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Judge rules states were too late in ratifying Equal Rights Amendment

A federal judge ruled Friday that a number of states that voted to ratify the Equal Rights Amendment (ERA) in recent years were too late in their approval for it to be added to the Constitution.

The ruling from U.S. District Judge Rudolph Contreras in Washington, D.C., was a defeat for Illinois, Nevada and Virginia, which had lobbied the court to declare that the amendment should be added after Virginia became the 38th state to ratify it in 2020.

The three states sued in January 2020 to argue that Congress had no right to establish a 1982 ratification deadline for the ERA, but Contreras upheld the deadline.

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“[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,” Contreras ruled.

The states have the option to appeal the ruling, and the issue could end up at the Supreme Court.

Friday's ruling is a blow to ERA proponents who had expressed optimism that the amendment would finally be added after Virginia’s vote last year. Amendments must get the support of three-fourths of the nation’s 50 states to be added to the Constitution.

The ERA would add language to the Constitution ensuring that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” It would also grant Congress the power to enforce the amendment.

The amendment was originally proposed in 1972 and passed both chambers of Congress with broad margins. Congress at the time said the ERA would be formally added when 38 states ratified it "within seven years from the date of submission by the Congress." That deadline was extended, but only to 1982. 

Contreras maintained his ruling was not a judgement of the ERA’s language, but “merely enforces a procedural time limit that Congress set when proposing the amendment.”

A slew of liberal groups and Democratic attorneys general supported the ERA’s addition, but the Justice Department under the Trump administration issued an opinion in January 2020 saying the ERA is no longer legally pending before the states because the congressional deadline had passed.