MANASSAS — (1/14/19): Former Delegate Bob Marshall (R-13) issued the following statement: (703-853-4213)

Bob Marshall, former Virginia General Assembly member, 2018

Virginia General Assembly leaders received incomplete and biased information from Robert Carlson, President of the American Bar Association, in a 1/2/19 letter endorsing Virginia’s ratification of the Equal Rights Amendment. Carlson claimed to speak on behalf of the 400,000 ABA lawyer-members.

ERA EXTENSION: Carlson touted ABA’s support of the ERA but failed to inform Virginia lawmakers that the ABA’s official body had previously opposed extending the ratification period from 7 years to 10 years and 3 months:

“The propriety of such a measure was reflected in the recent rejection by the American Bar Association’s policymaking House of delegates of a proposal to support this extension legislation out of concern over its constitutionality.” [Congressional Record 10/3/78, p. 33150]

ERA RATIFICATION: Carlson, who noted the ABA supported the ERA in 1974, urged Virginia to become “the 38th state to ratify the ERA” despite the ABA failing to support the ERA’s extension in 1978. Mr. Carlson assumes that the five states that rescinded their ERA ratifications acted illegally. The New York Times, reporting on an ABA meeting that took place in Honolulu in 1974, stated:

“Legislatures in 33 states of the 38 required have ratified the equal rights amendment. Two of them subsequently rescinded their approval, and there is considerable legal uncertainty whether supporters of the amendment now need five or seven additional states for adoption.” [NYT, 7/17/74]

ERA EXTENSION RULED UNCONSTITUTIONAL: In Idaho v. Freeman a federal District court ruled Congress could establish a time limit, but not change it once established.

STRICT SCRUTINY: Carlson correctly notes that “The ERA would require all judges to … use the same standard of review in sex discrimination cases that they now use in deciding cases … on race.” But Carlson is silent on the radical policies “strict scrutiny” would produce. Here are just a few:

ABORTION REGULATION & FUNDING: “…the ERA would reach abortion and abortion funding situations…” [Karen Lewis, “A Legal Analysis of the Potential Impact of the proposed …ERA …etc.” American Law Division, Library of Congress, 10/20/1983] An effort by Congressman Sensenbrenner (R-WI) to make the 1983 reintroduced ERA abortion-neutral lost in the House Judiciary Committee on 11/9/83 on the mark-up of H. J. Res. 1.

PRIVACY: Prof. Paul Freund of the Harvard Law School told ERA opponent Sen. Ervin (D-NC) that; “The strict model of racial equality, moreover, would require that there be no segregation of the sexes in prisons, reform schools, public restrooms, and other public facilities.” [Sen. Ervin, Congressional Record, 3/21/72, p. 9317]

Professor Phil Kurland, Editor of the Supreme Court Review, was asked by Sen. Ervin if sex separated restrooms for boys and girls in public schools or men and women in public buildings would be nullified. Kurlund answered, “That is right, unless the separate but equal doctrine is revived.” [Sen. Ervin, Congressional Record, 3/22/72, p. 9564]

SEX-INTEGRATED PRISONS: Virginia’s constitutional scholar, A E. Dick Howard (UVA grad) wrote, that sexually “segregated institutions would violate the E. R. A. Segregation of institutions on the basis of sex harkens back to segregation based on race. As with race, separate-but equal sexually segregated institutions would not be allowed. … .” [Virginia ERA Report, Joint P & E Committees, to Gov. & GA, Sen. Doc. 30, 1974, p. 43]

“… single sex institutions should be rejected.” [Ruth Bader Ginsburg, now Supreme Court Justice, noted in Sex, Bias and the US Code, (US Civil Rights Commission, 1977) stated on page 101.]

WOMEN IN GROUND COMBAT: “…women must be subject to the draft if men are. … “Supporters of the Equal Rights principle firmly reject draft or combat exemptions for women as Congress did…” [Sex Bias in the US Code – Federal Contract CR3AK010, US Commission on Civil Rights, 1977, co-authored by then professor, now Justice Ruth Bader Ginsburg, p. 218]

American Bar Association President Robert Carlson owes Virginia legislators and the public much more candor about what kind of laws and policies the ERA will mandate. Further, he should acknowledge the disagreement within the ABA over the ERA.