ERA hope diminishes as Trump administration blocks ratification

With the flip of Virginia from red to blue in November, activists had hope that after nearly 100 years of debate, the Equal Rights Amendment may finally be ratified. The state’s vote would be the 38th, and final, vote required for an addition to the Constitution. But an opinion issued Wednesday from the Justice Department's Office of Legal Counsel may have scuttled the effort, killing the ratification’s chances for the umpteenth time.

In 1972, the ERA passed both houses of Congress, needing ratification by just 38 states to come into law. Congress at that point had imposed a seven-year deadline on the passage. Now, the OLC is saying that—in contravention to its own 1977 opinion that allowed Congress to extend such a time limit—the arbitrary deadline holds. Aka, any state that did not ratify the amendment by 1979 doesn’t count. In 2013, however, a report by the Congressional Research Service, a policy research branch, said Congress “could simply vote to change the old deadline,” according to The New York Times.

“OLC’s opinion doesn't directly affect the litigation, but unless it is overruled by the attorney general or the president, it likely will bind the archivist—meaning that the only way a new ratification by a state like Virginia would likely be effective is if the courts say so,” Stephen Vladeck, a CNN legal analyst and professor at the University of Texas School of Law, told CNN. “This opinion suggests that, from the executive branch’s perspective, the matter is closed.”

First introduced by activist Alice Paul in the wake of the 1920 passage of the 19th amendment, which gave women the right to vote, the ERA has been through Congress many times and, while it has repeatedly failed, there has long been widespread public support for the measure. The ERA Coalition’s polling shows that as of 2016, 94 percent of Americans supported the ERA.

The coalition said Thursday that it “strongly disagrees with the Office of Legal Counsel’s opinion that the time limit on ERA ratification cannot be removed. We call on Congress to redouble its efforts to remove the time limit and we call on all remaining 13 states to ratify the ERA … . This OLC opinion is not binding on Congress, the courts, or the states that have expressed their ongoing will to give women constitutional equality.”

While certain protective federal and state laws for women do exist, they can be rolled back at any time, unlike a constitutional amendment. The ERA’s main clause reads: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on the account of sex.” Detractors say the amendment would lead to things like gender-neutral bathrooms, same-sex marriage, and women in combat.