Why We Need the ERA!

The ERA would end women’s second-class citizenship by finally giving women equal standing in the federal CONSTITUTION, thus would ensure women’s equal TREATMENT under all laws, regulations, and policies of state and federal governments.

The ERA would afford women equal treatment under the DUE PROCESS CLAUSE and the EQUAL PROTECTION CLAUSE, which affect all other rights including everything from obtaining a dog license to the First Amendment, LIBERTY, etc. These fundamental constitutional rights ensure that all people enjoy the most basic freedoms: autonomy, self-determination, authority over the self,  bodily integrity, etc. Without the ERA, women cannot be assured that any rights will apply equally to them.

The ERA would require courts to use strict scrutiny when reviewing claims involving different treatment of women. Without the ERA, courts are allowed to use only intermediate scrutiny, which, unlike strict scrutiny, permits infringements on rights.

The ERA would protect abortion rights and literally save women’s lives by making it clear in the text of the Constitution, for the first time in history, that women are fully equal persons who can no longer be subjected to unequal treatment under any laws, including abortion laws.

The ERA would allow us to fight and reverse any sex discriminatory state or federal law, regulation or policy. The ERA specifically states that the Congress may pass legislation to enforce the ERA, which would mean Civil Rights laws would be amended to ensure women’s equal legal stature. Without the ERA women do not enjoy equal treatment under civil rights laws. For example, aside from employment, women are excluded from Title VI of the Civil Rights Act of 1964. ERA would fix this

Under the ERA and strict scrutiny, women would still enjoy separate spaces and sex-based preferences that serve a compelling state interest, such as a need to address a history of discrimination.

The ERA would allow women to sue the government for unequal enforcement of rape and domestic violence laws, bias against women in family court, and courts enforcing laws requiring equal pay for women would have to construe the word equal to mean actually equal. Without the ERA courts can interpret laws requiring equal treatment to mean something less than fully equal. The ERA would enable women to assert stronger legal arguments against the commodification of women by surrogacy, pornography, prostitution, and sex trafficking.  

According to Wendy Murphy, attorney for Equal Means Equal, “The ERA is more desperately needed in 2022 than ever before because of Dobbs” (the decision that overturned Roe). “Women’s pervasive status as second-class citizens enabled the Supreme Court to cavalierly take away all personhood rights of pregnant women. Women are literally the lifeblood of this nation, yet they are vulnerable to dystopian court rulings solely because they lack basic equality in the Constitution. The only solution is to fix the Constitution. The ERA does that.”

The ERA was ratified by the 38th state in January of 2020 and is now the law of the land, but, just like the Trump Administration, the Biden Administration is blocking the ERA from being published in the Constitution. Biden is also fighting against the ERA in federal court the same way Trump did.    #PublishERANow!

Four lawsuits are currently pending in NY, MI, RI and DC that seek to validate the ERA. The DC case is scheduled for oral arguments at:

DC Circuit Court of Appeals on September 28th.

WHAT YOU CAN DO: 

  • Come to DC and help us protest Joe Biden’s opposition to Women’s equality. WE DEMAND EQUALITY NOW!!
  • Call/text the White House Comment Line: 800-456-1111
  • Tweet #PublishERANow!  @SCOTUS and @JoeBiden
  • Call your Senators and urge them to demand Biden publish the ERA!!

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WE DEMAND NOTHING LESS THAN FULL EQUALITY AND ABORTION ON DEMAND, NO APOLOGIES!!

Well, we knew this was coming.  The wrongheaded, misogynist decision by the highest court today to overturn Roe v. Wade was expected, but still is a brutal blow to the basic human rights of half the population.  Such a blatant attempt to restrict women’s autonomy, agency, and freedom could only be accomplished in a system devoted to the institution of patriarchy and promotion of male supremacy.  The court showed its callous disregard for the suffering and brutalization of women and girls in its 6-3 decision to upend 50 years of precedent, ending an ugly week of attacking the separation of church and state, elevating gun rights over human rights and public safety, with the disastrous decision to dismantle Roe.  As one female abortion protester’s sign read, “Guns have more rights than I do.”  As do churches, one might add.

