Illinois Takes Equal Rights Amendment to Court of Appeals Capitolnewsillinois.com



Illinois Attorney General Kwame Raoul. (Capitol News Illinois file photo)

AG Raoul joins Nevada to seek federal recognition order

By PETER HANCOCK
Illinois Capitol News
[email protected]


SPRINGFIELD — Illinois state attorneys joined their colleagues in Nevada and Virginia on Wednesday in asking a federal appeals court to declare the Equal Rights Amendment legally ratified in as long as 28e amendment to the US Constitution.


“I have a daughter who intends to practice law, and the Constitution which she will pledge to protect should also fully protect her,” Attorney General Kwame Raoul said in a statement released after the closing arguments. “Until the United States Constitution reflects our society’s commitment not to turn back the clock, none of us should stop fighting for equality.”


Illinois Solicitor General Jane Notz argued the state’s case in the appeals court.


The push for an amendment banning discrimination on the basis of sex was first proposed in Congress in 1923. But it wasn’t until 1972 that an amendment was finally approved by both houses of Congress by a majority two-thirds and has been sent to States for ratification.


The proposed amendment reads: “Equal rights under the law shall not be denied or restricted by the United States or any state on the basis of sex.”


In this case, it is a clause of the original resolution this says it would become valid when ratified by three-fourths of the states “within seven years from the date of its submission by Congress”.


Thirty-eight states are needed to ratify an amendment, but when the deadline expired in 1979, only 35 states had ratified the amendment, and six of those had taken subsequent votes to rescind their approval of the amendment.


At one point, Congress attempted to extend the deadline to 1982, but this was quickly challenged in court and before the United States Supreme Court could hear arguments in the case, the extended deadline expired.


Years later, in 2017, Nevada became the first state to ratify the amendment after the deadline. Illinois followed suit in 2018 and Virginia voted to ratify the amendment in 2020, making it the 38e State to vote for ratification.


Shortly after Virginia’s vote, Illinois and Nevada joined Virginia in filing a lawsuit asking National Archivist David Ferriero to publish and certify the amendment as part of the U.S. Constitution. .


But in a March 2021 ruling, a federal judge dismissed the case, saying among other things that the Archivist’s certification would have no legal effect, and so his refusal to certify caused no harm to plaintiffs and that Congress was within the limits of its power to set a time limit for ratification.


Illinois and Nevada have appealed this decision. Virginia did not participate in the call.


In the United States Court of Appeals for the District of Columbia, Illinois and Nevada argued that the lower court got its decision wrong.


They argued that the process for ratifying constitutional amendments is set out in Article V of the Constitution, which says nothing about whether Congress has the power to set deadlines for ratification. They also argued that the Constitution is silent on whether states can rescind their ratification of an amendment after they have already voted to do so.


Ferriero was joined by five states opposed to the amendment – ​​Alabama, Louisiana, Nebraska, South Dakota and Tennessee – arguing that the ERA had not been duly ratified.


They argued that Congress has the right to set deadlines for ratification and, in fact, has used a seven-year deadline on several occasions, starting with 18e amendment establishing prohibition, ratified in 1919.


They also argued that states have the right to rescind their ratification if a proposed amendment does not meet the three-quarters threshold within a reasonable time.


“They did not intend ERA to float in the ether for eternity,” the lawyers wrote in their memoirs. “Simply put, the world is different today than it was in 1972. Almost all of the lawmakers who voted to ratify ERA are either dead or no longer in office. Even the youngest eligible voter that year would be nearly 70 by now.


Finally, they also argued that the Equal Rights Amendment itself was not really intended to prevent discrimination on the basis of sex, but rather to “create a federal constitutional safety net for the right to abortion”.


A panel of three court judges took the case under advisement but did not say when they would issue a ruling. Regardless of how they rule, the case is almost certain to be appealed to the United States Supreme Court.


“We are grateful to the attorneys general for pursuing this important litigation,” Zakiya Thomas, president and CEO of the ERA Coalition, said in a statement. “The ERA has met all of the constitutional requirements for an amendment, and the Archivist has a legal duty to publish it. Publication will officially notify all 50 states that the ERA is now the Twenty-Eighth Amendment.



Capitol News Illinois is a nonprofit, nonpartisan news service covering state government and distributed to more than 400 newspapers statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.




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