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Arizona Democrats renew call to ratify Equal Rights Amendment

Key Points:

  • Arizona faces a renewed push to ratify the Equal Rights Amendment
  • The amendment has a complicated ratification history
  • Opponents say the Fifth and 14th amendments already cover equality

It might be more than 100 years in the making, but calls to ratify the Equal Rights Amendment were renewed this week at a press conference. 

Sen. Lauren Kuby, D-Tempe, said the movement is still growing. She was joined by the Equal Rights Task Force AZ, a coalition of groups and volunteers working to ratify the amendment, Rep. Quantá Crews, D-Phoenix, several other senators, advocacy group Unity Rising USA and women’s activist Civia Tarmakin. 

This isn’t the first time lawmakers have pushed for Arizona to ratify the amendment, as they’ve made the call in past legislative sessions. Eventually, the decision will go to voters, Kuby said. 

“It’s about time,” Kuby said. “The ERA does not create special rights. It affirms equal rights for all.”

The amendment, now over 100 years old since its first proposal in 1923, guarantees equality of rights under the law for all persons regardless of sex. Most importantly, it would expand constitutional protections for members of the LGBTQIA+ community, such as people who identify as non-binary or are transgender. 

“It’s a very inclusive bill. It includes everyone, and it actually will protect men. We don’t want to discriminate against men. That is not the dominant theme here. It will protect working families and communities,” she said.

FILE – Leading supporters of the Equal Rights Amendment march in Washington, July 9, 1978, urging Congress to extend the time for ratification of the ERA. The amendment, now over 100 years old, was first proposed in 1923. It reads, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” From left are: Gloria Steinem; Dick Gregory; Betty Friedan; Rep. Elizabeth Holtzman, D-N.Y. (partially obscured); Rep. Barbara Mikulski, D-Md.; and Rep. Margaret Heckler, R-Mass. The women at far left and right are unidentified. (AP Photo/Dennis Cook, File)

The amendment’s ratification history is complicated. In 1972, after the amendment passed with a two-thirds majority in both chambers of Congress, it was sent to the states, according to the advocacy website. Initially, there was real political momentum, with 30 states choosing to ratify the legislation, but by 1978 the pace had slowed significantly, with the proposal earning only five new state approvals over that six year span. That left it just shy of the required 38 states to ratify the Constitution. And though the Constitution does not set a specific time limit for ratification, the proposal’s self-imposed seven-year deadline expired, leaving the would-be amendment in limbo. 

President Jimmy Carter signed an extension bill to 1982, breathing new hope into supporters, but no additional states signed on. Legislators can introduce “start over” bills in Congress, but no such bill has been introduced in the House or the Senate. 

Yet despite the missed deadline, efforts to ratify the amendment were not abandoned, and advocates at the state and national levels continued working to see it ratified — and to some success. In fact, as recently as 2020, Virginia signed on. 

Some constitutional scholars say the amendment is now part of the Constitution because it has the required number of ratifications. However, the Archivist of the U.S. has not taken steps to publish the amendment as the 28th amendment due to political and legal challenges, according to the website. 

Arizona is one of 12 states that have not ratified the amendment. Opponents say the amendment isn’t necessary because the Fifth and 14th Amendments already guarantee equal protection under the law, as do federal, state and local laws that prohibit sex discrimination and unequal pay, according to the Center for Arizona Policy. 

The center also says the amendment is legally dead, and if Arizona ratified it, it would likely embroil the state in a lengthy and expensive court case.

Yet despite those legal challenges, some lawmakers are still committed to ratification. Kuby said there are a lot of laws supportive of equality, but people can’t rely on the courts because laws can shift. 

The Legislature’s current longest serving lawmaker, Sen. Lela Alston, D-Phoenix, said the amendment was in play when she first ran for office in 1976. 

“My daughter then was 15 years old and I thought for sure that by the time she was 21, she would have equal rights,” Alston said. “I now have granddaughters in their 30s and we still haven’t gotten there.”

Crews said women hold the nation on their shoulders, generation after generation, and today’s women stand on the shoulders of women who fought for the right to vote, the right to open a bank account and own land. She pointed to Arizona’s workforce and said women are in every fabric of the economy. 

“We’re not standing here asking for these bills to be heard and to be moved through the legislative process because we think it’s just a cute idea,” she said. “I’m talking to the majority party. Your mothers, your daughters, your spouses, your nieces, your family, the women you love, have worked hard for this. The least Arizona can do is ratify this amendment.”

Linley Wilson: The legal arm of the Arizona House

Linley Wilson, general counsel and deputy chief of staff for Arizona House Republicans, joined ahead of the 2022 session as the Legislature made it a more standard practice to wade into legal battles to defend state law.  

Now, after three years, Wilson is leaving her post to join the political and election law firm Holtzman Vogel. Carrying legislative expertise and a background at the Attorney General’s Office, Wilson hopes to leverage her experience with constitutional issues and with the firm’s new State Attorneys General practice, with a focus on clients facing investigation and enforcement by state attorneys general.

