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Murphy: Biden finds a way to fumble to the end

WendyMurphy — Wed, 22 Jan 2025 02:11:00 +0000

Murphy: Biden finds a way to fumble to the end WendyMurphy Tue, 01/21/2025 - 21:11

Wendy Murphy, Boston Herald -- Biden Finds Way to Fumble to the End

This article originally appeared in the Boston Herald and is posted here with the author's permission. Photo Credit: Wendy Murphy, Esq.

January 20, 2025. Last Friday, Joe Biden declared the Equal Rights Amendment our Twenty-Eighth Amendment, even though presidents have no authority to declare the validity of amendments.

Under Article V of the Constitution, an amendment becomes law when the last of three-fourths of the states ratifies it. For the ERA, that date was January 27, 2020 — yet when Biden took office in 2021, he said the ERA was not valid, and he fought against it in two federal lawsuits. When he inexplicably changed his mind last week, not one member of the media asked about the lawsuits.

Senator Kirsten Gillebrand gave a press conference to explain why she thinks Biden can declare the ERA valid. She said the states validate new amendments and that Biden was just letting them know that they had done their job. Umm, Okay. She also invoked John Adams and said that he had declared the Eleventh Amendment valid, so Biden could do the same. In fact, Adams spoke to Congress about the Eleventh Amendment being valid in 1798, some three years after it was actually validated by the states.

Curious people wondered aloud on Friday why Biden made a statement on his last day, and why seemingly smart people like Harvard’s Larry Tribe said Biden had authority to validate the ERA when 99% of scholars say he doesn’t. Suspicious people could see what was really going on.

Biden’s statement was intended to provoke lawsuits about the ERA, one of which will swiftly find its way to the Supreme Court. This will ensure that women never achieve equality in America regardless of the ERA because of a little-known Supreme Court case called Skrmetti.

Skrmetti involves a Tennessee law that bans medical procedures, such as puberty blockers, for kids. Biden’s Justice Department sued Tennessee in 2023, arguing that the ban discriminates against transgender people. The lower court upheld the law after reviewing it under a “rational basis” test – the lowest level of judicial review for discrimination cases. The case was then appealed to the Supreme Court where Biden’s DOJ argued that “rational basis” was not fair and that the court should have applied a stricter “intermediate scrutiny” standard.

Here’s where it gets bad for women. Biden’s DOJ said trans people deserve intermediate scrutiny because transgender is “derived” from sex and sex gets intermediate scrutiny. Other categories, such as race and ethnicity, get a much better standard known as “strict scrutiny.” Under strict scrutiny, virtually all forms of discrimination are illegal. Under intermediate scrutiny, a lot of discrimination is allowed, which is exactly why women have been fighting so hard for the ERA. The ERA requires strict scrutiny. But there’s a catch. Women only get strict scrutiny IF sex is considered “immutable,” meaning it cannot be changed.

Here’s where the transgender case comes in. When the Supreme Court heard arguments in Skrmetti last fall, Justice Alito emphasized that transgender falls under the legal category of sex and is mutable because a trans person can declare themselves female today, male tomorrow, and female again after that.

Alito made clear that the Supreme Court will soon rule that because transgender falls under the meaning of sex, sex is mutable. Once this happens, women will never achieve full equality, regardless of the ERA, because people with mutable characteristics get only intermediate scrutiny.

Right after Biden issued his statement, Gillebrand called on lawyers across the country to start filing lawsuits asking courts to enforce the ERA as valid. Mind you, she did not ask lawyers to file lawsuits after the ERA was ratified in 2020. She waited five years and is asking now even though the DC Circuit Court of Appeals ruled in 2023 that the ERA is not valid because its ratification deadline expired decades ago. She wants lawyers to disregard a ruling of the second highest court in the land because Biden made a statement.

Gillebrand didn’t explain why the Biden Administration didn’t at least ask the Supreme Court for strict scrutiny in Skrmetti. What kind of lawyer asks the Supreme Court for second class rights — for anyone? Answer: a lawyer with an agenda that has more to do with destroying the ERA than protecting transgender people.

