About 40 years ago, America dodged a bullet. Women, in particular, were spared.
The United States declined to ratify the inaptly named Equal Rights Amendment as part of the U.S. Constitution by letting the deadline lapse without the requisite number of states adopting it. In doing so, the states rejected a Trojan horse, disguised in the language of equal rights, destined to lead to extreme policies that a majority of Americans oppose—like mandatory taxpayer funding of elective abortion through all nine months of pregnancy. Thankfully, the case for the ERA closed when the proposed amendment expired by its own terms in 1979.
But even with the Trojan horse dead, some activists continued trying to beat legal life into it. Legal scholars, of course, knew better. The late U.S. Supreme Court Justice Ruth Bader Ginsburg, a vocal proponent of the ERA, noted that recent efforts to sneak the amendment into the Constitution come “long after the deadline passed.” Last year, an Obama-appointed federal judge ruled that state attempts at ratifications in the past few years are ineffective because the ratification deadline has long expired. And just last month, the Biden administration acknowledged that the ERA’s deadline came and went a generation ago without reaching the ratification threshold.
Congress understands this, too. Legislators advocating for the ERA have reintroduced a new proposed amendment each year since 1982. Nevertheless, rather than start the process over as required by law, progressive activists in some states have nonetheless insisted that the dead amendment can be resurrected. Since 2017, Nevada, Illinois, and Virginia have each purported to do the impossible and ratify the ERA through their state legislatures. They even filed a lawsuit demanding that their meaningless efforts be judicially blessed as immediately part of the federal constitution.
But now America has dodged another bullet, as the Commonwealth of Virginia recognized the obvious reality that the ERA failed decades ago and has withdrawn from its lawsuit attempting to force ratification through the courts.
As Alliance Defending Freedom argued in a friend-of-the-court brief filed in federal district court, the lawsuit was destined for failure based on the plain facts and meritless legal arguments, and the litigation itself was a dangerous attempt that could threaten to undermine basic principles of our democracy and the Constitution itself. To press the lawsuit would be to manipulate the process for amending our nation’s foundational document and send a terrible message that history and democracy can be distorted for political purposes.
And a political agenda is exactly what this is about. The Constitution already provides equal protection of laws and grants the same rights to women as it grants to men. So what problem, exactly, does the ERA fix? None at all. It’s a vehicle for forcing subsidized abortion-on-demand upon our nation and a bizarre denial of sex-based differences at the same time. The ERA doesn’t even mention “women.”
There’s little question what damage would have been done if the American people hadn’t rejected the unnecessary and pernicious ERA decades ago. The effects, intended or not, would have been the very opposite of equality for women, instead threatening women’s rights and opportunities by inviting a misinterpretation of “sex” that allows males to invade women’s domestic-violence shelters, bathrooms, sports teams, and dormitories.
By leaving “sex” open for reinterpretation, the ERA could tempt judges to strike down commonsense laws that benefit women, including special accommodations for pregnant mothers in the workforce and military; government programs like Women, Infants, and Children; and criminal protections in the Violence Against Women Act. After all, if sex can’t be taken into account—as many read the ERA to dictate—then sex-specific benefits protecting women could go from good public policy to unconstitutional overnight.
But some of those dangerous consequences are the very goal of activists today who continue to push for the ERA to be enshrined in the Constitution. They want to obliterate important gender distinctions while imposing “reproductive justice” through an illegitimate process.
The Virginia attorney general should be commended for honoring the Constitution and declining to let political ideology pervert our democratic processes.
Denise Harle is senior counsel withAlliance Defending Freedom(@ADFLegal). She served as Florida’s deputy solicitor general from 2015 to 2017.
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