ERA, 28th Amendment Possibly Ratified, now part of constitution

[StateBoiler]

No previous constitutional amendment allowed states to rescind their ratifications, so why should an exception be made for the Equal Rights Amendment? 

...Incidentally, Idaho v. Freeman 529 F. Supp. 1107 (1981) found that both state rescission was valid and that Congressional deadline extension was invalid. SCOTUS first stayed, then declared moot that decision of the United States District Court for the District of Idaho because there were not yet enuf states that could be argued to have ratified the ERA for it to be a case properly before the courts. Still, I think there's little doubt that the current SCOTUS would rule in favor of allowing at least South Dakota's sunset provision to be valid. Since at present, that's all it would take to reduce the number of ratifications below thirty-eight, that might be as far as it rules.  In any event, I can't see SCOTUS addressing whether Congress can extend the ratification deadline of an amendment, and if so whether it can do so by a simple majority without first finding that States can't revoke ratifications of outstanding amendments.

To support True Federalist here, this is from the article I linked on the previous page in relation to this:

Between March 22, 1979, and the highly questionable “extended” deadline of June 30, 1982, no state legislatures added their approval of ERA. As a matter of fact—in a negative reaction to the alleged deadline “extension” to June 30, 1982—South Dakota lawmakers adopted a resolution on March 1, 1979, to clarify that, while not going quite so far as to rescind that state’s 1973 ERA ratification, nevertheless, that 1973 ratification would only remain valid for the next 21 days, which was the originally agreed upon deadline of March 22, 1979. From March 23, 1979, and moving forward, South Dakota’s approval of ERA—as far as South Dakota’s 1979 lawmakers were concerned—should be considered as having lapsed and understood to be sunsetted. This is a bit different from a rescission.

On December 23, 1981, Federal Judge Marion Callister ruled in Idaho v. Freeman that Congress was without authority to adjust a previously established ratification deadline and, further, that a state’s legislature indeed has authority to change its mind from “yes” to “no”—and to rescind a previous ratification—as long as that is done before the proposal receives the approval of the necessary 38th state.

On January 25, 1982, the Supreme Court “stayed” the Idaho v. Freeman ruling, which did not reverse the lower court’s conclusions and holdings—nor negate Judge Callister’s findings on any of the case’s merits—but merely suspended Idaho v. Freeman from having any effect, in an apparent effort to allow state legislatures in session during the first half of 1982 an opportunity to continue pondering ERA by the “extended” deadline of June 30, 1982.

As the tail end of June is typically the same time that the Supreme Court departs Washington, D.C. for about three months of annual hiatus, the justices made themselves unavailable to more extensively review Idaho v. Freeman until their 90-day sabbatical ended and they returned to work on October 4, 1982; at this time—given that the disputed June 30, 1982, ERA “extended” ratification deadline had already come and gone—the high court took the easy way out and simply ruled that the entire controversy was moot by that point, thus skirting any need to address the core issues raised by the district court in Idaho v. Freeman.

[Frodo]

Justice Ruth Bader Ginsburg is advising Equal Rights Amendment supporters to start over from scratch:

Ginsburg: Equal Rights Amendment backers should start over

In which case, there should be no arbitrary deadlines this time around.  

[StateBoiler]

Justice Ruth Bader Ginsburg is advising Equal Rights Amendment supporters to start over from scratch:

Ginsburg: Equal Rights Amendment backers should start over

Yeah. Pandaguineapig on January 15th on page 1 stated this.

[brucejoel99]

Justice Ruth Bader Ginsburg is advising Equal Rights Amendment supporters to start over from scratch:

Ginsburg: Equal Rights Amendment backers should start over

In which case, there should be no arbitrary deadlines this time around.  

Now, more than ever, it's pretty clear that the case to get it ratified will no longer be going anywhere.

[fhtagn]

Justice Ruth Bader Ginsburg is advising Equal Rights Amendment supporters to start over from scratch:

Ginsburg: Equal Rights Amendment backers should start over

In which case, there should be no arbitrary deadlines this time around.  

She's been saying this for a while now. The idiots pushing for meaningless "ratification" simply ignored it.

