Trump administration sets up Equal Rights Amendment showdown. Here’s what it all means

The Justice Department posted a memo Wednesday shutting down a recent push to revive the Equal Rights Amendment, saying the deadline already has passed.

The memo by Assistant Attorney General Steven Engel comes as Virginia moved to become the 38th state — and the last state needed — to ratify the amendment.

Virginia officials have vowed to fight back, setting up a potential showdown between states and the federal government.

What is the Equal Rights Amendment?

First introduced in Congress in 1923, the Equal Rights Amendment was a proposed amendment to the Constitution that said, “men and women shall have equal rights throughout the United States and every place subject to its jurisdiction” and that Congress had the power to “enforce this article by appropriate legislation.”

Supporters tried and failed over the years to push the proposal forward, until it finally went before a vote in Congress in 1946. It failed to pass the Senate that year, and later flopped in the House in 1950 and 1953.

The ERA found new life decades later in 1970, but again failed to get a final Senate vote. It didn’t get support from both the Senate and House until 1972.

At the time, the ERA had a proposing clause that said, “the legislatures of three-fourths of the several States” ratify the amendment “within seven years from the date of its submission by the Congress.” That set the deadline as 1979.

Congress extended the deadline in 1978 by three years with support from President Jimmy Carter. But it failed to get support from enough states. Advocates have now revived the effort, saying that either Congress could retroactively cancel the deadline or that the original deadline was invalid.

The Justice Department disagrees.

“Congress required that the ERA Resolution be ratified within a fixed period, and whether the effective deadline was in 1979 or 1982, that time has come and gone,” Engel wrote in the memo.

What happens next?

The fight to ratify the Equal Rights Amendment is not over, according to Virginia Attorney General Mark Herring. In a statement Wednesday, he said women “deserve to have equality guaranteed in the Constitution.”

“When Virginia becomes the 38th state to ratify the ERA I am going to do everything in my power to make sure that the will of Virginians is carried out and the ERA is added to our Constitution, as it should be,” he said.

ERA supporters also filed a lawsuit in Massachusetts on Tuesday arguing that the deadline included in the amendment is not constitutionally binding.

Three states, Alabama, Louisiana and South Dakota, have filed a lawsuit to stop the amendment from going forward. In a statement, Alabama Attorney General Steve Marshall said that the Justice Department’s opinion reflects how Congress included deadlines for amendments to ensure the Constitution “reflects the will of the people across the country ‘at relatively the same period.’ ”

“The DOJ agrees with Alabama’s principal legal argument that the ERA expired long ago and can no longer be ratified,” Marshall said.

The Justice Department says there are only two ways the ERA can continue. Either Congress restarts the process by re-proposing the amendment to the states, or both the House and the Senate approve a joint resolution removing the original deadline.

This story was originally published January 9, 2020 at 11:31 AM.