Just Where Is The ERA?

In October of 1978, Congress voted to extend the seven-year time limit it had imposed for ratification of the Equal Rights Amendment (ERA) by another three years and three months, to June 30,1982. Seven months later, legislators from Idaho and Arizona filed suit in federal court challenging the constitutionality of the extension. They also sought validity for a state's power to rescind a previous ratification.

The case was assigned to Judge Marion Callister of Idaho, who held a high position in the hierarchy of the Mormon Church. Because the church has been a primary opponent of the ERA, the U.S. Department of Justice and the National Organization for Women (NOW) filed motions to get Callister to disqualify himself from the case on the grounds of bias. Callister refused, stating that any decision he might make would be subject to full appellate review and the possibility of reversal. He resigned six months later as a regional representative of the Mormon Church.

The case might have been simply a footnote in feminist history, but just before Christmas Callister announced his decision on the case and placed a cloud of confusion around the ERA debate, just as it enters its final stretch

Callister ruled that Congress violated the Constitution when it extended the deadline for ratification, stating that Congress may set whatever deadline it chooses, but has no power to change it. In effect, his decision could mean that the ERA died on March 22, 1979, the original deadline. Callister also ruled that states could rescind a previous ratification. Congress apparently is bound to its decisions; states are not.

The decision of one lower-court judge threatens to derail the entire amendment process, which has involved the commitment and energy of literally hundreds of thousands of women and men. Eleanor Smeal, president of NOW, charged that Callister withheld his ruling and that "by issuing his decision on the eve of the opening of the final legislative session for consideration of the ERA, Judge Callister has effectively eliminated the time for normal appellate review....This one man could effectively cast the final vote on the Equal Rights Amendment."

Smeal was key in pushing Congress to add an extra three months to its three-year extension to include the crucial 1982 legislative sessions in the states, most of which will recess by the June deadline. Callister's decision has the effect of diverting the discussions in the state legislatures, three more of which must ratify before the ERA becomes law, so that much of it focuses away from the merits of the amendment and into the legal parameters of extension and recision.

NOW filed a motion in early January for expedited review of the Callister decision by the Supreme Court. Ordinarily such an appeal would go to the U.S. Court of Appeals, but when a district court has invalidated an act of Congress in a civil case in which the United States government is a party, a direct appeal to the Supreme Court is allowed. Such a situation is unprecedented in U.S. amendment history.

If the appeal is not given expedited consideration, the June deadline for ratification will have run out before the Supreme Court even considers the case; under a normal timetable, the court may get to it by October. Without a quick decision, the process may go down in history as the clearest case of delayed justice being denied justice.

It is crucial that clarity be brought quickly into the current cloud of confusion because, as Smeal has pointed out, in some states the vote has been "razor thin," with the amendment losing twice in state Senates by only two votes. Any vote lost to confusion may tip the balance.

The appeal for expedited review has the backing of 39 organizations, including the Democratic National Committee, the National Education Association, the AFL-CIO, and the League of Women Voters. The U.S. Justice Department supports the appeal but has opposed expedited review, a decision which would essentially give Callister the last word. Many pro-ERA forces suspect White House influence on the department; Reagan is the only president in the ERA's history to publicly oppose its passage.

NOW's appeal questions Judge Callister's authority on the issue of recision. A 1939 Supreme Court case gives Congress sole power to decide about recision, and historical precedent shows that once a state has ratified an amendment, it cannot withdraw that ratification. Attempts at de-ratification were made with the fourteenth, fifteenth, and nineteenth amendments. In every case, the attempted withdrawal was overruled by Congress. Attempts at legislation and amendments to recognize recision have in every case failed.

Further, precisely what constitutes recision has never been defined. Five states--Kentucky, Nebraska, Tennessee, Idaho, and South Dakota--have all attempted to rescind, but in two cases the recision was vetoed by the states' governors; in another the recision carried by only one vote in the state Senate while ratification had required a two-thirds majority; and in a fourth an "annulment" motion was made, an action that lacks any constitutional base.

The question of Callister's authority goes beyond the recision issue, and is at the heart of congressional response to the decision. James Fitzpatrick, counsel to the Speaker of the House and Chairman of the House Judiciary Committee, stated, "By substituting judicial decision for congressional judgment on the ratification process, the District Judge struck directly at Congress' authority. The decision is an outright repudiation of the separation of powers on which the government of the United States is founded." He has joined those voices pushing for expedited review.

As this issue of Sojourners goes to press, the Supreme Court has yet to hand down its decision about expedited review of the case. As we wait, and continue our work for the ERA's passage, it becomes very clear that the events of the last month drive home the point that ERA advocates have always made: that only a constitutional amendment will take the law of equality beyond the grasp of changing political climates and the whim of judges and legislators.

Joyce Hollyday was associate editor of Sojourners when this article appeared.