[StateBoiler]

Frankly I hope people still try and push this in court, just for the Supreme Court can rule on amendment timelines and/or recissions.

[Mr. Reactionary]

Justice Ruth Bader Ginsburg is advising Equal Rights Amendment supporters to start over from scratch:

Ginsburg: Equal Rights Amendment backers should start over

In which case, there should be no arbitrary deadlines this time around.  

She's been saying this for a while now. The idiots pushing for meaningless "ratification" simply ignored it.

its not about them being legally correct, its about them claiming some sort of moral superiority to virtue signal to the nuts.

[Attorney General, LGC Speaker, and Former PPT Dwarven Dragon]

The House has voted to abolish the deadline, 232-183: http://clerk.house.gov/evs/2020/roll070.xml


Five Republicans: Curtis (?), Fitzpatrick, Rodney Davis, Reed, and Van Drew joined all Democrats Present in passing this.

[MarkD]

The House has voted to abolish the deadline, 232-183: http://clerk.house.gov/evs/2020/roll070.xml


Five Republicans: Curtis (?), Fitzpatrick, Rodney Davis, Reed, and Van Drew joined all Democrats Present in passing this.

Nowhere near the two-thirds margin; they didn't pass an abolishment of the deadline. Amendments have to be proposed by a two-thirds margin; you can't tinker with the proposal afterwards by a simple majority.

[Attorney General, LGC Speaker, and Former PPT Dwarven Dragon]

The House has voted to abolish the deadline, 232-183: http://clerk.house.gov/evs/2020/roll070.xml


Five Republicans: Curtis (?), Fitzpatrick, Rodney Davis, Reed, and Van Drew joined all Democrats Present in passing this.

Nowhere near the two-thirds margin; they didn't pass an abolishment of the deadline. Amendments have to be proposed by a two-thirds margin; you can't tinker with the proposal afterwards by a simple majority.

See https://www.congress.gov/bill/116th-congress/house-resolution/842

[True Federalist (진정한 연방 주의자)]

The House has voted to abolish the deadline, 232-183: http://clerk.house.gov/evs/2020/roll070.xml


Five Republicans: Curtis (?), Fitzpatrick, Rodney Davis, Reed, and Van Drew joined all Democrats Present in passing this.

Nowhere near the two-thirds margin; they didn't pass an abolishment of the deadline. Amendments have to be proposed by a two-thirds margin; you can't tinker with the proposal afterwards by a simple majority.

The original 1978 extension was not passed by a supermajority either. Whether that is enuf or even if any extension can be made is unresolved. It's not as if the time limit was part of the text of the amendment, so at least a case can be made for the possibility of a simple majority sufficing.

[Orser67]

I'm a big supporter of the ERA, but I strongly agree with RBG that a fresh start would be best.

[MarkD]

Wulfric and Ernest:

Whatta cockamamie way to run a government! Even though it is clear that when we propose a constitutional amendment, we have to propose it with a two-third majority in both chambers, we will "consider" ourselves capable of subsequently tinkering with the proposed amendment by simple majorities if we want to, for example, extend the deadline for ratification. As far as I'm concerned, no they can't! As far as I'm concerned, the ERA is dead as a doornail.

So I have included a mini-ERA in my proposal for rewriting the 14th Amendment. although I have explicitly written my proposal to state that it does not authorize the federal government to treat abortion rights as protected by the ERA clause within the proposal.

Remember that is a major reason why so many states have refused to ratify the ERA and some even subsequently rescinded their ratification: because those states oppose abortion and they fear that the ERA will effectively codify Roe v. Wade into the Constitution.

[Mr. Reactionary]

Wulfric and Ernest:

Whatta cockamamie way to run a government! Even though it is clear that when we propose a constitutional amendment, we have to propose it with a two-third majority in both chambers, we will "consider" ourselves capable of subsequently tinkering with the proposed amendment by simple majorities if we want to, for example, extend the deadline for ratification. As far as I'm concerned, no they can't! As far as I'm concerned, the ERA is dead as a doornail.

So I have included a mini-ERA in my proposal for rewriting the 14th Amendment. although I have explicitly written my proposal to state that it does not authorize the federal government to treat abortion rights as protected by the ERA clause within the proposal.