Apparently the current Supreme Court thinks it knows best and is above the law, but it is in error.  This court is an illegitimate travesty of injustice by any rational person’s standard, completely out of touch with the majority of the populace who want legal, safe abortion, more gun control (not less), and which is increasingly secular. It is time that we consider imposing strict standards of conduct, eliminate lifetime appointments, expand the number of justices, institute citizen oversight and input into the selection process, and facilitate and streamline impeachment procedures in order to be able to recall justices who defy the Constitution, disregard decades of legal precedent, and substitute spiteful partisanship and sanctimonious religiosity for fairness.

It’s past time that we women stand up and seize our rightful place of honor and respect, and that we demand full citizenship by inclusion in the founding document of this nation, the Constitution, that we have earned as the Equal Rights Amendment has been ratified and is now law.  All that’s needed is for the Biden Administration to stop giving lip service to women’s rights, get off their collective derriere and publish the ERA!  Legislation is needed to protect women’s reproductive rights as well, but with the ERA in the Constitution, we can adjudicate all the unfair laws at the local, state, and federal level, including abortion restrictions, and we are on much firmer ground than with only legislation.

One good thing about this ruling, it has stirred the sleeping Tiger that is WOMAN, and WE WON’T GO BACK, WE WON’T GROVEL, WE WON’T ASK PERMISSION, WE DEMAND NOTHING LESS THAN FULL EQUALITY AND ABORTION ON DEMAND, NO APOLOGIES!!

Women’s Rights Under Attack: Fighting Back–The ERA and the Women’s Bill of Rights

Please join Feminists in Struggle and the Green Alliance for Sex-Based Rights in a joint presentation, Women’s Rights Under Attack: Fighting Back on June 18th at 10 a.m. PDT to explore how to effectively fight back against the multiple incursions on the rights of women, focused on the Equal Rights Amendment and the Women’s Bill of RightsEqual Means Equal‘s Wendy Murphy and FIST’s Ann Menasche will be presenting.  Register here.

War, Peace, and Feminism

During World War I, Alice Paul and her sister suffragists called out the hypocrisy of President Wilson and the US government in denying the rights of women at home while claiming to be fighting a war for freedom and democracy abroad. 


So little has changed. President Biden is beating the drums of war, proposes an unprecedented $770 billion dollar military budget, and risks nuclear confrontation between the great powers, all in the name of “freedom” and “democracy.” Meanwhile, women in the U.S., who make up a majority of the poor, are denied housing, health care, equal pay, and accessible, affordable childcare. Even the pandemic-related child tax credit program that provided government relief to low-income families has been allowed to expire. We are poised to lose Roe vs. Wade, which will have a devastating effect on women’s freedoms with little action from the White House.


Biden has also failed to take the simple step of instructing the archivist to publish the Equal Rights Amendment already approved by the requisite 38 States, which would put women’s sex-based protections into the Constitution. His administration is thus undemocratically depriving us of a crucial tool to challenge our continued second-class status as a sex.


Those who are familiar with the history of U.S. wars abroad over the past century, have long known that U.S. foreign policy has everything to do with oil and empire and not a scintilla to do with democracy. Our military-industrial complex is a destructive money-making machine; it is the epitome of patriarchy in action, fighting to maintain status as the biggest bully on the block with no regard for human beings or their rights. Our government has repeatedly spearheaded the overthrow of democratically elected governments from Chile to Guatemala to Iran, rained untold destruction on Vietnam to prevent the people there from determining their own future, and currently counts as its closest allies (and arms to the teeth) the military dictatorship of Egypt, the religious fundamentalist sexual apartheid Kingdom of Saudi Arabia, and the ethnic apartheid regime of Israel. The decades-long occupation of Afghanistan not only failed to liberate the women there from the Taliban, but instead murdered 71,000 civilians, mostly women and children, and after the U.S. finally withdrew its troops, the imposition of murderous sanctions is now threatening the civilian population with mass starvation.


