January 26, 2022

Cortez Masto Calls for Justice Department to Clear Hurdle for Equal Rights Amendment

Washington, D.C. – U.S. Senator Catherine Cortez Masto (D-Nev.) called on the U.S. Department of Justice (DOJ) Office of Legal Counsel (OLC) to withdraw an opinion standing in the way of the Equal Rights Amendment’s (ERA) recognition as the 28th Amendment.

Since its approval by the House of Representatives and the Senate in 1971 and 1972, respectively, the ERA has reached the constitutionally required threshold of ratification by three-fourths, or 38 states. The ERA text requires the amendment take effect two years after the final state’s ratification; tomorrow marks two years since Virginia became the 38th state to sign on.

“It is inexcusable that in the year 2022, women and girls still cannot find a guarantee of equality under the law reflected in their own Constitution,” the lawmakers wrote to Assistant Attorney General Christopher H. Schroeder. “Ratifying the ERA would make protections for women and girls permanent, enshrining in our Constitution the guarantee to equality under law on the basis of sex, once and for all.”    

The 2020 OLC opinion cited an arbitrary time limit Congress included in the preamble of the ERA resolution—but not in the text of the resolution ratified by the states—to claim that ratifications by the final three states of Nevada, Illinois, and Virginia were moot. The OLC opinion also concluded that the only way for the ERA to be ratified at this point is to reintroduce it and start the entire process from scratch, after decades of effort. Prominent constitutional legal scholars have issued an analysis finding the OLC opinion is legally flawed and must be withdrawn.

“Any action to deny the basic recognition of sex equality demands a robust justification on policy and legal grounds. The January 2020 OLC opinion falls far short of this high standard,” the lawmakers wrote. “Article V lays out the amending process. It does not say anything about deadlines. It simply states that an amendment becomes valid when ratified by three-fourths of the state legislatures.” 

The lawmakers concluded by calling on the OLC to reverse the opinion and allow for the Archivist to carry out his ministerial duty of recognizing the complete and final adoption of the ERA.

“After generations of fighting for the ERA, sex equality deserves a permanent home in the Constitution. A flawed opinion from the OLC must not be allowed to stand in the way of their rights… It is long past time to bring the United States Constitution into the 20th (let alone the 21st) century by expressly recognizing equality on the basis of sex.”

The full text of the letter is here.