Remember that is a major reason why so many states have refused to ratify the ERA and some even subsequently rescinded their ratification: because those states oppose abortion and they fear that the ERA will effectively codify Roe v. Wade into the Constitution.

The funny thing is, if we accept the new nomenclature and demands from woke culture about transpeople, then a transman really is just a man, and therefore can get pregnant and have abortions, therefore abortion restrictions applied equally to women and transmen do not discriminate on sex and the ERA abortion argument is neutered (pun not intended).

[True Federalist (진정한 연방 주의자)]

Wulfric and Ernest:

Whatta cockamamie way to run a government! Even though it is clear that when we propose a constitutional amendment, we have to propose it with a two-third majority in both chambers, we will "consider" ourselves capable of subsequently tinkering with the proposed amendment by simple majorities if we want to, for example, extend the deadline for ratification. As far as I'm concerned, no they can't! As far as I'm concerned, the ERA is dead as a doornail.

I personally agree with you that the current push is the wrong way to add the ERA to the Constitution, but I'm not presuming my interpretation will prevail.

[StateBoiler]

From the March 2020 Newsletter of the State Legislators' Article V Caucus

Could the ERA Movement Impact the BBA Effort? –

On February 11 Josh Blackman of The Volokh Conspiracy talked about current efforts to put the Equal Rights Amendment (ERA) in the Constitution and postulated, “If states cannot rescind their ratification proposals, then 2/3 of the states may have already voted to call an Article V Constitutional Convention for the Balanced Budget Amendment.”
 
 There are a couple of court cases currently being litigated about the ERA proposal.  Blackman notes that among other things, representatives of the state of Virginia argue “that states cannot rescind their ratifications of the Equal Rights Amendment.  If Virginia is correct, and ratifications cannot be rescinded, then we may be standing on the precipice of an Article V constitutional convention” because “[a]ccording to the Balanced Budget Amendment Task Force, 28 states have passed resolutions calling for an Article V convention to propose a balanced budget amendment,” and “several states that voted to call for [a BBA-focused] convention subsequently repealed their resolutions.”
 
If, as Virginia argues, states cannot rescind their prior Article V ratifications, the BBA movement has well more than the 34 states needed.  Stay tuned.  Read Blackman’s piece HERE. https://reason.com/2020/02/11/the-ratification-of-the-equal-rights-amendment-could-lead-to-an-article-v-constitutional-convention/
 
 Meanwhile the “staleness” of the ERA ratification process is a separate legal question.  Many constitutional scholars believe the 1972 Congressional proposal of the ERA expired in 1979 based on its wording. 

[StateBoiler]

https://www.cnn.com/2021/03/06/politics/equal-rights-amendment-virginia-lawsuit/index.html

(CNN)A federal district judge on Friday dealt a blow to advocates of the Equal Rights Amendment in ruling that the deadline to ratify the ERA "expired long ago" and three states' recent ratifications of the amendment arrived "too late to count."

Virginia, Illinois and Nevada had sued the archivist of the United States last year to "carry out his statutory duty" of publishing and certifying the ERA as the 28th Amendment to the Constitution. The ERA stands as a century-long dream for many women and activists as it would ban discrimination on the basis of sex and guarantee equality for women under the Constitution.

The three states had recently ratified the ERA, with Virginia claiming to be the 38th state -- and final state -- to ratify the amendment in 2020.

In their complaint, the three states' Democratic attorneys general argued that Congress' imposed deadline to ratify the ERA has not lapsed, because the time frame is not included in the amendment's body text. They also argued that the Constitution doesn't give Congress the power to dictate when a state ratifies an amendment and that a state's ratification is "a one-time event."

1. To the bolded, good to know they read me here.
2. The second point is clearly that rescission is meaningless, but also was South Dakota's sunset provision.

Seriously, this argument was pretty much written in this thread. Our legal advice was free while state lawyers cost Illinois, Virginia, and Nevada a pretty penny.

In his opinion Friday, Judge Rudolph Contreras in Washington, DC, wrote that a "ratification deadline in a proposing resolution's introduction is just as effective as one in the text of a proposed amendment."

"Plaintiffs' ratifications came after both the original and extended deadlines that Congress attached to the ERA, so the Archivist is not bound to record them as valid," he concluded.