We must call out this hypocrisy today loudly and clearly, just as Alice Paul did more than a century ago.  Fortunately, women around the globe are recognizing that war is not in our interests. Medea Benjamin of the women-led organization Code Pink, long a voice of the U.S. peace movement, has been speaking out against the threat of war with Russia over Ukraine, as well as demanding diplomacy and an end to NATO expansion.


On February 15th a group of women from the United States and Russia released a joint statement, “Independent American and Russian Women Call For Peace” raising their voices against militarism and war and calling for diplomacy and peace. They wrote:
“We are women from the United States and Russia who are deeply concerned about the risk of possible war between our two countries, who together possess over 90 percent of the world’s nuclear weapons. We are mothers, daughters, grandmothers, and we are sisters, one to another. Today we stand with our sisters in Ukraine, East and West, whose families and country have been torn apart, have already suffered more than 14,000 deaths…For the U.S. and Russia, the only sane and humane course of action now is a principled commitment to clear, creative and persistent diplomacy – not military action…We stand together and we call for peace. Stand with us.” 


Thank you, sisters!

Happy New Year to All Gender Critical People Everywhere!

Here we are on the brink of a New Year and though worries abound, it is good to reflect on some of the year’s accomplishments, one of the main ones being gender critical people waking up around the globe and daring to come out publicly.  We want to acknowledge GenderCriticalComingOutDay, a hashtag that trended on Twitter, and encourage anyone who can safely do so to join the chorus of tweets! While you’re on Twitter, follow us @feministstruggl.

To all the good actions outlined at the Gender Critical Coming Out Day website, we wish to add calling and writing in to news networks who push gender ideology and let them know you do not agree and that you want them to cover the other side of the story–the detransitioners, the desisters, the girls and women denied their athletic achievements by transgender athletes, the women and girls harmed by the invasion of safe spaces, all the ways in which women and girls are being erased and our rights denied by this dangerous ideology.

We need to arm ourselves for the fight in the New Year by continuing to fight for our sex-based rights by pressuring the Biden Administration to publish the Equal Rights Amendment and legislation to ensure that abortion remains safe and legal, and that WOMEN are acknowledged as the only people who get pregnant.

Please join us for our upcoming educational series and Feminist Forums!

Merry Yuletide and Winter Solstice All,

Feminists in Struggle

A WOMAN’S RIGHT TO SAFE, ACCESSIBLE ABORTION ON DEMAND

While our Afghani sisters face an uncertain future under Taliban rule, we women in the United States have our own Christian fundamentalist version of the Taliban with which to contend. The goals are the same – to keep women barefoot, pregnant and locked in our houses, under the unquestioned rule of our husbands, fathers, and brothers, enforced by the coercive combined power of fundamentalist religion and the state.


The U.S. fetus fetishists’ latest monstrosity is the Texas anti-abortion law that prohibits all abortions after six weeks (before most women know they are pregnant) and that provides for vigilante enforcement, deputizing anyone in and out of Texas to seek $10,000 in bounty, plus attorneys’ fees against abortion providers, or anyone else assisting a woman in obtaining an abortion. By letting this law stand as part of its “shadow docket” (without benefit of full briefing or oral argument), the U.S. Supreme Court may have effectively overturned Roe v Wade or at the very least, signaled its intentions to do so.


Though this turn of events has frightening consequences for women in Texas and elsewhere around the country, for many women, abortion rights was already hanging by a thread or practically non-existent. Abortion has not been accessible to poor women on Medicaid since 1977 with the passage of the Hyde Amendment, a mere 4 years after the ruling. As predicted by radical women’s liberationists who regarded Roe as an inadequate compromise, women’s right to abortion has been whittled away little-by-little until what we are left with today is largely an empty legal right, unavailable to vast numbers of women living in this country. In the 1980s, Marion Banzhaf of the Abortion Rights Movement (A.R.M.) argued that feminists needed to take a stronger line than “pro-choice.” She said, “Being pro-abortion means going on the offensive to answer the attack on abortion rights. Being pro-abortion means that the woman is more important than the potential life– the fetus. It really is quite simple. The pro-abortion movement puts the woman first.”


