86 Amici Curaie file Brief in First Circuit Court of Appeals in #ERANow Case
Women have been fighting to be equal citizens under the laws that govern the United States for 244 years. The supreme law of the land is the U.S. Constitution. Our Founders, with obvious humility, wisdom and forethought included a way to allow the Constitution to be amended in Article V:
”The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress….”
The power to create new Amendments was thereby given to both the federal government and to the states. The interrelated governing power created by the Constitution is called Federalism. You may have heard of The Federalist Society. It is an ultraconservative group of lawyers that places the highest value in interpreting the Constitution with the original meaning of the Founders, which can be mostly determined by the Federalist Papers that were written to memorialize the intent of the Framers, our Founding Fathers, who drafted and compromised about the writing of the Constitution.
You may be aware that all of the hundreds of federal lifetime appointments of judges by Trump have been those requested by The Federalist Society, including Trump’s 3 Supreme Court Justices. Just like Justice Scalia was and Justice Alito is, these three are “originalists” and texturalists, which means they think the words of the Constitution and laws mean what they say. That can lead to some interesting results. For example, a Trump appointee, Justice Gorsuch, used texturalism to decide that LGBT people are protected by Title VII, which protects people from discrimination in employment “because of sex.” You can read the Bostock case here if you want to see how using convoluted conservative texturalist reasoning, can actually reach a result that is socially liberal, and upset many social conservatives.
The reason I’m explaining this is because, if and when the validity of the #ERA is finally heard in the Supreme Court, the ERA could be validated by an unanimous Supreme Court (the 5 solid originalists and the 4 others concurring in the result but possibly using different reasoning to reach it) because of Equal Means Equal’s (#EME’s) legal arguments: 1) why the ERA became the 28th Amendment on 1/27/20, when Virginia became the 38th state, the last necessary state to to ratify the ERA (the last of 3/4 of the states required by Article V above), and 2) why the deadline imposed by Congress in the Preamble of the ERA, not in the the actual language of the proposed amendment, is an unconstitutional nullity (of no effect from the beginning) because: A) Article V does not grant Congress the right to impose deadlines, only to propose amendments (the actual language of the amendment & the “mode” of ratification, i.e., whether 3/4 of the states must ratify or call for state constitutional conventions); and B) since the power to set a time limit to ratify is not delegated to Congress in Article V, the time it takes to ratify is left to the power of the states, under the 10th Amendment (you may have heard of “states’ rights” — that’s based upon the 10th Amendment).
The purpose of Amici Curiae (Friends of the Court) briefs is to offer up additional legal theories or to give context to the decision at hand. This brief did the former, offering an additional legal theory for “injury in fact” (an element of standing, the power of a Plaintiff to sue, which is necessary for jurisdiction, the power of the Court to hear the case). It also did the latter by putting the case in historical context, by reviewing the history of women’s fight for equal rights over the last 244 years; in political context, showing how women cannot achieve political parity, not holding a percentage of seats in government (Congress and state legislatures) that is equivalent to women’s 50% of the population without the ERA, as women hold only about 25% of the seats even after 244 years; and in social context, showing how women’s parity in wealth creation is deeply limited by institutionalized sexism, including by being held back in professions, by unequal pay, by being relegated to types of jobs that are lower paying, and by not getting adequate education (eg. in STEM). (Institutionalized sexism also causes and perpetuates violence against women and girls but #EME’s brief covers that issue).
The EME #ERANow case is in the First Circuit Court of Appeals now. EME’s brief is linked in an earlier blog post below. The Amici Curiae Brief was filed on 12/10/20. You can read it here. You can see the list of the 86 impressive Amici Curiae in the Brief’s Appendix.
Even though this case is ongoing, EME also has a #PublishERA social media campaign, urging President-elect Biden to just direct the Archivist to publish the ERA as the #28thAmd by 1/27/21(the one-year anniversary of the ratification of the ERA). Please join this social media campaign by making your own short video asking President-elect Biden to #LegalizeEquality. See my previous blog post for how to join this movement.
