FOR IMMEDIATE RELEASE
D.C. CIRCUIT REJECTS APPEAL TO RECOGNIZE EQUAL RIGHTS AMENDMENT AS TWENTY-EIGHTH AMENDMENT
February 28, 2023
BIRMINGHAM, AL – On Tuesday, February 28, the United States Court of Appeals for the D.C. Circuit rejected an appeal to have the Equal Rights Amendment (“ERA”) recognized as the Twenty-Eighth Amendment to the United States Constitution.
In the 1970’s, Congress proposed the ERA to the States, which provided that women would have the same rights as men. Conservative opponents had two criticisms. First, the Equal Protection Clause of the Fourteenth Amendment already guaranteed equal treatment. Second, because many proponents of the amendment considered abortion to be a right necessary to guarantee that women were equal with men, conservatives feared that the ERA would guarantee a constitutional right to abortion. The text of the ERA provided that the states had to ratify it within 7 years. The ERA fell three states short of ratification when the deadline came.
However, from 2017-20, three states ratified the ERA under the theory that it was unconstitutional for Congress to set time limits on a constitutional amendment. Those states sued the National Archivist, arguing that he should recognize the ERA as the 28th Amendment. Several conservative states, led by Alabama Attorney General Steve Marshall, intervened as parties in the case, arguing that the Archivist should not recognize the ERA as the 28th Amendment. The United States District Court for the District of Columbia dismissed the lawsuit, but the plaintiffs appealed.
The Alabama Center for Law and Liberty (“ACLL”) filed an amicus brief on appeal representing Gregory Watson, who led the charge to ratify the 27th Amendment in the 1980’s. What is now the 27th Amendment was part of James Madison’s original twelve amendments that he proposed in the Bill of Rights, 10 of which were ratified by the States. When Watson realized the 27th Amendment was still properly before the states, he led a letter-writing campaign to ratify it. Alabama became the 38th state to ratify the amendment, and it became the 27th amendment in 1992.
ERA proponents renewed their efforts to revive the ERA because of Watson’s success. But in his amicus brief, Watson argued that the ERA was different because Congress created a deadline for ratification that the 27th Amendment never had.
Today, a three-judge panel of the D.C. Circuit affirmed the district court’s decision to dismiss the lawsuit. The court reasoned that the plaintiff states did not establish that they had standing to bring the challenge. From here, the plaintiff states may either ask the entire D.C. Circuit to rehear the case en banc or ask the United States Supreme Court to hear the case.
Matt Clark, ACLL’s President, said, “After nearly 50 years of trying to get Roe v. Wade overruled, we finally succeeded in Dobbs v. Jackson Women’s Health Organization. But that success would have been short-lived if the plaintiffs would have succeeded in this suit. We are grateful that the D.C. Circuit rejected this attempt to illegitimately amend the Constitution and place the lives of the unborn in jeopardy.”
ACLL’s write-up of this case can be found here, and its amicus brief representing Gregory Watson can be found here.
ACLL is a conservative nonprofit legal organization based in Birmingham, Alabama, and it is the litigation arm of the Alabama Policy Institute. For more information, visit ACLL’s website at www.alabamalawandliberty.org.
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