Her first day was Oct. 21. But before leaving, Wilson spoke with the Arizona Capitol Times, reflecting on her work in the Legislature, her passion for state government and the work ahead in private practice. 

Answers have been lightly edited for clarity. 

What has been your career path so far? 

My entire career has been spent in state government. I’ve had the honor of working in all three branches of state government in Arizona, and I’ve loved my career in public service. I spent over a decade at the Arizona Attorney General’s Office under Republican leadership, and I was thrilled when this opportunity became available to me at the Arizona House of Representatives. I’ve now spent three legislative sessions here, and I’m really proud of all of the work that the House has accomplished. We’ve taken a larger role in litigation, which you may have noticed over the past few years. We have extensively defended the constitutionality of state laws passed by the Legislature over the years, when challenged in state and federal courts. Really, it’s been a highlight of my career to be at the Legislature. 

What have been your biggest takeaways from your time at the Legislature? 

Personally, the insight into the legislative process and policy decisions that our elected leaders make on a daily basis on issues of statewide importance, just gave me a very deep appreciation for how state government works. I think that will translate really well to the private sector just in general. And of course, on the types of cases that I’ll be working on at Holzman Vogel. 

To be an effective litigator or legislator, you have a good understanding of how the legislative process works in any state. It’s one thing to talk about the separation of powers, but to truly be firsthand and see how laws are made and why they’re important, and that this body has collectively decided that this should be the policy for Arizona, I think, as transitioning now to be a litigator at the firm, I think that background is critically important when we are litigating constitutional rights — interpreting the Arizona and the federal constitutions. I’m so thankful that I’ve had that experience to bring with me into the private sector.

What have you been most proud of during your tenure at the Legislature? 

I’m really proud of the work on the Secure the Border Act that was referred to voters last year, which the voters passed on the ballot. The Legislature recently prevailed in court. It was challenged, and the legislative leadership intervened to defend it. The lawsuit was just dismissed there this week. So I think that really reflects the will of the voters. And border security is obviously so important for Arizona. So I really enjoyed working on that legislation.

Another one that stands out to me is the election timeline bill … Representative Kolodin sponsored the bill, and it was really important to put up some of Arizona’s deadlines for when certain election processes had to take place … I think that’s another really great accomplishment of the Legislature in the past couple of years.

What do you make of the Legislature more actively defending state laws in court? 

That’s probably my proudest accomplishment. The Legislature just had another ruling come out of the Arizona court reaffirming that the Legislature has standing in court to bring claims if the House and the Senate believe that its institutional powers or authority under the Arizona Constitution is being violated by another actor, an executive branch or in intervening to defend interests of the House and Senate when a law isn’t being defended in court. 

We’ve certainly taken the lead in the last few years. And that’s important, because those are laws that have been on the books. Prior Legislatures passed those laws, and I do believe it’s a duty of the Arizona attorney general to defend them in court when they’re challenged, and certainly that was my experience when I worked under Republican leadership at the Arizona Attorney General’s Office. 

I think it’s important for the judicial system, too, for judges to have an adversarial process when a law is challenged in court. I don’t think judges want just a one-sided presentation of the facts and the law, and so it’s a valuable part that the Legislature played in that in litigation over the last few years. I just think it’s good for the entire system that that authority exists for the Legislature to step in when the attorney general, for whatever reason, decides that she doesn’t want to defend the law. 

What kind of cases and issues are you going to be focused on in this new role?

I’m obviously excited to contribute to the firm’s appellate practice. So that’s something I’m really looking forward to. And litigation of constitutional rights. The cases that involve emerging technology and privacy interests are really fascinating. 

Fundamentally, those issues will continue to emerge in the courts when you think about AI technology. And in Arizona, privacy interests are even more protected than they are at the federal level. So I think those issues are really fun to litigate, and they’re just very important all around for Arizonans. And again, that goes to the protection of constitutional rights. 

While I was at the Attorney General’s Office, I was also involved in election integrity matters. I’m looking forward to gearing up for the election next year and expect that the firm will be involved in a fair amount of election litigation. 

Why Holtzman Vogel? 

I really admired the work that they’ve been involved in. To me, it really is very unique to come in at a time when the Phoenix office is still in a growth unit. So it’s really just an outstanding opportunity to help grow the direction of the Phoenix firm and even just bolster all of those areas that have already aligned with my background really well. 

In a more existential sense, why do you think your work in public policy, and now in private practice, is important? 

When we’re discussing constitutional rights and making arguments to set a precedent in Arizona for how courts will need to uphold and reflect additional rights in various contexts, I can’t imagine more rewarding work than that.

That’s why I’ve done this type of work for so long, and why I’m so excited to join the firm. As a lawyer in this space, I just find it incredibly rewarding to be talking about constitutional rights and doing whatever we can to protect them.

