Montgomery, AL – Alabama Attorney General Steve Marshall has sent a letter to President Joe Biden and U.S. Archivist Colleen Shogan, calling on them to uphold constitutional procedures regarding the expired Equal Rights Amendment (ERA). The letter, co-signed by Louisiana and South Dakota Attorneys General, emphasizes the need to honor a litigation agreement made with the Archivist in 2020 and adhere to legal precedent that the ERA expired decades ago.
The ERA, proposed by Congress in 1972, sought ratification by three-fourths of the states within a seven-year deadline. While 35 states initially ratified the amendment, the effort fell short of the 38 required, and five states later rescinded their ratifications. The amendment’s deadline passed in 1979, and courts have consistently ruled that the ERA cannot be revived without reintroduction.
Marshall’s letter responds to reports of efforts to pressure the Biden administration to certify and publish the ERA as the 28th Amendment to the U.S. Constitution. He criticized such moves as ignoring established legal precedent and violating constitutional norms.
“The ERA of 1972 failed to gain the necessary support from the states before its deadline, and no court has since held that the deadline can be retroactively disregarded,” Marshall stated. “Efforts to pressure the President and Archivist to circumvent the rule of law and sneak the ERA into the Constitution ignore this reality.”
Key Points in the Letter
- Legal Precedent and Expiration of the ERA
The ERA expired in 1979, as confirmed by multiple court rulings. Even Justice Ruth Bader Ginsburg, a supporter of the amendment, acknowledged that the 1972 ERA is defunct and would require reintroduction. - Binding Agreement with the Archivist
In 2020, Alabama, Louisiana, and South Dakota filed a lawsuit prompting an agreement with the U.S. Archivist. This agreement stipulates that the ERA cannot be certified without a court order or Department of Justice guidance. Certification would not be possible until at least January 2025, even if such guidance were issued today.
Potential Policy Implications
The letter also warns of unintended consequences if the ERA were unlawfully certified. Drawing from state-level ERA interpretations, Marshall and his counterparts argue that it could mandate significant changes to policies on women’s sports, shelters, state prisons, and college housing.
Past Legal Decisions
Federal courts have upheld the ERA’s expiration and the validity of ratification deadlines. The U.S. District Court for the District of Columbia dismissed a 2020 lawsuit attempting to compel certification of the ERA, a decision later affirmed by the D.C. Circuit Court of Appeals.
Marshall’s letter concludes with a call for respect for constitutional processes, urging President Biden and the Archivist to reject attempts to bypass the rule of law.
