To be fair, Ferriero, a librarian by training, doesn’t seem to be on a mad power grab. District Judge Rudolph Contreras of the District of Columbia ruled the states lacked standing because they weren’t actually injured by the archivist’s non-action.Ĭontreras, who was appointed to the bench in 2012 by then-President Barack Obama, wrote that the archivist’s “publication and certification of an amendment are formalities with no legal effect.”īut the archivist’s refusal to act has ramifications that go beyond whether souvenir Constitutions at the National Archives gift shop have 27 or 28 amendments.įor example, amici say certifying the amendment will put state and local entities on notice to review any potentially discriminatory laws on their books that might not pass muster.īoies Schiller Flexner lawyer Vanessa Tussey, who along with two other firm associates penned an amicus brief on behalf of organizations in Virginia, Illinois and Nevada that worked to get the ERA ratified, argues that archivist’s refusal to act inappropriately elevates his role.Īs Tussey put it to me, why should an “unelected, executive branch official have the discretion to determine the validity of the ratification of a constitutional amendment by state legislators?” Instead, the court will consider whether plaintiffs Virginia, Illinois and Nevada – the last three states to ratify the ERA to reach the three-fourths approval required by Article V of the Constitution – have standing to sue Archivist David Ferriero and if so, whether he erred by refusing to publish and certify the amendment promptly. Circuit is not whether the ERA is a good and worthy idea. If anything, the need is even greater.”Īlas, the question before the D.C. “Support for the ERA is alive and well,” said Liza Velazquez, a partner at Paul, Weiss, Rifkind, Wharton & Garrison who represents 86 corporate amici ranging from Apple Inc to WeWork Inc. It would also put such claims on the same “strict scrutiny” legal footing as race, religion and national origin bias complaints, requiring that discriminatory laws must be narrowly tailored to a compelling state interest to be upheld as constitutional. Still, I admit the fight over the ERA initially struck me as almost quaintly anachronistic, a throwback to the era of bell bottoms and macrame plant hangers.īut the plaintiffs make a compelling case that the amendment is still relevant and necessary, a way to supplant the existing patchwork of federal, state and local laws addressing gender-based discrimination. It’s a sad state of affairs when North Korea bests us on civil rights.
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