Coalition Urges DOJ to Instruct the National Archivist to Publish the Equal Rights Amendment in the Constitution

Free Speech For People, Generation Ratify, and six other organizations today issued a letter to Attorney General Merrick Garland, urging him to instruct the Department of Justice's Office of Legal Counsel (OLC) to rescind its January 6, 2020 advisory opinion regarding the ratification of the Equal Rights Amendment (ERA). The Archivist of the United States is responsible for publishing and certifying the Equal Rights Amendment as the 28th Amendment to the U.S. Constitution, but has declined to do so in deference to the OLC opinion. Rescinding this erroneous opinion will clear the way for the Archivist to publish and certify the ERA.

Under the direction of former Attorney General Bill Barr, the OLC argued that the ERA has not and cannot be properly ratified because only 35 states ratified the ERA prior to the expiration of an extra-constitutional seven-year ratification deadline imposed in 1972. This deadline, however, was not included in the text of the amendment passed by Congress and ratified by the states and, as such, lacks any constitutional authority. Nevada, Illinois, and Virginia have since ratified the amendment, satisfying the constitutional requirement that a proposed amendment be ratified by three-fourths of the states. As the letter explains, the omission of this deadline in the text of the amendment means the ERA remained eligible for ratification and inclusion in the Constitution.

The letter further explains that the advisory opinion was not merely wrongly decided. It should be rescinded because the OLC lacked the authority to block the Archivist from carrying out his duties related to the constitutional amendment.

"The Department of Justice is not, and should not be considered, a gatekeeper on the legal validity of an amendment," the letter, authored by Free Speech For People, argues. "Article V [of the U.S. Constitution] expressly assigns the constitutional amendment process to Congress and the states, and the executive branch plays no role in the process of either proposing or ratifying amendments."

"Nowhere in Article V nor in any other provision does the Constitution provide Congress with authority to impose a deadline on ratification or to otherwise alter the Article V's unqualified command that an amendment proposed by Congress shall be a valid part of the Constitution 'when ratified' by three-fourths of the states."

The United States currently lacks explicit federal constitutional protection against discrimination on the basis of sex. The ERA would correct this, by ensuring that "[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." Originally drafted by suffragists Alice Paul and Crystal Eastman in 1923 and passed by Congress in 1972, the Equal Rights Amendment was deterred by a national conservative campaign against it, led most notably by Phyllis Schlafly.

"The certification of the Equal Rights Amendment will have wide-reaching, material impacts on the lives of all Americans," Generation Ratify told its followers in a statement on the letter. "It is intersectional with economic justice, racial justice, queer liberation, climate justice, and so much more."

In addition to Free Speech For People and Generation Ratify, other organizational signatories to the letter include: Engendered Collective, End Rape on Campus, Gen Z Girl Gang, DC Teens Action, The Greater Good Initiative, and Not My Generation.

Read the letter here.