A federal judge in Boston last week threw out a lawsuit seeking to compel the United States Archivist to add the 1970s-era Equal Rights Amendment (“ERA”) to the Constitution. Judge Denise Casper of the United States District Court for the District of Massachusetts dismissed for lack of standing the case brought by the left-wing feminist group Equal Means Equal.

The group filed the lawsuit earlier this year, claiming that Virginia’s approval of the ERA in January 2020 — almost fifty years after Congress sent the amendment to the states for consideration — ratified the proposal. 

To become part of our governing charter, proposed amendments must be approved by super-majorities of both Congress (⅔) and the states (¾).  The Congress that passed the proposed ERA in 1972 did so pursuant to a resolution deeming the amendment effective only if approved by three-quarters of state legislatures within seven years.  

Although 35 states passed the measure in time, 38 were needed for passage.  ERA proponents came up short by three. 

Equal Means Equal claimed that the seven year deadline is invalid and that 38 states have now approved the amendment (even though the legislatures of Idaho, Nebraska, Tennessee, Kentucky, and South Dakota long ago rescinded their ratifications.)

In dismissing the case, Judge Casper held that plaintiffs lacked standing to pursue the claim because they were not in any way injured by the Archivist’s failure to add the ERA to the Constitution.

The suit was largely a publicity stunt by feminist lawyer Wendy Murphy, who filed the case on behalf of the plaintiffs. It is well known that activist groups may not sue the federal government to demand that they adopt particular policies.

The real action, with respect to ERA litigation, is taking place in the U.S. District Court for the District of Columbia, where Democratic Attorneys General have also asked the federal court to bootstrap the half-century old ERA to the Constitution.  Republican Attorneys General have intervened in the D.C. case, Virginia v. Ferriero, asking for a ruling that the amendment expired last century.

Independent Women’s Law Center has filed an amicus brief in the D.C. case. IWLC argues that it would undermine democracy to add the proposal to the Constitution now when more than 62% of today’s voters were either not born or too young to vote when the ERA was debated by the states.