Funny thing, in addition to the two ERA lawsuits Biden fought against during his presidency, several additional lawsuits were filed after 2020, insisting that courts enforce the ERA as valid, but Gillebrand did nothing to help. They were filed in Michigan, New York, and Rhode Island, states where Democrat Attorneys General had declared, as Biden did last Friday, that the ERA is valid. Women expected those AGs to settle the lawsuits by agreeing that the ERA is valid, but they fought against the ERA instead. Yet Gillebrand thinks more lawsuits should be filed and it just so happens that Skrmetti is now available to mess things up.

The irony is unbearable. Politicians are screaming from the rooftops that the ERA is valid while simultaneously igniting a litigation strategy to destroy women’s equality. They think women are too stupid to see what they’re doing but they’re wrong. Women will rise up in anger, and we will never forget that it was Biden who finally killed the ERA.

Wendy Murphy is an attorney and longtime victims’ advocate.

Wendy Answers Questions re Reproductive Rights, Criminal Cases, and More 7-2024

WendyMurphy — Thu, 11 Jul 2024 22:52:00 +0000

Wendy Answers Questions re Reproductive Rights, Criminal Cases, and More 7-2024 WendyMurphy Thu, 07/11/2024 - 18:52

We have the voting power to hurt Biden, and we will, because he’s hurting us

WendyMurphy — Fri, 17 May 2024 15:48:00 +0000

We have the voting power to hurt Biden, and we will, because he’s hurting us WendyMurphy Fri, 05/17/2024 - 11:48

When Harvey Weinstein’s rape conviction was overturned last month, women were outraged, not only because a man accused of sexually assaulting nearly 100 women was exonerated, but also because of why the court ruled the way it did.

The court said Weinstein did not get a fair trial because in addition to the three victims whose cases were part of the formal charges, three other women that Weinstein had sexually violated were also allowed to testify. This violated Weinstein’s rights, the court said, because instead of focusing on the evidence in the case, it painted Weinstein as a bad man who has a propensity to harm women.

We have the voting power to hurt Biden, and we will,
because he’s hurting us -
and thanks to Alice Paul, we know how to play hard ball.

This issue in the law - known as the prior bad acts rule - refers to how courts treat evidence that is relevant, but also prejudicial. For example, if a man is charged with arson of his home, and cops learn during their investigation that the man previously filed a false insurance claim involving a car accident, one could argue that the false insurance claim is fair game to use against him in the arson case because it shows that he had a financial motive to burn the house down. But there’s a difference between a false insurance claim and an arson case, and a jury should not find a person guilty just because they think he’s the type of person who has a propensity to steal things for money. A judge must balance how helpful the evidence is against how harmful it is. To determine helpfulness, the court first looks at what the prosecution must prove to win its case. In the arson example, the prosecution must prove that the man unlawfully set fire to his home. They do not have to prove that he had a specific motive or intent, so his reason for committing the crime isn’t critical to the case, even though it is relevant. Likewise, in Weinstein’s case, the prosecution did not have to prove that the Hollywood mogul had a specific motive or intent when he raped women, so reasonable judges can disagree about whether the prior bad acts evidence should be admitted. The trial judge and the lower appellate court said the evidence was fair game; New York’s highest court disagreed.

There would have been no room for disagreement among the judges, and Weinstein’s convictions would not have been overturned if, in addition to the sexual assault charges, the prosecution had charged Weinstein with a hate crime. Under New York’s hate crime statute, the prosecution would have been required to prove that Weinstein “intentionally select[ed] the person against whom the offense [wa]s committed … in whole or in substantial part because of a belief or perception regarding the …. gender … of [that] person” or because the act was “commit[ted]” because of that belief or perception.

With a hate crime charge in place, the trial judge would have been mandated to let the other women testify, because the prosecution was obligated to prove that Weinstein “intentionally selected” women as his victims, and that he was motivated to commit his crimes because of his “belief or perception” regarding women and his sense of entitlement to commit his crimes because his victims were female.

Evidence that Weinstein was guilty of a hate crime was overwhelming and included not only that he targeted women but also that he told his victims they must submit to his sexual demands because “this is how this industry works.” A hate crime charge would have prohibited the appellate court from overturning Weinstein’s convictions because the other women’s testimonies were necessary to prove the basic elements of a hate crime charge. Put another way, evidence cannot be excluded as “too prejudicial” when it goes to the heart of the charge.