The Biden administration and the Democrats in Congress are hardly blameless regarding the state of affairs brought about by the Texas anti-abortion law. They could take effective action to protect women’s right to abortion, yet so far have not done so. President Biden could instruct the archivist to register the Equal Rights Amendment, already ratified by 38 States, into the U.S. Constitution tomorrow, thereby placing sex-based protections into the Constitution, which would strengthen the legal grounds for abortion rights. Instead, the Biden Administration has fought feminists in court who sought this very result, while feigning outrage at the Texas law’s assault on women’s “constitutional rights.”


Additionally, the Biden Administration and Congressional Democrats could work with all deliberate speed for passage of the Women’s Health Protection Act (HR3755 and S1975), federal legislation first introduced in 2017, that would secure the right to provide and receive an abortion, free from medically unnecessary restrictions that single out abortion from other medical procedures. They could also act decisively to re-configure the Supreme Court so far-right justices no longer dominate, which should have been done before the Texas law took effect, if protecting the right to safe, legal abortion were a priority. Though the Justice Department has just filed its own suit against the Texas law, this is far from sufficient to solve the crisis women face.


If we have studied our history, we know that women have never had our rights handed to us by men in power or by male-dominated institutions. Rather, we have fought tooth-and-nail for them, from winning suffrage, the right to manage our own financial affairs, civil rights laws against sex discrimination in the workplace, to achieving legal abortion. Much is yet to be won.


We are therefore heartened that the Women’s March and other mainstream women’s groups have finally called for actions in support of abortion rights on October 2 in cities across the country.  FIST plans to be there and we urge other feminists to join us. We will demand that not only Roe be upheld and the Texas law defeated, but that the Equal Rights Amendment be enshrined in the Constitution and that unimpeded access to abortion be guaranteed to all women everywhere in the country via passage of the Women’s Health Protection Act.


To fight effectively against those who would strip women of our reproductive rights, we need at the same time to challenge the erasure of women as a sex through language and public policy. Gender identity can no longer be allowed to override or supplant sex. As the abortion issue should make clear, women’s oppression is based on our biological sex, regardless of the degree to which we may conform to or reject a set of society-imposed stereotypes about how women are supposed to use make-up, dress, and behave. Women–adult human females–are half the human race. Only women–females of reproductive age–have the capacity to get pregnant and give birth. Only women need abortions. Control over our own reproductive capacities, sexuality, and labor is absolutely required for the liberation of women.


So, using terms like “pregnant people,” “chest feeders” and “menstruators,” rather than being inclusive, actually undermines the struggle for women’s liberation by obscuring the source of our oppression and makes it more difficult to re-build our movement. It would be like refusing to recognize the racist nature of policing by rejecting the slogan “Black Lives Matter” in favor of “All Lives Matter,” as we’ve seen in the right wing backlash against the current wave of activism combating police brutality. Black people and their allies rightly struggle against such language. Women and our allies should be similarly willing to stand up for strong, clear language that abortion is about the rights of women.


It is time for women to fight back proudly as women for our sex-based right to control our own reproduction. We demand a WOMAN’S right to abortion without apology or impediment!
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DOWNLOAD A COPY OF FIST ABORTION STATEMENT

“On the Basis of Sex”: Why the ERA is still important for women and girls

Why do women still need the ERA? Won’t the placing of the word “sex” in the U.S. Constitution and providing for legal equality between the sexes just be used against us and provide no real benefit? Some, like our sisters in WoLF, think so. We think they are dead wrong on this one.


