It seemed to me like the natural thing to do is to sue any government organization that is not abiding by the ERA, claiming that they are violating the constitution. Is anyone doing that?
I agree that one could approach the issue that way. I don’t believe anyone is. One big reason not to do that, and not to support the ERA at this point in general, is that it is not at all obvious what “not abiding by the ERA” would even look like. The legal landscape has changed so much since it was initially proposed. Most importantly, since the ERA was proposed, the Supreme Court has interpreted the Equal Protection Clause of the 14th Amendment to prohibit most discrimination based on sex. I’m not sure what work the ERA is supposed to do that the 14th Amendment isn’t already doing. And since no court has ever recognized the ERA as part of the constitution, there is no case law to guide us in figuring out what it might mean.
So lets imagine that you are a lawyer, and a client comes to you and asks you to sue the government because, say, the government awarded a contract to her male competitor despite her obviously superior bid, and she thinks it was because of her sex. So you verify the facts as best you can and draft up a complaint (the legal document that initiates a lawsuit). After describing the facts and the basis of the court’s jurisdiction, you then have to tell the court which legal provisions you think the government violated. You could write “Count I − 28th Amendment”. But if that’s all you write, you will almost certainly have committed malpractice. There are much better things you can write, and it is your job as a competent lawyer to know about them and write them. You’re going to have to also write “Count II—Equal Protection Clause”, and maybe some more counts after that. And now you’ve given the judge an opportunity, which they will almost certainly take, to avoid deciding the validity of the ERA. Maybe the judge decides that you win on the basis of the Equal Protection Clause, in which case it is unnecessary for the judge to address the ERA at all. Or maybe the judge decides that you loose your Equal Protection Clause claim, and then they can write something like this: “the court assumes without deciding that the ERA is part of the constitution. In the absence of any authority to the contrary, the court chooses to apply the same standard, intermediate scrutiny, under the ERA as under the Equal Protection Clause. Plaintiff’s claims under the ERA therefor fail for the reasons already discussed.” And now you’ve spent years of your life, and your client has spent hundreds of thousands of dollars, litigating a case to get the ERA recognized as part of the constitution, and you have not gotten a ruling on whether the ERA is part of the constitution. Whereas if you sue the Archivist of the United States for not publishing the ERA as the 28th Amendment, then there really is no way for a judge to rule on the case without deciding whether the ERA is in fact the 28th Amendment. It’s the difference between giving a judge an opportunity to decide the issue, and putting them in a position where they must decide the issue.
It seemed to me like the natural thing to do is to sue any government organization that is not abiding by the ERA, claiming that they are violating the constitution. Is anyone doing that?
I agree that one could approach the issue that way. I don’t believe anyone is. One big reason not to do that, and not to support the ERA at this point in general, is that it is not at all obvious what “not abiding by the ERA” would even look like. The legal landscape has changed so much since it was initially proposed. Most importantly, since the ERA was proposed, the Supreme Court has interpreted the Equal Protection Clause of the 14th Amendment to prohibit most discrimination based on sex. I’m not sure what work the ERA is supposed to do that the 14th Amendment isn’t already doing. And since no court has ever recognized the ERA as part of the constitution, there is no case law to guide us in figuring out what it might mean.
So lets imagine that you are a lawyer, and a client comes to you and asks you to sue the government because, say, the government awarded a contract to her male competitor despite her obviously superior bid, and she thinks it was because of her sex. So you verify the facts as best you can and draft up a complaint (the legal document that initiates a lawsuit). After describing the facts and the basis of the court’s jurisdiction, you then have to tell the court which legal provisions you think the government violated. You could write “Count I − 28th Amendment”. But if that’s all you write, you will almost certainly have committed malpractice. There are much better things you can write, and it is your job as a competent lawyer to know about them and write them. You’re going to have to also write “Count II—Equal Protection Clause”, and maybe some more counts after that. And now you’ve given the judge an opportunity, which they will almost certainly take, to avoid deciding the validity of the ERA. Maybe the judge decides that you win on the basis of the Equal Protection Clause, in which case it is unnecessary for the judge to address the ERA at all. Or maybe the judge decides that you loose your Equal Protection Clause claim, and then they can write something like this: “the court assumes without deciding that the ERA is part of the constitution. In the absence of any authority to the contrary, the court chooses to apply the same standard, intermediate scrutiny, under the ERA as under the Equal Protection Clause. Plaintiff’s claims under the ERA therefor fail for the reasons already discussed.” And now you’ve spent years of your life, and your client has spent hundreds of thousands of dollars, litigating a case to get the ERA recognized as part of the constitution, and you have not gotten a ruling on whether the ERA is part of the constitution. Whereas if you sue the Archivist of the United States for not publishing the ERA as the 28th Amendment, then there really is no way for a judge to rule on the case without deciding whether the ERA is in fact the 28th Amendment. It’s the difference between giving a judge an opportunity to decide the issue, and putting them in a position where they must decide the issue.