In a brief opinion last week in Valame v. Trump, a unanimous Ninth Circuit panel summarily “reject[ed] as meritless” a plaintiff’s “contention that the Equal Rights Amendment was ratified as the Twenty-Eighth Amendment to the Constitution.” The plaintiff was arguing that the male-only military draft violates the (long-ago expired) Equal Rights Amendment.

The panel was ideologically diverse: two Clinton appointees (one liberal, one moderate) and a conservative Trump appointee.

The ruling is significant in that it is the first federal appellate ruling that squarely decides the cockamamie claim that the Equal Rights Amendment has been duly ratified. (A unanimous D.C. Circuit ruling in 2023, written by an Obama appointee and joined by appointees of Trump and Biden, thoroughly rejected the arguments that the ERA had been ratified, but it did so in the context of a mandamus action, which requires a higher showing that a right to relief is “clear and indisputable.”)

Even if the ruling weren’t the first federal appellate ruling on the question, it is the first Ninth Circuit ruling. For that reason, the panel should have published its opinion, rather than designating it as “not for publication” (by legal publishing companies) and thus “not precedent.”

Circuit Rule 36-4 allows any person to request publication of an unpublished opinion within 60 days of the court’s issuance of the opinion. The Department of Justice should do so.

As a close follower of ERA litigation sums things up:

Since the pseudo-ratification of the long-expired ERA by the Virginia legislature in January 2020, 18 federal judges have rejected attempts by pro-ERA litigants to have the ERA recognized as part of the U.S. Constitution. Of these, 13 were named by Democratic presidents and 5 by Republican presidents. No federal judge has accepted the claim that the ERA is part of the Constitution.