NFDW 2022 position paper on era (1)

1. NFDW
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In Support of the Equal Rights Amendment to the US Constitution
The National Federation of Democratic Women (NFDW) supports
efforts to ensure the Equal Rights Amendment (ERA) is recognized as
ratified1 and now part of the United States Constitution. The ERA guarantees
that “(e)quality of rights under the law shall not be denied or abridged by
the United States or by any state on account of sex.”2 Its passage is
included as a priority in the National Democratic Party Platform3 and
supported by President Joe Biden and his administration.
Sex-based discrimination continues to be pervasive in the forms of
rape and domestic violence assaults; workplace and wage discrimination;
health care inequities; disparate rates of poverty; and a lack of political
parity. These human and civil rights violations disproportionately affect
women and are particularly compounding issues for Black women, Latinas,
Indigenous and Native American women, immigrants, LGBTQ+ women,
single mothers, and women in the military services.4
State laws and federal laws are not uniform or comprehensive and
can be repealed or arbitrarily enforced or interpreted, and the 14th
Amendment's equal protection clause has never been interpreted to
guarantee equal rights for women in the same way the ERA would.
Dissenters erroneously claim that there will be unintended consequences of
the ERA causing removal of existing protections. In fact, distinctions can be
made under strict judicial scrutiny, thus maintaining existing protections.
Additionally, Section 2. of the ERA further provides for Congress to be able
to enact laws to address discrimination.
The last three state ratifications of the thirty-eight needed to pass the
ERA were procured--Nevada in 2017, Illinois in 2018 and Virginia in 2020.
However, the National Archivist refused to publish and certify the
ratifications without a court order based on a 2020 opinion from the Office of
Legal Counsel (OLC), US Department of Justice, which was challenged as
faulty. This refusal prompted the Attorneys General of the ratifying states to
sue in the US District Court for DC. The court granted a request by the

2. NFDW
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Trump Administration and Republican Attorneys General to dismiss the
lawsuit because of supposed issues with jurisdiction and standing.5
Responding in January 2022, the Attorneys General from the ratifying
states filed an opening brief with the US District Court of Appeals for DC
challenging the lower court’s decision, concluding with, “This appeal is not
merely about State standing or the meaning of Article V. It is about who we
are as a Nation. Thirty-eight States have voted to make the Constitution
‘more perfect’ with an express recognition of sex equality. Those votes
should be respected.”6
Later that January, the OLC issued a new memorandum that the 2020
opinion was not an obstacle to Congressional action on ratification or to
judicial consideration of constitutional questions on the status of the ERA.
President Biden issued a statement calling on Congress to act immediately to
pass a resolution recognizing ratification of the ERA. H.Res. 891 was
introduced resolving that in the sense of the US House, the ERA had met the
necessary requirements and become valid as the 28th Amendment.7
The NFDW calls on the OLC to withdraw the 2020 opinion, the
National Archivist to publish and certify the ERA as the 28th Amendment to
the US Constitution, and Congress to act immediately to pass H.Res. 891
recognizing ratification of the ERA. The NFDW also supports efforts to pass
S.J.Res. 1, joining the US House in lifting the time limit to remove any
questions about timing of ratifications.
Contributors:
Marena Groll, Chair, ERA Legislative Subcommittee
Linda Stover, Southern Regional Lead, ERA Legislative Subcommittee
Audrey Dempsey, Western Regional Co-Lead, ERA Legislative Subcommittee
Jeri Burton, Western Regional Co-Lead, ERA Legislative Subcommittee