Virginia v Ferriero

“Isn’t there a court case about the 28th Amendment (Equal Rights)?”

  • Yes! In 2012, the National Archivist, David Ferriero, sent a letter (click here to review) to Representative Carolyn Maloney outlining the process for amending the Constitution. In this letter Mr. Ferriero indicated he would record the remaining three ratifications and certify the 28th amendment (Equal Rights). Unfortunately, in 2020 the National Archivist recorded Virginia’s ratification as promised, but did not certify and publish the 28th Amendment.
  • Virginia v Ferriero is the case brought by the Attorneys General in the last three states to ratify (Nevada, Illinois, and Virginia) to compel the National Archivist (David Ferriero) to recognize the 28th Amendment (Equal Rights) in the U.S. Constitution. This case was filed in the U.S. District Court for the District of Columbia.
  • The entire case, in a nutshell, is one big question about Article V of the Constitution, which outlines the amending process.
  • Below are all the court filings in this case make for fascinating reading, particularly the amicus briefs regarding the motion to dismiss.

Court Documents

If your reading time is limited, we believe these briefs are particularly compelling:

Original Complaint

This case is, generally speaking, a writ of mandamus which is a fancy way of saying the plaintiff states are suing to compel the National Archivist to do his job. The National Archivist is the nation’s librarian and his duty is purely administrative / ministerial. The plaintiff states seek to compel him to publish the U.S. Constitution with the 28th Amendment. 
Link to complaint

DECISION (ON HOLD):
The court will hold a hearing and rule on the motion to dismiss and the motions for summary judgment at the same time. The court will not rule on the complaint itself until after it has ruled on the motion to dismiss and the motion for summary judgment.


Motion to Intervene

AL, LA, NE, SD and TN request to join the defense
Link to the motion

Plaintiff states’ motion to deny intervention
Link to memorandum

AL, LA, NE, SD and TN response to the motion to deny their intervention
Link to the reply memorandum

DECISION MADE:
Alabama, Louisiana, Nebraska, South Dakota, and Tennessee were approved as interveners (link to memo order).
NOTE: Should the Department of Justice withdraw in the future, these five states may continue their defense of the case without the DOJ.


Motion to Dismiss

Defendant’s motion to dismiss
Summary: Plaintiffs lack Article III standing; rescission of a ratification is not ripe for review; Plaintiffs’ claims would require the court to answer a political question; Plaintiffs do not meet legal requirements for mandamus jurisdiction Link for motion

Plaintiff states’ opposition to the motion to dismiss
Summary: This court has the power to review and rectify the Archivist’s overreach; the purported deadline in the congressional resolution does not invalidate the Plaintiff States’ ratifications of the Equal Rights Amendment; the Plaintiff States have satisfied other requirements for mandamus relief
Link to opposition to the motion to dismiss

Defendant’s reply in motion to dismiss
Plaintiffs fail to demonstrate a concrete injury; rescissions are not ripe for review; issue is political; failure to satisfy the required elements for mandamus relief
Link to reply

Amicus Briefs

…in support of plaintiff states

NV, IL and VA equality advocacy groupsLink to brief
Summary: Plaintiff states have Article III standing to compel the archivist to add the 28th Amendment; Article V mandates inclusion of the 28th Amendment; Article V does not grant authority to rescind a ratification

Equality Now and other international equality advocacy groupsLink to brief
Summary: International norms include express constitutional guarantees of gender equality; the US is required to adopt the ERA to comply with treaty requirements; the US should adopt the ERA to comply with international law and human rights standards 

ERA CoalitionLink to brief
Summary: Fight for equality has been long and hard, as advocates have struggled to correct the Framers’ intentional exclusion of women; women today face persistent inequality in nearly every sphere – inequality that reflects a continued and acute need for the ERA

GenRatify + other youth oriented equality advocatesLink to brief
Summary: Young advocates have played a central role in the ERA; the ERA has the potential to advance broader rights of gender equality for young people 

Corporate America (108 companies)Link to brief
Summary: As corporate citizens, Amici are strongly committed to the ERA as a means to advance the goal of gender equality; ERA would enable women’s full participation in the labor force and provide consistency in the enforcement of laws affecting women 

17 ratified states, 1 unratified state, Governor of Kansas, District of ColumbiaLink to brief
Summary: Congress lacked authority to impose a seven-year deadline; the attempts by five states to rescind a ratification are ineffective  

MichiganLink to brief
Summary: The Equal Rights Amendment must be enshrined in the U.S. Constitution

Governor of MontanaLink to brief
Summary: Justiciable; ratifying states will suffer real injury if the 28th Amendment is not added 

US Conference of Mayors and equality advocacy groups from 3 unratified statesLink to brief
Summary: The ERA will join the US with other countries in guaranteeing women’s equality; strict scrutiny; constitutional basis for claims of sex discrimination / gender-based violence; helpful appendix of international constitution references to gender equality

VoteERA.orgLink to brief
Summary: SCOTUS commentary on deadlines is not binding precedent; Framers chose not to allow deadlines; 19th Century Congressional action supports a textualist reading of Article V; Plain text of Article V does not allow Congress to limit amendments, does not allow states to rescind nor make ratifications contingent upon additional events

…in support of neither party

Constitutional law professorsLink to brief
Summary: Judicial review of the validity of the ERA’s ratification is precluded; only Congress is constitutionally authorized to resolve the ratification of a constitutional amendment; there is no role in the Constitution for the archivist or executive branch in amending the Constitution

…in support of defendant

Eagle Forum and other national anti-equality advocacy groupsLink to brief
Summary: Plaintiffs did not meet their burden of proof; deadlines on constitutional amendments; complaint based on false predicates; 28th Amendment legally not equivalent to 27th Amendment 

Concerned Women for America and Susan B. Anthony List  – Link to brief
Summary: Congressional deadline; Supreme Court dismissed litigation as moot 

DECISION (IN PROCESS):
The court will hold a hearing and rule on the motion to dismiss and the motion for summary judgment at the same time. The defendant / intervenors have requested an extension of time which was approved (now due August 20, 2020).


Intervenors’ Motion for Summary Judgment

AL, LA, NE, SD, TN motion for summary judgment
Link to motion
Link to statement of material facts

Plaintiff states’ motion in opposition of motion for summary judgment
Link to memorandum
Link to statement of material facts

Amicus Briefs

…in support of intervenors

Independent Women’s Law Center Link to the brief
Summary: Unnecessary; deadline; changed Constitutional landscape; change in language; voter participation in process 

Plaintiff States’ Motion for Summary Judgment

NV, IL, VA motion for summary judgment
Link to motion
Link to statement of undisputed material facts
Link to declaration of Michell Kallen (lead counsel)
Link to exhibits

DECISION (IN PROCESS):
The court will hold a hearing and rule on the motion to dismiss and the motion for summary judgment at the same time. The defendant / intervenors will have an opportunity to respond to this motion prior to that hearing.


Intervenors’ Answer to the Complaint

AL, LA, NE, SD, TN answer to the plaintiff’s complaint 
Link to the memo

DECISION (ON HOLD):
The court will hold a hearing and rule on the motion to dismiss and the motion for summary judgment at the same time. The court will not rule on the complaint itself until after it has ruled on the motion to dismiss and the motions for summary judgment.

ADDITIONAL FAQs


Contracts

“Won’t women contractors lose enhanced status for contract bids?”

COVID-19

“What kind of impact is COVID-19 having on gender equality?”

Draft

“Does constitutional equality mean women will be drafted?”

History

“What is the history of the 28th Amendment (Equal Rights)?”
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