The judge dismissed the case, also writing that the plaintiffs "lack standing to sue" because the archivist's "refusal to publish and certify the ERA thus does not cause them a concrete injury that could be remedied by ordering him to act."

Attorney General of Virginia says they are considering all actions, including appeal.

[(no subject)]

RBG rightly pointed out that it's OK to change your mind on ratification but progressives refuse to accept that.

[StateBoiler]

From the Article V Convention monthly newsletter I get. It covers the ruling a couple posts above but also contains the news that the North Dakota legislature passed a resolution on March 19th notifying Congress that its ratification in 1975 lapsed at 11:59pm on March 22nd, 1979. There was also a Boston Herald opinion piece written by Wendy Murphy that "derided Biden by not placing a simple phone call to the archivist" and publishing the ERA and "Biden refuses to act".

[Frodo]

The fight isn't over yet:

Democratic AGs, including Virginia’s Mark Herring, continue fight seeking recognition of ERA

If this were brought before the Supreme Court (now that Justice Ruth Bader Ginsburg has been replaced by Amy Coney Barrett), how does everyone expect them to rule?  Will it be an overwhelming rejection of their case, thereby forcing Equal Rights Amendment proponents to start over?  

[GM Team Member and Senator WB]

The fight isn't over yet:

Democratic AGs, including Virginia’s Mark Herring, continue fight seeking recognition of ERA

If this were brought before the Supreme Court (now that Justice Ruth Bader Ginsburg has been replaced by Amy Coney Barrett), how does everyone expect them to rule?  Will it be an overwhelming rejection of their case, thereby forcing Equal Rights Amendment proponents to start over?  

I don't think it would even get heard, probably on the grounds that the issue was settled in NOW v Idaho, or something like that.

[Mr. Reactionary]

The fight isn't over yet:

Democratic AGs, including Virginia’s Mark Herring, continue fight seeking recognition of ERA

If this were brought before the Supreme Court (now that Justice Ruth Bader Ginsburg has been replaced by Amy Coney Barrett), how does everyone expect them to rule?  Will it be an overwhelming rejection of their case, thereby forcing Equal Rights Amendment proponents to start over?  

I don't think it would even get heard, probably on the grounds that the issue was settled in NOW v Idaho, or something like that.

Yeah. This would never make it off the shadow docket especially when Virginia withdraws from this frivolous lawsuit in 2 weeks. A SCOTUS opinion gives this nonsense more attention that warranted.

[brucejoel99]

The fight isn't over yet:

Democratic AGs, including Virginia’s Mark Herring, continue fight seeking recognition of ERA

If this were brought before the Supreme Court (now that Justice Ruth Bader Ginsburg has been replaced by Amy Coney Barrett), how does everyone expect them to rule?  Will it be an overwhelming rejection of their case, thereby forcing Equal Rights Amendment proponents to start over?  

I don't think it would even get heard, probably on the grounds that the issue was settled in NOW v Idaho, or something like that.

Yeah. This would never make it off the shadow docket especially when Virginia withdraws from this frivolous lawsuit in 2 weeks. A SCOTUS opinion gives this nonsense more attention that warranted.

Given the current composition of the Court, this suit would obviously never go the plaintiff's way even if VA weren't about to swear its new Republican trifecta in, but to clarify, VA's presumed withdrawal from the suit in 2 weeks' time won't automatically render the suit null-&-void, given its rescission arguments & the likelihood that IL & NV move to sustain it.

[StateBoiler]

We're past the 2-year timeline. Considering the only reason the civil court system exists in this country anymore is for big organizations to game them as a bypass around the legislature to create law, has any individual funded by a big organization sued someone else yet?

[Frodo]

Given Equal Rights Amendment advocates have to start over from scratch, then whatever replaces it should be quite different and more expansive, as the LGBTQ community will be demanding that they too be included in it (and rightfully so) -and not just women.  So instead of the current wording:

"ARTICLE —

"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.

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

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

Section 1 could instead be worded like this (best to keep it simple):

ARTICLE -

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, gender, or sexual orientation."

The other two sections would remain unchanged.  And this time, no arbitrary deadlines.