Equal Rights for Women: Will the Supreme Court Honor RBG with the 28th Amendment?

Women do not have equal rights in the United States, although Justice Ruth Bader Ginsburg moved us much further towards that goal both before and while she was on the Supreme Court. She affirmed this year that we still need the Equal Rights Amendment, known as the ERA. 78% of Americans, including a majority of men and women, support adding the ERA to the U.S. Constitution, according to a 2020 Pew poll of 3,143 U.S. adults.

For over two centuries, women have been fighting to be treated equally under the law. Women have only had the right to vote for 100 years. The ERA was first proposed in 1923. Half a century later, in 1972, Congress finally sent it out to the states, at the dawn of the second women’s movement.

Now, because of a landmark case pending in the Supreme Court, women are closer to having equal rights than ever before. The case was brought by women and girls, Equal Means Equal, The Yellow Roses, and Katherine Weitbrecht versus David S. Ferriero, Archivist of the United States, to force the Archivist to publish the ERA in the Constitution as the 28th Amendment. Equal Means Equal’s attorney, Professor Wendy J. Murphy, Director of New England Law’s Women’s and Children’s Advocacy Project, wrote the request, called a Petition for a Writ of Certiorari.

The Supreme Court will decide on October 9, 2020, in conference, if it will include this historic case among the few it agrees to hear this year. Only four votes are needed, so it’s possible they will take the case. If they do, I believe that it will be a case that could bring a united result because much of it hinges on the interpretation methods of the conservative Justices on the Supreme Court: considering the original purpose of the Framers of the Constitution and the textual meanings of Article V, the 10th Amendment, 1 U.S.C §106(b), and the text of the ERA itself. In my opinion, this ERA case will be the most important case the Supreme Court has decided since Brown v. Board of Education, which desegregated public schools.

One of the chief reasons the Supreme Court agrees to hear a case is if it is of great importance to many people. The ERA will affect more than half the population directly and the entire country at least indirectly. It is critical for so many reasons, from equal pay to protecting women from violence.

If you want the Supreme Court to accept the ERA case, get your ERA signs out! MARCH on October 8, 2020 at 6pm in your cities. Spread the word. Amplify your voice on social and other media about this case and why the ERA is critical to the equality of women. Join Equal Means Equal’s Virtual ERA Vigil on and leading up to October 8th (5pm EST/8pm PST).

How did the ERA arrive at the Supreme Court? Article V of the Constitution gives Congress and the States the power together to add Amendments to the Constitution. First, Congress proposes the language of the Amendment. The text of the ERA says, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

Then, 3/4 of the states (38 of our 50 states) must ratify (approve of) the Amendment. The date that the 38th state ratifies the proposed amendment, it automatically becomes an Amendment to the Constitution. The law says that the Archivist shall then publish the Amendment in the Constitution. By law, the Archivist does not have any authority to choose not to publish it.

In 2012, Ferriero said he would publish the ERA once 38 states ratified it, which led to a renewed arduous push to get the last three states. However, when it appeared likely that Virginia would be the 38th state, in January, 2020, Attorney General Bill Barr’s Office of Legal Counsel told the Archivist that he was not allowed to publish the ERA. The purported reason was Congress’ seven-year deadline for ratification – but that deadline was only in the preamble to the ERA, not in the text itself. So, Equal Means Equal, et al. sued the Archivist.

The last three states that ratified the ERA – Nevada, Illinois, and Virginia – also sued the Archivist, in the District of Columbia District Court (“DC case”), asking the court to order the Archivist to publish the ERA. They argue, just like Equal Means Equal (“EME”), that the deadline was an unconstitutional violation of Article V, which does not give Congress the authority to set a deadline. EME also asserts the deadline was an unconstitutional violation of states’ rights protected by the 10th Amendment. Both cases argue that the ERA became the 28th Amendment at the moment Virginia, the 38th state, ratified it on January 27th of this year. If the EME case is accepted, once the DC case gets to the Supreme Court, it will likely be joined with it.

Supporters of women’s equality have been fighting almost 100 years for the addition of the ERA to the Constitution. The Notorious RBG persevered; like a superhero, through illness and adversity, she kept fighting for us. The least we, and the Supreme Court, can do is make her “dreams of equal citizenship” a reality, now – not after another century when our great-granddaughters could still be waging this battle.

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Arlaine Rockey is a national attorney and the screenwriter of the coming biopic, Elizabeth Cady Stanton: The First Suffragist. Ms. Rockey is writing an Amici Curiae Brief for the EME case, on behalf of over 80 amici (friends of the Court), with her sister, attorney Gina Collias, and national attorney Pamela Parker. Equal Means Equal’s Founder and President, Kamala Lopez, was also the Director and Producer of the engaging ERA documentary, Equal Means Equal, available on streaming services, including Amazon Prime. You can find them on Twitter at @RockeyLaw, @Collias4NC11, @PamelaParker13, and @EqualMeansEqual, respectively.

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By Arlaine Rockey ©2020

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