On Friday, Virginia Attorney General Jason Miyares (R) sensibly withdrew the state from a lawsuit against reality. Under the previous, progressive administration, Virginia had joined Nevada and Illinois in suing the national archivist to recognize the Equal Rights Amendment (ERA), approved by Congress in 1973. These three states argued that their ratification of the ERA brought the total number of ratifying states up to the constitutionally required threshold.
The only problem is, the states' efforts were as misguided as the ERA is dead. The 1973 legislation which approved the ERA also included a sunset clause. "It was specific, and it would only work for seven years," explained Senator James Lankford (R-Okla.) on Washington Watch. Congress later extended the deadline once to 1982. When that deadline passed, only 35 states, out of the necessary 38, had passed the ERA. The ERA was officially dead.
Thirty-five years after the ERA died, progressives disturbed its rest in hopes of reanimating its cadaver. Through shifting demographics and political voting patterns (one reason for sunset clauses on Constitutional amendments in the first place), progressives now controlled several states that had never passed the ERA. They invented the myth that all that was required for the ERA to join the 27 legitimate constitutional amendments was for these three states, Nevada, Illinois, and Virginia, to ratify it and it would be so.
That myth has faceplanted in cold, hard reality. "Congress has constitutional authority to impose a deadline for ratifying a proposed constitutional amendment.... Congress may not revive a proposed amendment after a deadline for its ratification has expired," argued the Trump administration's Justice Department Office of Legal Counsel. The Biden administration's Office of Legal Counsel agreed, "the ERA Resolution has expired and is no longer pending before the States." Even the late progressive icon on the Supreme Court, Justice Ruth Bader Ginsburg, said the ERA would have restart the entire process. "I would like to see a new beginning."
It gets worse. Five states have rescinded their ratification of the ERA -- Idaho, Kentucky, Nebraska, Tennessee, and South Dakota. Ginsburg argued, "if you count a latecomer on the plus side, how can you disregard states that said, 'we've changed our minds'?" Lankford explained that progressives "say time limits don't matter, and all the states that rescinded their vote... don't matter because [they] want to just be able to get this." There is no deeper logic or reasoning to their claims; they just want it. Progressives do not consider themselves beholden to the letter of the law when they smell an opportunity to advance their agenda.
Speaking of progressives' agenda, the ERA would accomplish little else. Although it seems to protect against discrimination "on account of sex," the real impact would be to elevate the LGBT agenda to constitutional equality with rights like religious freedom. Both the Biden administration and the Supreme Court have tortured the definition of "sex" to include the entire LGBT agenda, not to mention abortion. Already LGBT claims often receive preferential treatment over constitutional rights like religious freedom. Just imagine the havoc this would wreak if the LGBT agenda could run roughshod over religious rights while wrapped in a cloak of constitutional legitimacy. This is the issue at the heart of the ERA controversy.
In response to progressive posturing, Lankford and several colleagues laid out all the reasons why the archivist should not simply declare the non-ratified amendment to be part of the Constitution. "Don't do it. Don't break the law. Don't ruin your position and your tradition.... When you've been the person actually protecting those sacred documents, don't walk away from them."
