by Emilio Jaksetic

On January 6, 2022, Attorney General Mark Herring issued an advisory legal opinion in which he concluded that the Virginia General Assembly cannot rescind its January 2020 decision to ratify the Equal Rights Amendment (ERA).

What is amazing about Herring’s advisory opinion is its reliance on one passage of the Supreme Court decision in Coleman v. Miller, 307 U.S. 433 (1937), while failing to address a later passage in that decision that renders his advisory opinion irrelevant and nugatory.

Herring quotes the following passage from Coleman v. Miller, 307 U.S. at 450: “Article V, speaking solely of ratification, contains no provision as to rejection.  Nor has the Congress enacted a statute relating to rejections.”

Herring fails to mention or address the following passage from Coleman v. Miller, 307 U.S. at 452: “We have held that the Congress in proposing an amendment may fix a reasonable time for ratification. Dillon v. Gloss, 256 U.S. 368. There we sustained the action of the Congress in providing the proposed Eighteenth Amendment that it should be inoperative unless ratified within seven years.”

The 1972 Congressional Joint Resolution proposing the ERA is quoted in Herring’s advisory opinion.  That Joint Resolution states in plain English that the ERA “shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress.” (Emphasis added)

The General Assembly voted to ratify the ERA in January 2020, which was more than 40 years after the expiration of the seven-year ratification period specified in the Congressional Joint Resolution. Since the Supreme Court decision in Coleman v. Miller specifically noted that Congress has the authority to set such a time limit on the ratification period of a proposed constitutional amendment, the General Assembly’s action was clearly belated.

Herring’s selective citation of the Supreme Court decision in Coleman v. Miller is a seriously flawed legal move. Since that decision contains language that shows Congress clearly had the authority to set a seven-year ratification period for the ERA, the General Assembly’s January 2020 effort to ratify the ERA was a legal nullity. Therefore, it is legally irrelevant for Herring to address whether or not the General Assembly can rescind its long-belated attempt to ratify the ERA.

It’s ironic. Herring’s advisory opinion seeks to preserve the General Assembly’s January 2020 effort to ratify the ERA. But, instead of preserving that effort, the advisory opinion identifies a Supreme Court decision that shows the General Assembly’s 2020 effort was a legal nullity, an empty gesture.

If I had tried in law school to use the kind of selective quotation of a Supreme Court decision that Herring uses with his selective quotation of the Coleman v. Miller decision, I have no doubt that more than one law professor would have raked me over the coals.

Emilio Jaksetic, a retired lawyer, is a Republican in Fairfax County.