March 5th, 2021: EME Presents Historic Argument on Behalf of Women before the First Circuit Court of Appeals

March 5th, 2021: EME Presents Historic Argument on Behalf of Women before the First Circuit Court of Appeals
March 5, 2021 Robert Wood

On March 5, 2021, Attorney Wendy Murphy argued, before the First Circuit Court of Appeals in Boston, that the Equal Rights Amendment (“ERA”) was ratified by 38 states in January, 2020, but the U.S. Archivist refused to publish it as the 28th Amendment, violating the law.

Contrary to President Biden’s claimed support for the ERA, a lawyer from Biden’s Department of Justice (“DOJ”) appeared in the case and argued against the ERA, relying on a legal opinion, issued by Trump’s and Barr’s Office of Legal Counsel, that declared the ERA invalid and prohibited the Archivist from publishing it in the Constitution.

Biden’s Department of Justice is also still opposing a similar ERA lawsuit in the United States District Court in D.C., filed by the last three states that ratified the ERA, Nevada, Illinois and Virginia. That case was dismissed on March 5, 2021 by Judge Rudolph Contreras, but the states filed a Notice of Appeal on May 4.

The DOJ attorney argued Wednesday in the Massachusetts case that publication of the ERA does not matter. The attorney acknowledged he submitted Judge Contreras’ opinion to the First Circuit judges as additional authority for the government’s position against the ERA in the EME case.

EME Attorney Murphy said that publication of the ERA is critically important, because it would have forced all states to begin the process of identifying and repairing their sexually discriminatory laws and policies that now block women’s equal treatment under the law.

“All women stand to benefit from the repair work that would now be underway if the Archivist had not refused to publish the ERA when it was ratified in January of 2020,” Murphy argued. “If women don’t have standing to challenge that, who does?”

Murphy ended her argument by saying, “This is one of the most important women’s rights cases in the history of this country. Nothing matters more than constitutional equality, because all women’s rights rise or fall based on whether women can expect equal protection of those rights when they seek to enforce them. This Court should validate the ERA on behalf of all women.”

Murphy elucidated the legal dilemma women face without the Equal Rights Amendment: “Current 14th Amendment jurisprudence not only segregates and subjugates women, compared to other classes of people, it forces women to view themselves through a hierarchical prism such that some parts of who they are, are well-protected by the law, while their femaleness is not.”

“This is an unconscionable affront to core American values, and it belies the Supreme Court’s inscribed promise of ‘Equal Justice Under Law.’ Murphy concluded, “This Court has an historic opportunity to end the hypocrisy and endow all people in this country once and for all with the dignity of basic human equality.”

EME and other women’s rights advocates across the country have been asking President Biden to call on the Archivist to publish the ERA as the 28th Amendment to the U.S. Constitution. Yet, Biden has remained silent. Many women’s groups expressed disappointment that Biden did not mention the ERA in his recent speech to the Joint Session of Congress.

Attorney General Merrick Garland asked Congress for huge financial support for the Violence Against Women Act this week, but he has yet to withdraw the Trump/Barr OLC Opinion and allow the Archivist to publish the ERA.

Once published as the 28th Amendment, the ERA will work to protect women from violence, promote equal pay for women, and grant half the population of this country equal rights under the Constitution for the first time in history.

We must continue to keep the pressure up on this new administration to do what is right.

Thank you, as always, for being in this fight with us.

No one is equal until all of us are equal.

With thanks and love,

Kamala, Natalie, Wendy, Thila and Team EME

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