The question now is, will Manhattan District Attorney Alvin Bragg add a hate crime charge when he prosecutes Weinstein again? The new trial is scheduled to start in the fall. Between now and then, Bragg owes women answers to questions such as, why wasn’t Weinstein charged with a hate crime the first time? If Weinstein had hurt the same number of Black, Jewish, or Asian people, and told them that he was raping them because “that’s the way the industry works,” he would have been charged with a hate crime. Why would Bragg discriminate against women by not adding a hate crime charge? The hate crime law says that women are entitled to protection against hate crimes. How can women be protected if charges aren’t filed? If Weinstein doesn’t deserve a charge, who does? How many women must one man attack before he deserves a hate crime charge?

Maybe women should just accept that men like Weinstein will never be held accountable. After all, things have been going downhill for women ever since his conviction in 2020. On June 30, 2021, another wealthy entitled serial rapist from Hollywood named Bill Cosby had his conviction overturned just three years after he was found guilty of rape and incarcerated. He and Weinstein together victimized more women than all of Jeffrey Epstein’s henchmen combined, but the legal system imposed punishments that fit the crime of shoplifting.

The Supreme Court then decided Dobbs in 2022, ruling for the first time in history that pregnant women have no constitutional rights whatsoever over their bodies, even if the pregnancy happens during a gang rape by fifteen men, at gunpoint, and the victim’s eyes are gouged out during the crime. Welcome to America.

If the women’s movement can’t get a guy like Weinstein charged with a hate crime, it isn’t a movement at all. While millions of dollars were being spent on Time’s Up and #MeToo, presumably because of Weinstein, not a dime went to the issue of hate cries against women, even though women suffer more hate crimes than all other categories of people combined. Worse, zero money was spent fighting for women’s basic legal equality. It’s as if nobody in the women’s movement understands that women are sexually victimized at very high rates because they do not yet have equal rights under the Constitution. Women have been fighting for the Equal Rights Amendment (ERA) for more than 100 years, we even got it ratified in 2020, but it isn’t in the Constitution yet because the Trump Administration blocked it. We thought putting Biden in the White House would unblock the ERA because Biden said he supported it, but then he blocked it, too, the same way Trump did. If the money wasted on #MeToo and Times Up had been spent pressuring Trump and Biden to stop blocking the ERA, instead of the nonsense it went to, our Constitution would now include women as equal citizens. In turn, men who target women for violence would routinely be charged with hate crimes because it would be unconstitutional not to charge them.

The ERA would raise the status of women under all laws, overnight, across the board. Women could stop wasting time fighting for meager statutory reforms that are then unequally enforced in the courts. The ERA would require equal treatment of women by all government officials and under all laws.

Until the ERA is in the Constitution, women’s inequality will remain a gushing wound that sucks the lifeblood out of this nation. Until the ERA is in the Constitution we will continue to watch serial rapists stick their middle fingers up to their long lines of victims. Until the ERA is in the Constitution, women will suffer rape, domestic abuse, and femicide at unconscionable rates.

There is hope, however, because Alice Paul’s legacy is alive and well. When she was fighting for the ERA between 1923 and 1977 (the year she died), as founder of the National Woman’s Party, she knew that women had to be fiercely nonpartisan in order to hold both sides accountable. Democrats and Republicans alike resisted Paul’s demands and told her about all the other things they would do for women, but she told them to shut up and listen. She told them what women wanted and warned that if they didn’t accede to women’s demands they would lose elections. She was right, which is exactly why women today are following Alice Paul’s strategy. Democrats keep telling women they should care about and vote about abortion, but women are telling them to shut up and listen. Women are not prioritizing abortion, they want the ERA because it fixes abortion rights, rape laws, equal pay laws, and everything else. Democrats know this, just as they know Biden is still blocking the ERA, and that if he doesn’t unblock it before November, Trump will win.

Women are not interested in party politics. We are laser focused on the space between equality and inequality, because that’s where violence against women happens with impunity under the law. It’s the space where Cosby and Weinstein got their legal entitlement to rape women over and over again, without fear of consequence. It’s the space where all laws fall through the cracks because it allows unequal treatment of women by all officials in all branches of government, state and federal, regardless of what the laws actually say. It’s the space where women are enslaved in second-class citizenship because Biden is blocking the ERA. If he continues, women will vote against him with a vengeance in November. We have the voting power to hurt Biden, and we will, because he’s hurting us - and thanks to Alice Paul, we know how to play hard ball.