First we need to understand our past. The eagerness and utter blindness in which so many progressives have betrayed their principles and sold out the interests of women and girls in favor of a sex-denying gender identity ideology is not unprecedented in history. After the Civil War, the Abolitionist movement, the male comrades of the early suffragists and First Wave feminists betrayed their sisters by insisting that women, both Black and White, wait for our rights, and that only Black males should have their rights recognized. They ended up putting the word “male” in the Constitution for the first time, in the Fourteenth Amendment. Women were now explicitly non-citizens.

This split the movement, weakened both the feminist and anti-racist struggles, and led to some feminists incorporating racist ideology into their campaigns and for the first time opposing universal suffrage. This betrayal also delayed the victory for women’s suffrage until 1920. But, guess what, the word “male” is still in the Fourteenth Amendment, the Amendment that provides due process and equal protection of the laws. The Equal Rights Amendment is in part about a long overdue correction, to treat sex discrimination with the same seriousness and status as race discrimination under the highest law of the land, the U.S. Constitution.

Race and national origin discrimination claims benefit from what is called “strict scrutiny”–it is far easier under the Fourteenth Amendment to challenge discriminatory laws and practices based on race than on sex–and to do so everywhere in the country. And women still suffer from a ton of such practices. One of the biggest aspect of female oppression is we are poor and grossly underpaid. Poverty means that women often are forced to stay with abusive male partners or are vulnerable to being prostituted in order for them and their children to survive. We still have a largely sex-segregated workplace, with “men’s” jobs having higher status and pay. Women who entered the trades in the late 1970’s, were forced out a few years later largely as a result of sexual harassment. White women who work full-time earn 78 cents to every dollar a man earns. For women of color it is far less. Women are over 62% of minimum wage workers.

And even in female-dominated professions, men make more than women do, with women nurses paid 10% less than the males, and women lawyers earning 83 cents on the dollar compared to their male colleagues. While we have laws against discrimination in employment and wage discrimination they have loopholes or may not be enforced. And these laws could be weakened or repealed at any time. A Constitutional Amendment has much more staying power.

Or take pregnant women workers. Despite the Pregnancy Discrimination Act, pregnant women, especially those in low paid physically demanding jobs, are routinely fired or forced off the job. They are treated far worse than employees covered by the Americans with Disabilities Act suffering from a variety of medical conditions. Putting sex in the U.S. Constitution would make it far easier for those women to make their case.

The Equal Rights Amendment would give women an additional hook to challenge male violence against women in the universities and in the military. And women being denied access to contraception could challenge the double standard that allows Hobby Lobby to refuse to cover contraception while covering Viagra. And can it not be argued that it is sex discrimination for vasectomies to be perfectly legal and funded while abortion is not funded and instead even treated as a crime as many states are trying to do?

But what of the downside, that women-only spaces and programs might be eliminated? First, this is already happening under Title IX and in other areas of civil rights law, and through regulation, without the ERA. Should we then repeal Title IX or Title VII because the sex discrimination provisions can be used to eliminate the separate spaces and programs that women need? No, we need to fight against the use of “gender identity” to remove sex-based rights and we need to do so with or without the ERA.


Strict scrutiny doesn’t mean no distinction is possible. There is extensive case law holding that distinctions meant to address past discrimination of a historically disadvantaged group are allowed, or where there is a compelling reason to treat the groups differently. Female-only spaces and programs, including women-only scholarships, colleges, shelters, clinics, and training programs have compelling reasons justifying them, based on privacy, male violence, addressing past discrimination and other grounds. Same goes for women’s sports programs. The fight to defend affirmative action, for example, has been going on for decades and this is an area where men of color and women’s interests as a sex coincide.


It is quite telling that President Biden is all-in for eroding sex-based rights through support for an un-amended Equality Act and issuing Executive Orders that would have gender identity override sex, but can’t manage to tell the Archivist to publish the ERA. Women must expect and demand more.


