Justice Department issues a binding opinion instructing the National Archives not to publish the Equal Rights Amendment

The Office of Legal Counsel of the Department of Justice, in response to a request for guidance from the National Archives and numerous other entities including Members of Congress, issued the following guidance which is legally binding upon the National Archives.


With Virginia about to provide the 38th purported ratification soon, it has become necessary to legally decide this matter, because 38 is the required number of of ratification.

The opinion essentially states that Congress may place a deadline for ratification. That has been clearly decided by the Supreme Court in the past. The opinion states that the deadline extension in 1978 is dubious at best. The opinion goes on to state that regardless of the legality of the extension, once the extended deadline expired in 1982, the Amendment died for good and cannot be revived.

The opinion goes on to state that the only way to revisit this issue is for Congress to start over again from the beginning. They must pass a new amendment by a 2/3rd’s vote of each House and the ratification process must start over again from the beginning.

So even when Virginia submits its ratification, the National Archives may not publish the amendment and the amendment will be considered to be null and void and of no legal effect.

It is highly significant that Justice Ginsburg, in a speech, fully concurs that the 1972 amendment is dead and that the process must start over from the beginning. She supports Congress doing so, but correctly concurs in the above opinion.

I concur, as does Justice Ginsburg, with the legal guidance just issued by the Department of Justice.

Personally I have no issue with congress passing a law setting a time for an amendment to be passed by the states.

However technically:

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; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

I don’t see anything in there giving congress the ability to limit it once it’s been sent to the states for ratification.

I specifies the restrictions on the amendmends that can be proposed (during a certain time), but doesn’t allow congress to pass laws effecting the ratification process.

Again let me emphisize I personally think there should be a time limit in the ratification process (and if congress put a mid 1980’s deadline on the ratification, then it died at that deadline unless the supreme court rules the law unconstitutional).

Dillon v Gloss, decidedly unanimously in 1921, upheld the validity of time limits on ratification.

Hasn’t the deadline also been questioned?

I would love to see the GOP press this issue in an election year

Not an issue to be pressed. Liberal Justice Ginsburg concurs that it is a dead letter. There is nothing left to press.

It has been questioned, but the Supreme Court decided unanimously in 1921 that Congress may enact a deadline to amendments. Settled law.

Sure there is. I want to see them try rescinding some of the protections it provided.

The amendment is entirely unnecessary at this point anyway. Sexual discrimination has been aggressively fought in the courts and by law for years.

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They are not going to do that.

Hell, the courts just ******* EXPANDED equal protection under the law by banning male only selective service registration. The courts take sexual equality most seriously.

Pretty much everything is covered by the 14th amendment.

Are the deadlines outlined in the amendment text OR outside of the amendment’s text but within whatever resolution/bill “sends it to the states”?

What do you mean when you refer to “the protections it provided”? That it could have provided? It was never ratified.

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We just had a major case regarding gay employment before the Supreme Court were the case was strongly made that sexual orientation was not covered in the 14th and therefore the 14th does not apply. The 14th does not mention gender either.

I would agree but over the many years I’ve been involved in the gay rights debate, many a con-servative has tried to claim that the 14th only deals with ex-slaves. How to deal with them?

citizens of the United States

That covers women. If the woman is a citizen she is covered.

any person

Is a woman a person? She is covered

any person

See above.

Voting rights? Covered. Employment laws? Covered equal protection under any law? Covered.

Being born male or female is beyond your choice. Being born black or white is beyond your choice.

Being gay? Well unteel there is 100% proof of a gene or that . . . it’s a choice a person makes.

That isn’t covered by the 14th.

Where in the 14th does it say that only things you are born with or as apply?

Tell them to read it. Slowly.

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If your argument held water, why weren’t women granted the vote in the 19th Century? There is a difference between the implications of coverage and an explicit statement of rights.