The Equal Rights Amendment is the law

hesco — Sat, 16 Mar 2024 02:35:00 +0000

The Equal Rights Amendment is the law hesco Fri, 03/15/2024 - 22:35

The Equal Rights Amendment is the law
https://emanuelpastreich24.org/make-the-equal-rights-amendment-the-law/

Stop unconstitutional governance
Emanuel Pastreich, Independent Candidate for President, March 14th, 2024

When Virginia approved the Equal Rights Amendment in January 2020, the thirty-eight states demanded by the Constitution for legal ratification of an amendment was reached. Some foolishly assumed that when the Biden Administration took power, it would recognize the law in light of President Biden’s constant harping on the ERA, and also because his cabinet had made identity and diversity such key themes in their speeches. Such Americans were sadly mistaken. The unaccountable Biden administration is as unencumbered by the Constitution as the Trump administration was and the Equal Rights Amendment is treated by the executive and judiciary as if it did not exist.

Under President Biden, we face a dictatorship that masquerades as the restoration of the rule of law. The constitutional crisis resulting from Biden’s contempt for the Equal Rights Amendment represents the cold steel fist in a multicultural fluffy glove that is his administration.

Bella Abzug and others March for the ERA

Following the Constitution, and federal law, the Biden administration has no say about whether the Equal Rights Amendment becomes the foundation for all debate on equality of citizens before the law. The executive branch is empowered to implement laws and regulations, the legislative branch is empowered to draft and approve laws and regulations and it has already approved the Equal Rights Amendment. The courts are responsible for determining that the laws are upheld.

Even more importantly, the corporate media, the pay-to-play public intellectuals promoted by big business, and other shadowy players who hire expensive lobbyists and PR firms have no role to play in the determination of policy or law.

The Equal Rights Amendment is already the law. Its content is fully supported by the vast majority of Americans. The Biden administration pretends the ERA is not the law because it does not care about working women, and because it is tasked by corporations with carrying out the slow demolition of the United States of America as a constitutional republic, and creating a political Disneyland that is driven by domestic repression wherein personalities or images in the mass media, not laws, legitimate the illegal actions of the government.

None of the corporations funding the Biden administration want a law like the Equal Rights Amendment to come into force that was not paid for by their stockholders. In other words, democracy must be repressed by any means necessary. Corporate rule, however, can be branded as democracy at any time.

None of this would be possible without the radical privatization of the Federal Government, launched by Bill Clinton and implemented by Dick Cheney.

The Equal Rights Amendment’s status as national law came to a head at the confirmation hearing for Colleen Shogan as national archivist on September 21, 2022. Ms. Shogan stated disingenuously that she would demur to the judicial branch concerning her findings that the Equal Rights Amendment had been ratified.

The legal reality is that Title 1 of United States Code, Section 106b, mandates that the archivist must publish to the Federal Register her finding concerning a constitutional amendment whenever the conditions laid out under Section V. of the U.S. Constitution have been met.

It is as simple as that. Neither the Biden Administration, the Congress, or the courts have a role to play.

But it is worse than this intentional misrule of government is what has been done by those supposedly defending women. Christian F. Nunes, national president of NOW (National Organization for Women) went as far as to endorse President Biden for reelection on August 25, 2023, without any conditions or demands, long before the convention, and in spite of his unconstitutional position regarding the Equal Rights Amendment.

We are looking at vested class interests that can barely hide their bloated forms behind the progressive clothing that they wear. Christian Nunes may be an African American woman, but she does not represent the concerns of ordinary working women. Rather she follows the demands of the establishment players who fund and promote NOW and other NGOs. It is not her job to stand up for the rights of all women, but rather to flatter her funders most of whom are indifferent to the needs of working citizens because their stock portfolios are essential for their comfortable retirements.

The real reason that the Equal Rights Amendment is not a priority, even after it has become the law, is that its protection for women could potentially apply to all women, including working women, poor women, women sweeping floors at Amazon, or forced to act in pornographic films. That is to say that the ERA could be used by citizens to fight exploitative practices of corporations—often explicitly aimed at women.