It has been nearly one hundred years since the first version of the ERA was introduced in Congress in 1923 as the Lucretia Mott Amendment.  A century is too long to wait for equal rights based on sex under the Constitution. EQUAL RIGHTS AMENDMENT NOW!

URGENT ACTION RE ERA

It has been nearly a century since the first version of the Equal Rights Amendment, known as Lucretia Mott Amendment, was introduced in Congress, and almost 50 years since it finally was passed by both houses in 1972.  Many of us marched in support of the ERA and our hope was renewed in recent years when groups like Equal Means Equal joined the fight to get it ratified by the remaining three states.  Nevada ratified in 2017, Illinois in 2018, and Virginia in 2020, finally giving us the 38 states needed to ratify a constitutional amendment.
Then Trump’s Attorney General William Barr sent a memo to the National Archivist, David Ferriero, telling him not to publish the ERA to the Constitution, and though Joe Biden and Kamala Harris both claimed they support the Equal Rights Amendment and many women voted for them expecting them to act, the Biden Administration has made no effort to revoke this egregious abuse of authority or direct the Archivist to publish the ERA. Biden should have done this his first day in office and today he has now been in office for 3 months and he still has not done so.
Therefore, we are asking that you help us exert pressure on Biden and Harris for the next 30 days to honor a century of struggle for equal rights for women by publishing the ERA.  Here is what we’re asking you to do:
1) Send a postcard every day for a month to the White House demanding that they REMOVE the Barr memo and direct the archivist to publish the ERA (stamped postcards=$12 for 30. One trip to the Post Office; 29 trips to one’s mailbox) with the message: WOMEN HAVE WAITED NEARLY A CENTURY FOR OUR CONSTITUTIONAL RIGHTS.  REMOVE THE BARR MEMO AND DIRECT THE ARCHIVIST TO PUBLISH THE ERA NOW!!  The address is:  President Joe Biden/Vice-President Kamala Harris, The White House, 1600 Pennsylvania Avenue NW, Washington, D.C. 20500.2) Call 2-3 female Senators per day (18 Democrats; 2 moderate Republicans), 3 times (10 days to go through the list at 2 per day) and urge them to demand that the White House publish the ERA.  Here is a list of women senators and their phone numbers to call.  They are all Democrats who should definitely support the ERA except for two moderate Republicans (Susan Collins from Maine and Lisa Murkowski from Alaska) whom we believe are in favor of equal rights for women. We have included their states as well–if you are a constituent of theirs, please emphasize that; let them know you are contacting them because as women you hope they care about women’s rights as much as you do and let them know that you are calling on behalf of all the women in your state and the U.S.

3) Join us on social media–especially Twitter @FeministStruggl (follow us and retweet)–as we can directly tweet to @WhiteHouse, @POTUS, @KamalaHarris @VP @JoeBiden to call out the Biden Administration on their neglect of women’s constitutional rights and obstructionism and demand that they remove the Barr memo and direct the Archivist to publish the #ERANow!!

4) Go to May Day for the ERA at Equal Means Equal and sign up for the livestream to hear Wendy Murphy’s legal argument on May 5th.

Thank you very much for doing all you can for women to finally achieve equality under the law.  We are tired of being second-class citizens and demand our full constitutional rights!!

The Killing of the Equal Rights Amendment

The amazing lawyer from Equal Means Equal, Wendy Murphy, sent FIST the article below on the killing of the ERA by an Obama-appointed Judge and the Biden Administration. She also links the fight for the ERA to the overall struggle to defend women’s sex-based rights against our threatened erasure by transgender ideology. We need to unite and organize even harder as feminists to turn around these attacks on our rights.

 

WHY DID AN OBAMA-APPOINTEE JUDGE KILL THE ERA?

By Wendy Murphy

March 15, 2021 

An Obama-appointee federal judge killed the ERA during Women’s History Month. Let that sink in.

It was a monumental decision that had many scholars scratching their heads trying to understand why a liberal judge with the power and opportunity to establish women’s constitutional equality for the first time in history, would instead rule against women. 

