Ravnsborg Resists Women’s Equality… But Probably Has Law Right

South Dakota takes the lead… in fighting equality for women.

Pretend-Attorney General Jason Ravnsborg has joined Alabama and Louisiana in suing the Archivist of the United States to prevent the ratification of the Equal Rights Amendment.

Wait—I thought the ERA died back in the seventies. Is Jason, like most Republicans, stuck in a time warp?

The Equal Rights Amendment won only 35 of the 38 state ratifications it needed in the ten years Congress gave for the process from 1972 to 1982. Five states rescinded their ratifications, including South Dakota, which put a sunset clause on its ratification.

But women’s rights groups have mounted a drive to revive the ERA. Nevada ratified the ERA in 2017, and Illinois ratified it in 2018. South Carolina and several other states are considering ratifying the ERA as well.

Ravnsborg is putting South Dakota’s good name and his own featherweight legal skills on the wrong side of history. Instead of suing the archivist, he could acknowledge what supporters acknowledge: to make this 21st-century surge in ratifications stick, we need Congress to extend the deadline, and we probably need the Supreme Court to settle the question of whether Congress can extend such deadlines. But Ravnsborg can’t even sugarcoat his grandpa-shouts at bra-burners to get off those Capitol lawns. Instead of saying anything good about women’s equality and value of affirming that equality in clear Constitutional language, Ravnsborg brands the ERA as “long-failed” (which I’m not sure works as a compound adjective) and says with dubious neutrality of any properly offered amendment, “If Congress wants to pass an updated version of the ERA, taking into consideration all the changes in the law since 1972, I have no doubt the South Dakota Legislature would debate the merits in a new ratification process.”

I know you’re in legal mode, Jason, but would it kill you to say, “The ERA is great. We should pass it, but we should pass it right”?

Yeah, it would. The complaint makes clear that Ravnsborg sees the ERA as dangerous to his preferred theocracy:

…the only reason to ratify the ERA today would be to push the law further—to increase the level of scrutiny for sex-based laws, to remove the limitations in the Court’s jurisprudence, and to expand the frontiers of what qualifies as discrimination “on account of sex.” That is precisely what would happen if the ERA were ratified in the current legal and political climate.

For example, if the ERA were ratified today, activists would urge courts to use the amendment to overturn legitimate regulations of abortion and to mandate state funding of abortions. New Mexico, for example, has interpreted its ERA to provide a broader right to abortion than U.S. Supreme Court precedent. See N.M. Right to Choose/NARAL v. Johnson, 975 P.2d 841 (N.M. 1998). And courts in New Mexico, Connecticut, and Massachusetts have interpreted their ERAs to require taxpayer funding of abortions. See id.; Doe v. Maher, 515 A.2d 134 (Conn. Super. Ct. 1986); Moe v. Sec’y of Admin. & Fin., 417 N.E.2d 387, 405 (Mass. 1981). Many ERA proponents welcome these developments and intend to use the ERA to achieve them; when efforts were made in Congress to make the ERA abortion neutral, for example, proponents of the ERA worked hard to defeat them. They were successful.

As another example, litigants would urge courts to use the ERA to invalidate policies that reflect a biological definition of “sex.” While that definition was the predominant one when the ERA was proposed in the 1970s, several courts have recently defined “sex” more broadly to include sexual orientation and gender identity. See, e.g., Hivley v. Ivy Tech Cmty. College, 853 F.3d 339 (7th Cir. 2017); EEOC v. R.G. & G. R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018) [Complaint, Alabama, Louisiana, and South Dakota v. David S. Ferriero, filed in U.S. District Court of Alabama, 2019.12.16].

Hey now, Jason: you said this is about the Constitution and the proper process for amending it. Don’t go muddying your argument on Constitutional principle with your nasty misogynist politics. Your position on abortion and gender identity has nothing to do with the questions of law you’re trying to win.

If Jason can keep from tripping over his own misogynist, theocratic shoestrings, he can probably win this case. The merits of the amendment have no bearing on the arguments about the ratification process. Congress gave states a ten-year window to ratify the Equal Rights Amendment. Not enough states ratified it by the deadline, so the amendment failed. That’s just like if the South Dakota Senate considers a bill and it fails on a tie vote while Al Novstrup is away at his bumper car convention, Al doesn’t get to walk in all tanned and rested the next week, throw his vote in the aye column, and make that bill pass, not without a motion from the Senate to reconsider.

We did add the 27th Amendment, prohibiting pay raises for Congress from taking effect until after an election, in 1992 with state ratifications dating back to 1789. But the Founders didn’t put an expiration date on that amendment when they offered it to the states. Congress did put a deadline on the ERA, and we missed it. Writing the ERA into our Constitution (which we should do, Jason! Say it! We should!) will require more than the votes of five state Legislatures. It will require an act of Congress and some serious adjudicating… to which Ravnsborg and his He-Man Woman Haters’ Club is opening the door.