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ERA backers fight uphill battle in D.C. as Minnesotans seek state version

The ratification in mid-January by the Virginia state legislature of the longstanding but inert Equal Rights Amendment has focused attention on the measure’s viability in the nation’s capital.

equal rights amendment
A demonstrator holds a sign calling for an equal rights amendment during in the Third Annual Women's March at Freedom Plaza in Washington on January 19, 2019.
REUTERS/Joshua Roberts

The ratification in mid-January by the Virginia state legislature of the longstanding but inert Equal Rights Amendment (ERA) has focused attention on the measure’s viability in the nation’s capital.

It’s in the Congress and the courts there that battles probably will be fought over the validity of the proposed amendment to the U.S. Constitution, which was supported by President Richard Nixon (as did two of his recent predecessors, Dwight Eisenhower and John F. Kennedy) and approved by large bipartisan majorities in both Democratic-controlled houses of Congress in 1972.

Minnesota, incidentally, was the 26th state to jump on the ratification bandwagon when the legislature approved it 47 years ago this week on Feb. 8, 1973. But the bandwagon stalled in the mid-1970s, promoted by concerns from some conservative groups about how the measure might effect issues like access to opposite sex bathrooms, and payments to women of child support and alimony (known in Minnesota as “maintenance”), as well as feelings that the provision was unnecessary due to the expanding application of the Equal Protection clause of the 14th amendment to cover gender disparity treatment.

Now, nearly five decades later, on the heels of the Virginia ratification, it’s likely to be a grueling, time-consuming, contentious, and uphill challenge for advocates of the proposition that concisely but potently declares: “Equality of rights under the law shall not be denied or abridged by the United States or any state in account of sex.”

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Expiration and extension 

The fragility of the measure stems from the provision’s congressionally mandated seven-year deadline to achieve ratification by approval by the constitutionally required three-fourths, 38, of the states, which was subsequently extended by three years to expire in 1982, at which time only 35 states had ratified, later joined within the last few years by Illinois and Nevada before the Virginia ratification last month.

Marshall H. Tanick
Marshall H. Tanick
With the expiration date long since passed, the ERA is likely to face an uphill battle with formidable challenges to its legality, a vulnerability supplemented by the post-ratification revocation of approval by five states (Idaho, Kentucky, Nebraska, Tennessee, and South Carolina) whose recitations are of questionable validity. The incline for the ERA was made even steeper when, as Virginia ratified it, the U.S. Department of Justice announced its view that ERA was dead due to expiration of the 1982 deadline, based upon an opinion from its  Office of Legal Counsel.

The uncertainty of the issue prompted a federal lawsuit in the District of Columbia this week by the Attorneys General of three states — Illinois, Nevada, and , Virginia — all Democrats and men, no less, seeking a court ruling accepting the post-deadline Virginia ratification and deeming the measure in effect.

The expiration issue seems headed for ultimate resolution by the U. S.Supreme Court, another hot-button issue whose outcome may be determined by the ideological complexion of the tribunal.

These ERA enigmas are going to be addressed during the week of Feb. 10 as the House of Representatives, freed from its impeachment travails, is scheduled to take up a “Delete the Deadline” measure, a self-explanatory effort to lift the lid on the ratification process. The undertaking comes at a propitious time as the nation commemorates the 100th anniversary of the 19th Amendment granting women the right to vote.

Minnesota’s equality effort

While it will probably take a long time to sort out these and other conundrums, the matter of constitutionally recognized gender equality is not beyond salvation, and that resuscitation might occur right here in Minnesota.

An effort was made by DFLers in the Legislature, spurred by an advocacy organization known as ERA Minnesota, to place on the ballot a state mini-ERA constitutional amendment. Worded identically to the federal measure, it must be approved by a majority of voters. But after it was approved by the DFL-dominated House of Representatives, it was tabled in the Republican-controlled Senate and never made it to the ballot.

The measure is likely to resurface this year, especially in light of struggles the ERA is facing at the federal level. Its advocates have high hopes if they can get the proposal to the polls; the last time voters had a chance to weigh-in on a constitutional amendment, the voters in 2012 narrowly defeated a constitutional amendment to prohibit same-sex marriage, along with a proposal to require photo identification for casting a ballot. The former led to enactment the following year of a ground-breaking law allowing same-sex weddings two years before the landmark ruling of the U.S. Supreme Court proscribing restrictions on intra-gender marriage in Obergefell v. Hodges. ERA advocates feel that the mood of the Minnesota electorate, as reflected in those two rejections of conservative-supported constitutional amendments can lead to passage of the liberal-oriented gender-equity measure.

But the GOP lawmakers controlling the state Senate are likely to suppress the proposition again, keeping it off the ballot and injecting it as a key issue in the fall elections and its determination of the composition of the next legislative session.

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Lucky at the Legislature?

DFL dominance of the Legislature by retention of a solid control in the House and a working majority in the Senate could result in the mini-ERA appearing on an upcoming ballot as a proposed amendment to the Minnesota Constitution. Era advocates could establish the provision as section 13 of Article 13 of the Minnesota Constitution if they are lucky enough to navigate successfully through the legislative process and the polling places.

To the contrary, GOP recapture of the House or maintenance of its existing slender majority in the Senate would undoubtedly doom any state version of the ERA appearing on the ballot.

So, as both supporters and detractors of a federal ERA flail away with arguments about deadlines, extensions, revocations, retroactivity, and other legal esoterica, here in Minnesota is where the action might be for a constitutional guarantee of gender equality.

Stirring during the centenary of women’s right to vote, the battle over the ERA couldn’t come at a more opportune occasion. As its proponents might say, borrowing from another contemporary movement: Time’s up!

Marshall H. Tanick is a Twin Cities constitutional law attorney and historian.

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