Chief Archivist Sued by Attorney Generals

Tasfia Ahmad discusses the present state of the Equal Rights Amendment. In theory, the change should have been implemented in January of this year. However, the US Archivist refused to pass the amendment, which has led to him being sued by three attorney generals. Learn more about the history of the law, those who have fought for it, and what it would mean for future generations.

On January 30, 2020, three attorney generals announced they would be suing the archivist of the United States, David S. Ferriero. They were: Mark Herring of Virginia, Aaron Ford of Nevada, and Kwame Raoul of Illinois. The lawsuit would ensure that the Equal Rights Amendment was finally certified and added to the U.S. Constitution as the 28th Amendment. On July 1, the Winston and Strawn law firm filed an amicus brief supporting the case, on the behalf of the Equal Rights Amendment Coalition and more than 50 women’s rights organizations.

An amicus brief is a persuasive legal document filed in court cases by outside parties with a strong interest in the subject matter. Their sole purpose is to advise the court of relevant, additional information or arguments that the court might wish to consider. They are filed by an appellate attorney, whose job is to analyze, write persuasive arguments and focus solely on the case.

The Equal Rights Amendment is a proposed consitutional amendment that guarantees legal equality, regardless of gender. “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” This amendment was proposed by the National Women’s political party in 1923, specifically by the co-founder, Alice Paul, after the passing of the Nineteenth Amendment, which granted suffrage to women. However, the Equal Rights Amendment did not become popularised until the late 1960s, when famous women like journalist Gloria Steinem became involved, alongside Congresswomen Shirley Chisolm and Bella Abzug.

In 1982, the fight was going well, and the law seemed set to pass through Congress, followed by the Senate. 35 states had agreed to ratify it. The amendment only needed the approval of three more states in order to be added to the Constitution, but then, a group called “Stop the ERA”, were mobilized, and successfully prevented the amendment from being passed. The Senate gave activists a three-year deadline to ratify more states but this was not enough time.

After this deadline was missed, many considered the Equal Rights Amendment to be “dead” or forgotten. However, after Illinois and Nevada offered their ratification, Virginia became the 38th state to ratify the amendment on the 20th of January. This would officially allow the Equal Rights Amendment to be passed, and a certified copy of its ratification could theoretically have been submitted to the National Archives and Records Administration on that day.

Yet, David S. Ferriero, the U.S. Archivist would not publish or certify the amendment “unless otherwise directed by a final court order.” On January 25 2020, the Senate introduced a joint resolution, which would eliminate the deadline for the ratification of the Equal Rights Amendment. It read as follows:

This amendment was proposed to the states in House Joint Resolution 208 of the 92nd Congress, as agreed to in the Senate on March 22, 1972. The amendment shall be part of the Constitution whenever ratified by the legislatures of three-fourths of the states.

The amicus brief titled Commonwealth of Virginia, State of Illinois, and the State of Nevada, V. David S. Ferriero, would mandate equal opportunities in the educational and economic field. These rights would be provided for people of all genders, races, and ages. Some businesses have announced their support for the ERA. Specifically, ninety-three businesses such as Apple, Google, Microsoft and Pepsi, have filed an amicus brief, arguing that “a workforce that includes employees with different backgrounds and life experiences is essential for any business operating in a global economy and multicultural society.”

Furthermore, the brief details the policies that would enhance the Equal Rights Amendment, such as the Menstrual Equity Act. Overall, the amicus brief explains exactly what the amendment is and how it protects everyone of every identity. It is not only beneficial for the current generation, but for posterity. The case is set to take place in the Supreme Court, but no details about the date have yet been released.

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