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Attorney General Steve Marshall joined attorneys general from Louisiana and South Dakota in sending a letter to President Joe Biden and the Archivist of the United States Colleen Shogan, asking them not to certify and publish the Equal Rights Amendment in the Constitution as the 28th Amendment.
The ERA was first proposed in 1972, to ensure gender equality and enshrine reproductive rights in the Constitution. Congress set a ratification date for seven years later and added a three year extension which garnered no additional ratifications until it finally lapsed without the necessary 38 states to ratify.
It’s momentum slowed until a few years ago at the height of the #MeToo movement and when record numbers of women were elected to serve as lawmakers. Since then, interest in ERA has increased and it’s become a top priority for advocacy groups and legislators alike.
Marshall points out that the ratification timeline has since passed and that an agreement between the Archivist and the states signed to the letter prevents the ERA from being certified without a court order from the Department of Justice.
“First, multiple courts and every judge to consider the issue have rejected the preposterous notion that the ERA did not expire decades ago. Second, the Archivist entered a legally binding agreement with our States in exchange for termination of litigation over whether the Archivist has authority to certify the ERA. That agreement precludes her (barring a court order) from certifying the ERA until at least 45 days elapse following an announcement from the United States Department of Justice that the ERA should be certified,” the letter reads.
In 2020, the Justice Department’s Office of Legal Counsel released an opinion stating that the deadline set by Congress for the ERA is final, and the ERA is no longer being considered by the states. This opinion disagrees with a 1977 OLC opinion that had supported an earlier extension of the deadline. In response, the National Archives said that the U.S. Archivist will not add the ERA to the Constitution unless a federal court orders them to do so.
“In the event that the Department of Justice ever concludes that the 1972 ERA Resolution is still pending and that the Archivist therefore has authority to certify the ERA’s adoption under 1 U.S.C. § 106b, the Archivist will make no certification concerning ratification of the ERA until at least 45 days following the announcement of the Department of Justice’s conclusion, absent a court order compelling him to do so sooner,” the letter reads.
