Special Update

What Happened in Federal Court

Yesterday, our attorney, Wendy Murphy, appeared in federal court in Boston for a hearing in Equal Means Equal v. Donald Trump.

Poignantly, the hearing took place exactly 100 days from July 4, the day that our nation will celebrate its 250th anniversary. Wendy started her argument by emphasizing that not once in all 250 years have women in America enjoyed full legal equality.

Here is her statement about it:

“The words EQUAL JUSTICE UNDER LAW are carved in stone on the Supreme Court building in Washington DC, but they have never applied to women.

Even today the Constitution allows all laws - and all government officials, state and federal - to treat women differently and worse solely because they are female. Our lawsuit is designed to fix this outrageous injustice and establish women’s full legal equality once and for all. Obviously, this is not an easy task.

Here is a quick update on what happened at the hearing — and what comes next.

Our case was filed as a constitutional challenge to the Selective Service Act, a federal law that requires men to register for the military draft, but forbids women to do the same.

We were not planning to file a lawsuit about the draft, but we were compelled to focus on this issue because two similar lawsuits had already been filed - one in California federal court, the other in New Jersey federal court - and both were filed by men’s rights organizations that were asking the courts to require women to register for the draft, but remain second-class citizens with unequal protection of the laws. We were outraged, and immediately filed a lawsuit criticizing those cases and criticizing the idea that anyone would ask a court to order women to give their lives on the front lines of military combat, but to do so without full legal equality under the Constitution.

Our lawsuit challenges the constitutionality of the Selective Service Act by making two claims, one under the ERA and one under the Equal Protection doctrine of the 5th Amendment. In both claims we ask the court to apply Strict Scrutiny review because Strict Scrutiny is the legal definition of full equality.

The ERA requires courts to apply Strict Scrutiny, but the Equal Protection doctrine currently does not. In fact, the Supreme Court has ruled that women are unworthy of Strict Scrutiny and deserve much weaker Equal Protection rights under a standard known as Intermediate Scrutiny.

Intermediate Scrutiny is what causes women’s inequality because it allows the government, including courts, to enforce all laws unequally when applying them to women. This applies to all laws across the board — from getting a dog license, to freedom of speech, and even voting rights laws. All laws and all policies of the government can, legally, treat women differently and worse simply because they are female.

We objected strenuously to the judge in our case applying Intermediate Scrutiny, arguing that it is unconstitutional to subject women to unequal protection of the law, and insisted that the court apply Strict Scrutiny instead.

The judge today dismissed the portion of our case that asked the court to recognize the ERA as valid. He stated that he is bound by existing precedent and guided by prior federal court decisions (the Valame case in California and the Illinois v. Ferriero case from D.C.) that have already rejected the ERA’s validity.

We were not surprised by this, which is why we filed a separate 5th Amendment/Equal Protection claim.

Importantly, the court did not issue a final decision on our 5th Amendment/Equal Protection claim. That issue has been taken under advisement, and a written ruling will follow. On this issue, we emphasized that women today serve on the front lines of combat — they should not die in service to this country as second-class citizens. If the court rules that women must register for the draft, but remain unequal citizens under the Constitution, this will enhance the strength of our appeal.

We are keenly aware that between 2020 and 2024, both political parties (Trump and Biden administrations) fought hard against women’s equality in two lawsuits (one was ours). This makes our task much harder but we will never give up.

If our case in Boston is unsuccessful, we will file another in another jurisdiction, and another after that. We might at some point stop asserting claims under the ERA if courts continue to rule that the ERA is not valid, but we will never stop filing lawsuits that demand Strict Scrutiny under the Equal Protection doctrine.

We also plan to file intervention briefs and amicus briefs in other people’s cases, in courts across the country, criticizing lawyers and advocacy organizations that represent women but ask for only Intermediate Scrutiny instead of Strict Scrutiny. Anyone who asks for Intermediate Scrutiny is causing great harm to women by participating in and exacerbating their constitutional subjugation.

Our next step in the Boston case will be to file an appeal to the First Circuit Court of Appeals. Although the issues on appeal are not yet clear because we do not yet have a final ruling, we know that we will at least be asking the appellate court to rule that the ERA is valid.

Thank you for standing with us.”

Wendy Murphy & Kamala Lopez