MEMO ON THE EQUAL RIGHTS AMENDMENT 2000

The original Equal Rights Amendment (ERA) resolution, which passed Congress on March 22, 1972, set this time limit for the ratification period: "seven years from the date of its submission by the Congress." When the end of the seven years approached and it became clear that three-fourths of the states would not ratify ERA, Congress passed the ERA Time Extension resolution. This act purported to change "seven years" to 10 years, three months and eight days, extending the time to June 30, 1982.

This Extension resolution was greeted with widespread public condemnation. The cartoonists and editorialists had a field day, comparing it to adding three more innings to a baseball game, or a fifth quarter to a football or basketball game, even though the game was not tied. Public reaction was so adverse that not a single additional state ratified ERA after the Time Extension was passed.

After a two-and-a-half year lawsuit, the U.S. District Court ruled on December 23, 1981 in Idaho v. Freeman that the ERA Time Extension was unconstitutional. When the Idaho case was appealed to the U.S. Supreme Court, it was dismissed as "moot" on October 4, 1982. (NOW v. Idaho, 459 U.S. 809) In support of its ruling, the Supreme Court cited as controlling the memorandum of the U.S. Administrator of General Services, who had argued that "the Amendment has failed of adoption no matter what the resolution of the legal issues presented here."

Thus, the Supreme Court held that ERA was dead whether ERA expired on March 22, 1979 or on June 30, 1982. The Supreme Court and all the parties to the case agreed that ERA was dead.

For State Legislators to presume to breathe life into this carcass, having been proclaimed legally dead 18 years ago by the U.S. Supreme Court, would make them the laughing stock of the nation.

Much additional evidence has surfaced to validate the decision of the American people in the 1970s to reject ERA.

1. ERA would give those who perform abortions a constitutional right to be paid by our tax dollars. This is proved by the unanimous decision of the Supreme Court of New Mexico on Nov. 25, 1998 that New Mexico's state Equal Rights Amendment requires the state to pay for elective abortions under the Medicaid program. The decision adopted the feminist argument that to deny funding for abortions would be sex discrimination under the meaning of ERA. The decision said that the law against abortion funding "undoubtedly singles out for less favorable treatment a gender-linked condition that is unique to women." New Mexico is one of the few states whose state constitutions contain an ERA in practically the same language as the defeated federal ERA. (N.M. Right to Choose/NARAL v. Johnson, 975 P.2d 841, 1998)

Likewise, the Connecticut Superior Court previously ruled that the State ERA requires Connecticut taxpayers to pay for abortions, stating: "Since only women become pregnant, discrimination against pregnancy by not funding abortions . . . is sex-oriented discrimination. . . The court concludes that the regulation that restricts the funding for abortions . . . violates Connecticut's Equal Rights Amendment." (Doe v. Maher, April 9, 1986)

The argument that to deny taxpayer funding of abortions is "sex discrimination" was developed by the American Civil Liberties Union when Ruth Bader Ginsburg was one of their lawyers. The ACLU has argued this position in abortion cases in several different states. There's no doubt that the ACLU's former colleague, now Justice Ginsburg, would vote for this reinterpretation of our basic law. We must see to it that she never gets the chance.

2. ERA would put new homosexual rights into the Constitution, particularly the right of same-sex couples to get marriage licenses. Hawaii is one of the few states that have a State Equal Rights Amendment in the same language as the proposed federal ERA. In 1993, the Hawaii Supreme Court ruled in Baehr v. Lewin (852 P.2d 44, 1993) that the denial of marriage licenses to same-sex couples was sex discrimination and unconstitutional under the Equal Rights Amendment of Hawaii's state constitution. The court remanded the case for trial. On December 3, 1996, the Hawaii trial court in Baehr v. Miike (Haw. Cir. Ct., Civ. No. 91-1394) enjoined the denial of marriage licenses to same-sex couples, ruling that the state statute allowing only heterosexual marriage was unconstitutional.

In order to undo the damage done by adding ERA to the Hawaii constitution, Hawaii voters had to pass a new constitutional amendment. On November 3, 1998, Hawaii voters passed a constitutional amendment stating that "the legislature shall have the power to reserve marriage to opposite-sex couples."

Legitimizing same-sex marriages has been on the ACLU agenda for many years, and it is obvious that there is a nationwide campaign to achieve this goal. It is clear that one of the mischievous results of ERA would be to give green light to same-sex marriages.