Nothing could be more threatening to the multinational corporations like Facebook, Google, and Oracle who pour their money into the Democratic Party while they work women to death in their factories at home and abroad.

It is great that we have millionaire women of different ethnicities in the Biden administration. I doubt that any corporate lawyers are staying up late at night worrying about that kind of identity politics.

But what if the Equal Rights Amendment is interpreted by a court as meaning that Walmart must provide daycare to all women employees? Do you think the multibillionaire Walton family will stand for that? Or will they send their lobbyists to the Biden cabinet and tell it who wears the pants? It seems likely that they have already done so.

And then there is the massive pornography and prostitution industries which now dwarf most other sectors and are rabidly defended at every turn by the IT multinationals who secretly have their snouts in that filthy trough. Those partners will never let the Biden people stand up for the Equal Rights Amendment because it might protect the women they exploit from their predations and thus cut deep into profits.

And then there are those who use the cover of “transgender” to undermine equal rights for women. They are afraid that this law might actually be used to defend women from psychological operations that subject women to sexual violence by men who pretend to be women—all part of a dumbing down and subjugation strategy aimed at citizens that is carried out by private intelligence firms using Homeland Security budgets. That covert war on women cannot tolerate an Equal Rights Amendment that could be interpreted as applying to all women.

No, under the Biden administration the rights of women to be protected from exploitation and discrimination applies only to those living in safe upper-middle class neighborhoods. None of the wealthy women of the Biden administration are willing to stand in solidarity with working women who must struggle to defend themselves from sexual assault at the factory or from discrimination by their supervisors; they do not stand with working women who are trying to protect their children. Most of those wealthy women with corporate backgrounds have never had to deal with these threats.

The Green Alliance for Sex-Based Rights has repeatedly pointed out that both the actions and the inactions of the Biden Administration have created a constitutional crisis, and are evidence of President Biden’s failure in his constitutional duty to see that the laws of the nation are faithfully executed. I uphold that position and I demand that the Equal Rights Amendment be accepted as the law.

Cori Bush Urges Merrick Garland Repudiate OLC Letter directing National Archivist to Ignore Statutory Duty to Acknowledge Ratification of Equal Rights Amendment

hesco — Sat, 23 Sep 2023 20:50:00 +0000

Cori Bush Urges Merrick Garland Repudiate OLC Letter directing National Archivist to Ignore Statutory Duty to Acknowledge Ratification of Equal Rights Amendment hesco Sat, 09/23/2023 - 16:50

Last week Representative Corey Bush (D, MO) used her 5 minutes to question Attorney General Merrick Garland as an opportunity to urge the repudiation of the Trump administration's Office of Legal Counsel's letter directing the National Archivist to ignore her statutory duty to acknowledge the ratification of the Equal Rights Amendment as the 28th Amendment to the U.S. Constitution.

Marianne Williamson Pledges Day One Action to Publish the ERA

hesco — Sun, 27 Aug 2023 07:02:00 +0000

Marianne Williamson Pledges Day One Action to Publish the ERA hesco Sun, 08/27/2023 - 03:02

Why We Need the ERA

Carol41 — Sat, 04 Mar 2023 22:32:00 +0000

Why We Need the ERA Carol41 Sat, 03/04/2023 - 17:32

Get the ERA brochure

The Equal Rights Amendment has now met the Constitutional requirements for ratification to become 'valid to all Intents and Purposes, as Part of this Constitution' of the United States. It did so by securing passage by each chamber in Congress with the support of a two thirds majority, and ratification by 38 of the 50 states constituting 'three fourths of the several States' as required by Article V. of the U.S. Constitution.

The ERA would end women’s second-class citizenship by finally giving women equal standing in the federal CONSTITUTION, thus would ensure women’s equal TREATMENT under all laws, regulations, and policies of state and federal governments.

The ERA would afford women equal treatment under the DUE PROCESS CLAUSE and the EQUAL PROTECTION CLAUSE, which affect all other rights including everything from obtaining a driver’s license to the First Amendment. These fundamental constitutional rights ensure that all people enjoy the most basic freedoms: autonomy, self-determination, authority over the self, bodily integrity, etc. Without the ERA, women cannot be assured that any rights will apply equally to them.

