Plaintiffs Lack Standing in Suit to Order National Archivist to Publish Equal Rights Amendment, Holds First Circuit

In Equal Means Equal v. Ferriero, No. 20-1802 (1st Cir. June 29, 2021), the First Circuit holds that two orgnaizations and an individual citizen lacked an “injury” for standing in a lawsuit to order the National Archives to record the Equal Rights Amendment as “the duly ratified 28th Amendment to the U.S. Constitution.”

“The plaintiffs include two organizations, Equal Means Equal and The Yellow Roses, as well as an individual, Katherine Weitbrecht (‘Weitbrecht’). Equal Means Equal is a national nonprofit organization that is dedicated to advocating for women’s equality and for the ratification of the Equal Rights Amendment (‘ERA’). The Yellow Roses is a student organization based in Massachusetts whose ‘sole mission is to advocate for and raise public awareness about [the] ratification of the ERA.’ Weitbrecht is a female resident of Massachusetts.”

The plaintiffs alleged that the statutory and constitutional requirements had been met for ratification of the ERA, and that under 1 U.S.C. § 106b the National Archivist was obliged to publish the amendment “with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States.” Further, the plaintiffs sought “an order declaring that the ERA is the Twenty-Eighth Amendment to the United States Constitution and . . . . enjoining the Archivist from removing any previously recorded ratifications.”

The district court dismissed the case on jurisdictional grounds. It held “that the plaintiffs had ‘not demonstrated standing in this suit’ under Article III, and so it did not reach the Archivist’s arguments that, on the merits, the complaint must be dismissed for failure to state a claim.”

The First Circuit affirms, rejecting each theory of injury advanced by the plaintiffs.

They first argued that as women and associations of women, they possess “’a protectable legal interest’ in ‘the ERA’s vitality’ on which the Archivist inflicted ‘catastrophic harm’ by not publishing the ERA, because the Archivist’s failure to do so ‘has made it more difficult for them to obtain the benefits of the ERA’s presumptive validity.’” They particularly stressed the risk of “sex-based violence.” But the panel holds that as “concrete as the harm from an assault surely is, the plaintiffs are seeking relief from the conduct of a defendant who stands well removed from the person who would directly inflict that harm.”

Weitbrecht argued that as “the victim of a prior act of private sex-based violence that was criminally prosecuted, but not as a hate crime,” and that “other women generally, though not Weitbrecht specifically, are at an increased risk of suffering sex-based violence and other harms, relative to other persons. But, neither these aspects of the complaint nor any other purport to address how any causal link between the risk of such harm that Weitbrecht in particular faces and the Archivist’s failure to publish the ERA differs from the causal link between the risk of such harm that the organizations’ members generally face as women and that failure.”

The organizations also contended that they had standing based on “frustration of mission and diversion of resources to identify and counteract” the Archivist’s failure to publish the ERA. “But, an organization cannot establish standing if the ‘only injury arises from the effect of [a challenged action] on the organizations’ lobbying activities, or when the service impaired is pure issue-advocacy.’”

The panel concludes that the “federal constitutional questions that the plaintiffs’ complaint raises concerning the legal status of the ERA are significant. To be fit for adjudication in federal court, however, they must be raised in a suit that satisfies the requirements of Article III.”

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