John,

“We hold these truths to be self-evident, that all men are created equal.”

– U.S. Constitution

“How long must women wait to get their liberty? Let us have the rights we deserve.”

 – Alice Paul, American suffragist

Since our founding, the United States has lacked constitutional protections against sex and gender discrimination. Yet the solution is within arm’s reach: the Equal Rights Amendment (ERA).

Originally drafted by suffragists Alice Paul and Crystal Eastman in 1923 and passed by Congress in 1972, the ERA ensures that “[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” In the face of a national conservative campaign against it, led most notably by Phyllis Schlafly, the ERA had the ratification of just 35 states when its extra-constitutional ratification deadline expired in 1982. This deadline, however, was not included in the text of the amendment passed by Congress and ratified by the states and, as such, lacks any constitutional authority. Nevada, Illinois, and Virginia have since ratified the amendment, satisfying the constitutional requirement that a proposed amendment be ratified by three-fourths of the states.

But there’s a hurdle to the ERA’s certification; under the direction of former Attorney General Bill Barr, the Department of Justice’s Office of Legal Counsel (OLC) in a 2020 memo argued that the ERA has not and cannot be properly ratified based on the deadline. The National Archivist, in accordance with this opinion, has refused to certify and publish the ERA as the 28th Amendment to the Constitution.

Sign if you agree: The US Justice Department must rescind its 2020 opinion and allow the Archivist to certify the ERA.

Free Speech For People has authored a coalition letter urging Attorney General Merrick Garland to instruct the OLC to rescind its January 6, 2020 advisory opinion regarding the ratification of the ERA. Rescinding this erroneous opinion will clear the way for the Archivist to publish and certify the ERA as the 28th Amendment.

The Department of Justice is not, and should not be considered, a gatekeeper on the legal validity of an amendment. Article V of the U.S. Constitution expressly assigns the constitutional amendment process to Congress and the states, and the executive branch plays no role in the process of either proposing or ratifying amendments. Furthermore, nowhere in Article V nor in any other provision does the Constitution provide Congress with authority to impose a deadline on ratification or to otherwise alter the Article V’s unqualified command that an amendment proposed by Congress is a valid part of the Constitution ‘when ratified’ by three-fourths of the states.

The Equal Rights Amendment has been ratified. It’s time to make it official. Tell Attorney General Garland: The National Archivist Must Certify the Equal Rights Amendment.

In solidarity,

Courtney Hostetler

Senior Counsel, Free Speech For People

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