On March 5 Judge Rudolph Contreras from the United States District Court for the D.C. District, determined that the Equal Rights Amendment was invalid because it was not ratified in time. He said that a congressionally imposed ratification deadline had expired decades ago, which rendered recent ratifications by several states meaningless. His ruling killed the ERA, though some women’s groups think the ERA can be revived by having Congress pass a law removing the deadline. A hearing in the House of Representatives on a bill to do just that is scheduled for the week of March 15, but scholars uniformly agree that Congress has no authority to retroactively fix or remove a deadline that no longer exists. In 1978 when the first ERA deadline was about to expire, Congress proposed a law to extend it for three more years. During hearings on the bill, all the scholars who testified said Congress had to take action before the deadline expired or they would forever lose authority to affect the deadline. In other words, Congress has no power to change a law that no longer exists.

Even if Congress passes such a law, it will be voided by another federal judge before it leaves Capitol Hill. Judge Contreras stated in his ruling that he was expressing no opinion on how he might rule if Congress were to pass a law removing the deadline, but he was very clear that the validity of such a law would be decided by the courts, not Congress. Judge Contreras’ anti-ERA ruling leaves little doubt the judge who rules on the deadline removal bill will quickly rule that expired deadlines cannot be revived by an act of Congress.

Neither party supports women’s equality, but the Democrats fake it better. If Democrats actually supported the ERA, Judge Contreras would have validated the ERA simply because he could. At a minimum, he could have included in his opinion a discussion of why women need equality, and how not having full equal protection rights causes women to suffer high rates of violence, etc. Having a federal judge acknowledge the purpose of the ERA and the suffering women endure because they are unequal would have been helpful. But he said nothing.

Judge Contreras wasn’t required to discuss much less rule against the ERA. He had determined at the outset of his decision that the Plaintiffs – Nevada, Illinois, and Virginia – had no standing to file a lawsuit. When a judge finds no standing, there is no reason for that judge to then discuss the merits of the case, but he gave us his opinion on the deadline anyway. In other words, Judge Contreras went out of his way to invalidate the ERA when it would have been easy for him to say nothing at all or uphold it. Here’s why.

The Plaintiffs argued that the ERA deadline was not valid because it was placed in the ERA’s preamble (introductory section) rather than the text of the ERA itself. This is important because Congress only recently started putting deadlines in preambles. For a very long time in this country there were no deadlines in any amendments, and when Congress started imposing deadlines, they placed them in the text because the States have a right under Article V of the Constitution to participate as equals with the federal government in deciding whether to amend the Constitution. The States cannot participate as equals when amendments contain important language in preambles because the States can only ratify amendments; they have no authority to vote on language in preambles. Only if a deadline is placed in the text can States decide for themselves whether they want their equal ratification rights restricted by a time limit.

When deciding whether the placement of the ERA’s deadline in its preamble rendered the deadline unconstitutional, Judge Contreras analyzed whether Congress itself had doubts about the constitutionality of placing the deadline in a preamble. If they did have doubts, Judge Contreras could have invalidated the ERA deadline on the grounds that its constitutionality was not clear at the time it was imposed. But Judge Contreras said Congress had no doubts. 

He was wrong.

Judge Contreras said Congress “did not expect that changing the location of a deadline [from the text of an amendment to its preamble] would affect the deadline’s effectiveness.” Op. p.31.

In fact, Congress did have doubts because no court had ever before ruled that Congress could place a deadline in a preamble. It was an issue of first impression, which means the judge had enormous leeway in deciding whether to uphold the deadline because there was no binding precedent forcing him to rule a certain way.

This is exactly the type of case where a judge’s values make a difference. A judge who sincerely believed that women deserve constitutional equality would have seized the opportunity to rule against the deadline simply because no existing law or court ruling compelled him to rule otherwise.

Here are the facts Judge Contreras ignored – that he could have and should have relied on to rule that the ERA deadline is not valid because Congress was not confident that placing a deadline in a preamble was constitutional.