The ERA would require courts to use strict scrutiny when reviewing claims involving different treatment of women. Without the ERA, courts are allowed to use only intermediate scrutiny, which, unlike strict scrutiny, permits infringements on rights.

The ERA would protect abortion rights and literally save women’s lives by making it clear in the text of the Constitution, for the first time in history, that women are fully equal persons who can no longer be subjected to unequal treatment under any laws, including abortion laws.

The ERA would allow us to fight and reverse any sex discriminatory state or federal law, regulation or policy. The ERA specifically states that the Congress may pass legislation to enforce the ERA, which would mean Civil Rights laws would be amended to ensure women’s equal legal stature. Without the ERA women do not enjoy equal treatment under civil rights laws. For example, aside from employment, women are excluded from Title VI of the Civil Rights Act of 1964. ERA would fix this.

Under the ERA and strict scrutiny, women would still enjoy separate spaces and sex-based preferences that serve a compelling state interest, such as a need to address a history of discrimination.

The ERA would allow women to sue the government for unequal enforcement of rape and domestic violence laws, bias against women in family court, and courts enforcing laws requiring equal pay for women would have to construe the word equal to mean actually equal. Without the ERA courts can interpret laws requiring equal treatment to mean something less than fully equal. The ERA would enable women to assert stronger legal arguments against the commodification of women by surrogacy, pornography, prostitution, and sex trafficking.

According to Wendy Murphy, attorney for Equal Means Equal, “The ERA is more desperately needed in 2022 than ever before because of Dobbs” (the decision that overturned Roe). “Women’s pervasive status as second-class citizens enabled the Supreme Court to cavalierly take away all personhood rights of pregnant women. Women are literally the lifeblood of this nation, yet they are vulnerable to dystopian court rulings solely because they lack basic equality in the Constitution. The only solution is to fix the Constitution. The ERA does that.”

The ERA was ratified by the 38th state in January of 2020 and is now the law of the land, but, just like the Trump Administration, the Biden Administration is blocking the ERA from being published in the Constitution. Biden is also fighting against the ERA in federal court the same way Trump did. Please get the word out to pressure Biden to publish the Equal Rights Amendment Now!

#PublishERAJoe!

Why_We_Need_the_ERA_brochure.pdf

Attorney Mary Mahoney offers oral arguments for Elizabeth Cady Stanton Trust for recognition that ERA has already been ratified.

hesco — Mon, 27 Feb 2023 23:59:00 +0000

Attorney Mary Mahoney offers oral arguments for Elizabeth Cady Stanton Trust for recognition that ERA has already been ratified. hesco Mon, 02/27/2023 - 18:59

This is how Wendy Murphy described this hearing on her twitter feed:

Incredible job today in court by ERA Attorney Mary Mahoney from Michigan! Really powerful oral argument in support of the ERA and full equality for all #Women! Thanks to leading Women’s rights group Elizabeth Cady Stanton Trust for its fierce leadership!

Wendy Murphy hosted by Nora Stanton Blatch addresses National Votes for Women Trail Marker tour

hesco — Thu, 22 Dec 2022 18:58:00 +0000

Wendy Murphy hosted by Nora Stanton Blatch addresses National Votes for Women Trail Marker tour hesco Thu, 12/22/2022 - 13:58

Publish the ERA, Let the Skirmishes Begin

hesco — Wed, 21 Dec 2022 22:24:00 +0000

Publish the ERA, Let the Skirmishes Begin hesco Wed, 12/21/2022 - 17:24

Here is how former NYT journalist Maura Casey has weighed in on the issue on her Casey's Catch substack.

Publish ERA, let skirmishes begin

Time to settle whether imposed time limits are legal

I’m thrilled that President Joe Biden signed into federal law Dec. 13 a proposal to protect gay and interracial marriage. It’s an attempt to deter an increasingly conservative Supreme Court from stripping away those rights. We’ll see if it works.

What an outrage, then, that the president is fighting adding the Equal Rights Amendment for women to the constitution. He’s gone to court to prevent the ERA from being published by the National Archives and Records Administration. In this, he has followed in the footsteps of the man he refers to as “the former guy,” Donald J. Trump.

