Firm Represents Dozens of Professional Associations and Advocacy Organizations Demanding Equal Rights for Women
Lawyers from Boies Schiller Flexner LLP today filed an amicus brief in the U.S. Court of Appeals for the District of Columbia on behalf of 26 organizations advocating for the certification of the 28th Amendment, also known as the Equal Rights Amendment (ERA). The ERA bans discrimination on the basis of sex and guarantees equality for women under the U.S. Constitution.
The signatories to the amicus brief include organizations that fiercely advocated to ratify the ERA in the final three states necessary to reach the three-fourths threshold required to make a constitutional amendment—Virginia, Nevada and Illinois.
“Our nation’s founding document did not contemplate equality for women,” said Boies Schiller associate and brief co-author Vanessa Tussey. “It took 132 years for women to gain the right to vote with the 19th amendment. As of January 2020, the requisite 38 states ratified the ERA, and the time has come for legal protections for women to be guaranteed through the 28th Amendment to our Constitution.”
At issue in the case is the National Archivist’s refusal in January 2020 to certify and publish the 28th Amendment without a court order because the final three ratifications came after a purported deadline set outside the text of the amendment. Virginia, Nevada and Illinois argue that the ratifications are valid and filed a lawsuit seeking an order to require the Archivist to certify and publish the amendment, but in March 2021 a federal judge dismissed the case, ruling that the states lacked standing to sue. The three states appealed the decision to the D.C. Circuit.
On behalf of the firm’s clients, which include advocacy groups, business organizations, bar associations and other entities invested in the amendment’s ratification, Boies Schiller lawyers argue that the Plaintiff States have suffered and will continue to suffer actual, concrete injury sufficient to confer Article III standing.
The brief contends that where, as here, a federal official’s refusal to perform a ministerial function violates the States’ authority under the Constitution, the states are entitled to vindicate their authority through the courts. Quite simply, the federal government has no Constitutional role in deciding whether an amendment should be ratified and, therefore, no part in deciding whether a proposed amendment is ultimately made part of the Constitution.
“The process for amending the Constitution is clear, and we have relied upon that process as we pursued the passage of the ERA in Illinois,” said E. Lynn Grayson, President of the Chicago Bar Association. “If the District Court’s ruling is allowed to stand, the ability for organizations to achieve change through the amendment process could be severely restricted. We have the right and the duty to press our case before the appellate court.”
The amici are committed to the mission of advancing equity for women and girls and have spent considerable time and effort towards the ratification of the ERA by their respective state legislatures. These organizations, hailing from Virginia, Nevada and Illinois, brought this ratification process all the way to the finish line, only to have the Archivist refuse to acknowledge the ERA’s rightful place as the 28th Amendment to the Constitution.
“My mother marched for the ERA when she was pregnant with me. Enshrining sex equality in the U.S. Constitution is now a family legacy because I carry the baton too. We will continue to use every tool at our disposal, including this amicus brief, until equal rights are recognized as a part of our nation’s charter,” said Michelle Fadeley, co-founder of ERA Illinois and former President of Illinois NOW.
VAratifyERA spokesperson Liza Mickens said, “This lawsuit is essential to rectify gender inequality in our nation’s history. We collectively share the responsibility of ensuring a more equal and just future. VAratifyERA is proud to join the many other tireless advocates on this amicus brief.”
The case is Commonwealth of Virginia, et al., vs. David S. Ferriero, Alabama, et al. Attorneys for the amici are Vanessa Tussey, Ana Carolina Varela, Samantha Licata, and Ryan Witte, all of Boies Schiller Flexner.