Imposition of ratification deadlines began relatively recently with the 18th Amendment in 1917 and have been imposed only a handful of times. Most of our amendments had no deadline at all. A deadline was imposed on the 18th but not the 19th Amendment. And the placement of deadlines has been inconsistent. Some were placed in preambles, while others were placed in the text.

When Congress was proposing to add a deadline to the preamble of the 20th Amendment in 1932, some members of Congress objected on the grounds that placing it in a preamble would be “of no avail” as it would not be “part of the proposed constitutional amendment.” 75 Cong. Rec. 3856 (1932). Congress thus placed deadlines only in the text of the next three amendments.

It was not until 1960 that Congress first placed a deadline in a preamble, claiming a need to “declutter” the text. But if decluttering the text were truly the goal (rather than limiting States’ rights by restricting the time they have to ratify) why would Congress have “cluttered” the text of the ERA with procedural matters such as delaying the ERA’s effective date for two years after ratification? It makes no sense that the States were able to vote on whether the ERA should have a two-year delay in enforcement after ratification because that language was in the text, but States were not able to vote on whether their Article V rights should be restricted by a congressionally imposed ratification deadline because that language was in the preamble.

As recently as 1978, Congress placed a deadline in the text and the preamble of an amendment, indicating they remain dubious about the constitutional legitimacy of placing deadlines in preambles. 92 Stat. 3795 (1978).

All these facts were excluded from Judge Contreras’ ruling killing the ERA. Women have a right to know why a judge would ignore such important information in a case of monumental importance to half the population in America.

Judge Contreras justified his decision by saying that “if Congress can dictate the mode of ratification” in the preamble, “then it should be able to dictate a ratification deadline in the same fashion.” This makes no sense. “Mode of ratification” refers to whether the ratification process occurs by State conventions or State legislatures. Congress may dictate which of these modes is used because Article V of the Constitution explicitly gives Congress this power. Article V does not give Congress the power to restrict States’ rights by limiting the time they have to ratify an amendment. To the contrary, the Framers were clear that amendatory powers must be shared equally between the national and state governments and allowing Congress to dictate how long the States have to ratify an amendment is tantamount to giving Congress sole authority to decide when our Constitution is amended – in blatant derogation of Article V.

This was one of the most important women’s rights legal controversies ever, yet a judge who easily could have declared women fully equal persons under the law declined to do so, and he based his decision on incorrect facts. His ruling prevented women from achieving equality and effectively changed Article V by stripping the States of their vital right to participate in the amendatory process as equals. Maybe we shouldn’t be surprised that a judge willing to disregard women’s equal rights was willing to disregard States’ equal rights, too.

That Judge Contreras was appointed by President Obama matters because a judge women would expect to uphold the ERA and condemn our Constitution’s pervasive and embarrassing subjugation of women, did the opposite. The good news is women can now see that our only hope for fixing the Fourteenth Amendment and achieving full equal protection rights is the establishment of our own Women’s Party – or similar form of union-like organization whose sole purpose is to give women the leverage they need to force one party or the other to do the right thing. This is how women won the right to vote. They formed their own political party and established their own newspapers because neither the media nor either political party supported them.

A new Women’s Party or like organization need not focus on the ERA per se. Indeed, in light of recent efforts to change the meaning of the word sex and erase the very idea of women’s existence as a biological and political class by collapsing sex and gender, and making gender mutable, militates in favor of focusing energy instead on initiatives and laws to affirm the definition of sex and the reality of womanness. Without sex there are no women, and without women there can be no political activism on behalf of women. This is not complicated. The fight for equality is now a fight against women’s invisibility. We cannot play by the rules when we don’t exist in the rules. Most mainstream women’s groups are proxies for the Democratic Party; they will never protect sex and sex-based rights. We need a new movement with incorruptible nonpartisan leadership and a laser-focus on maintaining and growing the enormous potential and power of biological and political sex.