National ERA March for Ratification and Extension

Proponents say that the ERA was ratified in 2020 when Virginia became the 38th state to pass it, despite time limits imposed by Congress years ago. More on that in a minute. Publishing the amendment is a crucial, if bureaucratic, step to send a ratified amendment to the states and add it to the Constitution. The head of the National Archives - the keeper of the nation’s file cabinets - is tasked with this job. But Trump and now Biden have fought to keep that from happening.

“The ERA has become a victim of the very discrimination it was written to prevent,” said Massachusetts attorney Wendy Murphy.

Murphy is director of the Women’s and Children’s Advocacy Project at New England Law/Boston. In January of 2020, on behalf of the nonprofit organization Equal Means Equal, Murphy filed a federal lawsuit in Massachusetts to compel publication of the ERA. The judge dismissed the case for lack of standing, stating that those who brought the lawsuit didn’t prove that they had suffered harm that would be protected by the ERA. Right after Murphy sued in 2020, the last three states to ratify the ERA, Virginia, Nevada and Illinois, also sued. Their suit, too, was dismissed for lack of standing.

In September. the U.S. Court of Appeals for the District of Columbia heard the states’ appeal. The Biden administration went on record in court opposing publication of the ERA. No ruling has been handed down, but the judges’ comments were not encouraging.

In 1975, I went to the polls for the first time and cast my very first vote in favor of adding an Equal Rights Amendment to the New York State constitution. That measure lost by 400,000 votes. It was the canary in the coal mine, a sign of the coming opposition to the federal ERA, much of it galvanized by unwarranted fear and false information. Yet I was convinced that passing the Equal Rights Amendment nationwide was only a matter of time.

Nearly 50 years later, I’m still waiting.

The amendment has fewer than 60 words:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex.

Sec. 2 The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Sec. 3 This amendment shall take effect two years after the date of ratification.

That’s it.

According to the text of the amendment, the ERA should have become part of the constitution in January, two years after Virginia ratified. It could have prevented Roe v. Wade from being overturned, one reason why right-leaning states oppose it so strongly.

The biggest barrier? Time limits.

The Equal Rights Amendment passed Congress in 1972 after having been introduced every year for nearly 50 years. But Senate opponents tacked on to the preamble of the joint resolution passing the amendment a seven-year time limit for states to ratify the amendment.

When the amendment stalled after 35 of the needed 38 states ratified, the seven-year time limit was extended for another three years. When the second time limit expired, opponents of women’s equality danced on what they assumed was the grave of the ERA.

After all, opponents crowed, such a radical amendment would allow gay people to marry. And women, fragile flowers that they are, could be sent into combat.

Well. Fast forward to the present day. Gays are marrying in droves, and good for them. Female soldiers have fought, bled and died in combat. The Constitution still doesn’t guarantee women equal rights.

Hundreds of legal experts and a number of U.S. senators don’t think that the ERA ever died. That it is currently the 28th amendment to our Constitution.

Prominent constitutional scholars argue that the ERA time limit was advisory only, as it was not in the text of the amendment. They also say that the five states which rescinded their approval of the ERA many years after approving it have no settled right to rescind (at least two states tried to rescind the 14th amendment, to no avail). Article V, which lays out precisely the steps to add an amendment to the Constitution, says nothing about time limits. Congress added them for several amendments in the 20th century to increase its own power and control. But those time limits were all added to the text of those amendments. Not so the ERA.

Congress passed amendments to the Constitution with time limits in the text of the 18th Amendment, prohibiting the sale of alcohol, repeal of Prohibition (the 21st Amendment) and Amendments 22 and 23, both concerning the presidency.

Here’s the infuriating part. In 1992, states ratified the 27th Amendment to the Constitution affecting congressional compensation. First passed by Congress in 1789, the amendment drifted around for 203 years before approval.

Really? The topic of congressional pay can hang around for two centuries before passage, but the rights of half the country had a seven-year deadline? Please.

So, now what?

The ERA needs to be published. Then we can all make popcorn and watch the legal skirmishes commence. But once published, it will be up to conservatives to prove why equality for women should continue to be excluded from the constitution of the world’s oldest democracy.

Let the games begin, President Biden. What are you afraid of?

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