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.