline was enforceable and that Congress does not have the power to change the deadline, effectively rendering the ERA dead.

“We conclude that when Congress uses a proposing clause to impose a deadline on the States’ ratification of a proposed constitutional amendment, that deadline is binding and Congress may not revive the proposal after the deadline’s expiration,” the OLC wrote. “Accordingly, should Congress now ‘deem [the ERA] necessary,’ U.S. Const. art. V, the only constitutional path for amendment would be for two-thirds of both Houses (or a convention sought by two-thirds of the state legislatures) to propose the amendment once more and restart the ratification process among the States, consistent with Article V of the Constitution.”

Read the full OLC opinion below:

OLC Equal Rights Opinion by Law&Crime on Scribd

[image via Alex Wroblewski/Getty Images]

Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.

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