The other lawsuit argues that he should not certify the ERA because the ratification process is invalid. In a January 6, written opinion responding to a request for clarification from the U. This dispute is being fought out on untrodden constitutional ground, and further developments will determine when the ERA will take its place as the 28th Amendment to the Constitution.
With new leadership at the Department of Justice under the administration of President Joe Biden, that position may be reevaluated and revised. Archivist David Ferriero arguing that he has a ministerial duty defined as the action of a public officer with no room for the exercise of discretion because the action is required by law to publish and certify the ERA as part of the Constitution.
One of these lawsuits Virginia, et al. The other lawsuit Equal Means Equal, et al. That litigation was dropped when the plaintiffs filed a motion to dismiss and a separate motion to intervene in the lawsuit of Virginia, Illinois, and Nevada.
On March 5, U. On May 3, the plaintiffs filed an appeal of that ruling with the U. Many ERA opponents, including the litigants in the anti-ratification lawsuit, continue to refer to a Idaho v. Freeman district court ruling to support their contention that deadline extensions are invalid and rescissions are permissible.
It is important to note that this decision was vacated as moot by the Supreme Court in and has no legal standing as a precedent. While these issues are being resolved, legislatures in the remaining 12 unratified states continue to have the ability to approve the amendment, and ERA ratification bills are being introduced in the current session in a number of them. The first amendment with a Congressionally imposed ratification deadline was the 18th Amendment Prohibition , which was sent to the states in with an arbitrarily chosen time limit of seven years.
The 19th Woman Suffrage Amendment was passed by Congress with no deadline, but all subsequent proposed amendments that were eventually ratified contained a seven-year time limit either in the text of the amendment or beginning with the 23rd Amendment in and including the ERA in the proposing clause, not in the language ratified by the states. The Supreme Court in Dillon v. The Court later said in Coleman v. No legal barrier prevents Congress from eliminating the deadline altogether — and doing so retroactively.
Article V grants no power of rescission to the states, and based on both precedent and statutory language, a state withdrawal of its ratification of a constitutional amendment has never been accepted as valid. Five states — Idaho, Kentucky, Nebraska, Tennessee, and South Dakota — attempted to rescind or withdraw their approval of the Equal Rights Amendment before the deadline.
No state vote to withdraw approval of a constitutional amendment has ever been recognized as valid. New York retracted its ratification of the 15th Amendment before the last necessary state voted yes in , but it was listed as a ratifying state. Archivist David Ferriero wrote on October 25, to Congresswoman Carolyn Maloney, lead sponsor of the ERA in the House of Representatives, in response to her query about the official list of ratified states and the validity of rescissions:.
It also states that [the U. State constitutions in half of the 50 states contain a guarantee of equal rights on the basis of sex, providing extensive evidence about the prospective impact of a federal ERA based on decades of state-level equal rights jurisprudence. Only a federal Equal Rights Amendment can provide the highest and broadest level of legal protection against sex discrimination.
States guarantee equal rights on the basis of sex in various ways. Some e. Some states place certain restrictions on their equal rights guarantees: e. Ironically, three states with state-level equal rights amendments or guarantees — Florida, Louisiana, and Utah — have not yet ratified the federal ERA. The ways in which state equal rights guarantees are worded, cited in lawsuits, or interpreted by state courts to achieve equal rights on the basis of sex are varied.
Utah and Wyoming entered the Union in the s with constitutions that affirm equal rights for male and female citizens. Some states e. Others e. Some state equal rights guarantees are restricted: e. Efforts to add equal rights amendments to state constitutions continue, with Nevada and Minnesota working toward that goal through a public referendum on a legislative action to amend their state constitution.
The 14th Amendment has never been interpreted to make sex a suspect classification like race, religion, and national origin.
Progressive laws can be repealed, ineffectively administered, or unfairly interpreted based on social or political bias. The 14th Amendment was ratified in , after the Civil War, to deal with race discrimination. In referring to the electorate, it added the word "male" to the Constitution for the first time. Over a century after it was ratified, the 14th Amendment was first interpreted by the Supreme Court to prohibit sex discrimination. However, in Reed v.
Reed and subsequent decisions e. Boren, ; United States v. Commonwealth of Virginia, , the Court declined to elevate sex discrimination claims to the strict scrutiny standard of review that 14th Amendment jurisprudence requires for the suspect classifications of race, religion, and national origin.
Disparate treatment of such protected classes must bear a necessary relation to a compelling state interest to be upheld as constitutional. However, the intermediate standard of review requires only that such classifications must substantially advance an important governmental objective. The ERA would make sex a suspect classification protected by the highest level of judicial scrutiny.
Congress can amend or repeal anti-discrimination laws by a simple majority, the Executive Branch can negligently enforce such laws, and courts, including the Supreme Court, can interpret the intermediate standard of review to permit certain forms of sex discrimination. Some of those constitutions — in Japan and Afghanistan, for example — were written under the direction of the United States government.
In an interview reported in the January California Lawyer , the late Supreme Court Justice Antonin Scalia disregarded 40 years of 14th Amendment precedent when he stated that the Constitution does not protect against sex discrimination. This remark has been widely cited as clear evidence of the need for an Equal Rights Amendment, in order to guarantee that all judges, regardless of their judicial or political philosophy, will have to interpret the Constitution to prohibit sex discrimination.
In federal courts, including the Supreme Court, a number of restrictive laws dealing with contraception and abortion have been invalidated since the mid—20th century based on the constitutional principles of right of privacy and due process, not equal rights.
Roe v. Wade falls within a line of court decisions expanding the constitutional "right to privacy" to protect individuals against excessive governmental reach into certain personal decisions in their lives. State equal rights amendments have been cited in several state court decisions e.
The U. Supreme Court in separate litigation Planned Parenthood v. State court decisions on abortion are not conclusive evidence of how federal courts would decide such cases. While some state courts have required Medicaid funding of medically necessary abortions, the U.
Recent Supreme Court decisions on reproductive rights e. Hobby Lobby Stores, Inc. If the documents are found to be in good order, the Director acknowledges receipt and maintains custody of them. The OFR retains these documents until an amendment is adopted or fails, and then transfers the records to the National Archives for preservation.
A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States 38 of 50 States. When the OFR verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution.
This certification is published in the Federal Register and U. Statutes at Large and serves as official notice to the Congress and to the Nation that the amendment process has been completed. In a few instances, States have sent official documents to NARA to record the rejection of an amendment or the rescission of a prior ratification. The Archivist does not make any substantive determinations as to the validity of State ratification actions, but it has been established that the Archivist's certification of the facial legal sufficiency of ratification documents is final and conclusive.
In recent history, the signing of the certification has become a ceremonial function attended by various dignitaries, which may include the President. Madison introduced 17 amendments to the Constitution born from the Massachusetts Compromise, of which Congress adopted twelve on September 25, , to send forth to the states for ratification.
Ten of those amendments, known as the Bill of Rights , were ratified on December 15, The Constitution was not ratified by all states until May 29, , when Rhode Island finally approved the document, and the Bill of Rights was not ratified to become part of the Constitution until the end of the following year. Moreover, the capital was not set until July 16, , almost a year and half after the general elections took place.
The location of the capital was born, like most decisions in the formation of the budding nation, out of negotiation. Hamilton, now Secretary of the Treasury, sought passage of the Funding Act so that the federal government could assume state Revolutionary War debts and thus endow the government with more economic power. In return, Hamilton would help Jefferson and Madison secure the votes needed to pass the Residence Act.
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