What would be your advice for your replacement in the House?

The job requires creativity, sometimes an open mind, and certainly a collaborative attitude and great communication skills. And it’s just incredibly fun. I look back on my time here and truly enjoyed being the general counsel for the Republican majority. I had the ability to meet all the elected leaders throughout the state, reach their goals, and create a good product for the people of Arizona. It’s really unlike any other job. I guess I would tell the next person to keep an open mind, to be supportive in this role, and help essentially write laws for the state that would be long lasting and be so important in years to come.

What guides you in this work? 

My husband and I have two children, and they’re nine and 11 now. They’re being raised in Arizona. Of course, through my line of work, I think of them, and I think about the future that we’re creating in Arizona. And of course, that’s always my motivation and my guiding star.

What is something the average person might not know about you? 

My interest these days is being a soccer mom. Both of my kids play competitive soccer. And to bring it back briefly, to how that relates to my job, is that it comes to mind that when the speaker and the president intervene to defend Arizona’s Save Women’s Sports Act … that really hit home for me, because I have a nine year old daughter who plays in a competitive sport. I just think fundamental fairness in girls sports is so important because I see it, you know, in my own life.  

And so those issues do really hit home for me … I’m a soccer mom. I’m usually running kids around to soccer practice at least a few times a week … We just really enjoy this phase of life with them. They’re wonderful kids, and they keep us young.

Constitution Day and the power of states

Lisa Fink

Every year on Sept. 17, we mark Constitution Day — an opportunity to reflect both on the genius of the document, but also on the system of government it established. All too often, our political attention is fixated solely on Washington — Congress, the president, the Supreme Court. However, the Framers never intended for all authority to flow from the nation’s capital. They not only instituted horizontal separation of powers (legislative, executive and judicial) but also vertical separation of powers (national, state and local,). This structure provided the states with the authority to be a barrier or check against federal overreach.

The Constitution created a national government with limited and enumerated powers. The Tenth Amendment is very clear, “The powers not delegated to the United States by the Constitution… are reserved to the States respectively, or to the people. As James Madison explained in Federalist 45: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.”

The Framers’ design was deliberate because they understood that concentrated power often leads to abuse. Madison proclaimed that “State Legislatures (are) to be (the) sure guardians of the people’s liberty.” The states were to guard against federal encroachment, keeping decisions about schools, public safety and infrastructure close to the people most affected by them.

However, in recent decades, power has steadily drifted toward Washington D.C. Congress has passed sweeping mandates that reach deep into state affairs. Federal agencies have imposed regulations with little regard for local realities. And even the courts, intended to be neutral arbiters, have sometimes expanded federal reach rather than restraining it. The result is an erosion of the balance the Constitution sought to protect.

Restoring that balance is a passion of mine and will require that states reclaim their rightful role. Governors, legislatures, and local officials have both the constitutional authority and the civic duty to stand firm when federal laws and policies stray beyond their proper bounds. We’re not rejecting collaboration with Washington, but when we experience this overreach, we’re obliged to push back and return those decisions that belong closer to home.

It also means strengthening local sovereignty. When local leaders are empowered to govern effectively, they provide a powerful counterweight to centralized power.

There is, however, one challenge the Framers could not have anticipated: the flood of money into state politics from out-of-state and even international sources. Such spending distorts representation and weakens accountability. In the true spirit of the Constitution and federalism, if we are serious about re-centering power in the states, we must also ensure that state policy reflects the will of those who live there — not the priorities of distant donors.

Constitution Day is a reminder that America’s strength lies not in power concentrated in Washington, but in power shared among fifty states, thousands of communities and her citizens. Preserving that design is how we safeguard liberty for all— and how we keep faith with the Constitution.

Lisa Fink is a Republican Arizona representative for Legislative District 27.

Right to remain silent challenged in Arizona Supreme Court

The Arizona Supreme Court has ruled that the decision to remain silent, a constitutional right, can, in certain circumstances, be held against someone accused of a crime.

And the key to those who want to protect that right is to refuse to answer any questions at all.

In a unanimous decision Friday, the justices rejected claims by Giovani Melendez that he was entitled to answer only some questions by police when he was arrested. During an interview, Melendez told police the shooting of someone else was self-defense, but declined to respond to other questions.

More to the point, Justice John Lopez, writing for the unanimous court, said there was nothing wrong with prosecutors not only questioning Melendez on the stand about his decision to not answer some of the questions, but then pointing out that fact to jurors who eventually convicted him.

Lopez acknowledged in Friday’s ruling that the Fifth Amendment protects the rights of individuals to refuse to talk to police.

That is enshrined into practice with the 1966 Miranda ruling by the U.S. Supreme Court that says suspects must be informed of their constitutional rights, including the right to remain silent and their right to an attorney, before questioning them in custody. That precedent also says the decision to invoke that right can’t be used against them at trial.

But in this case, Lopez said, Melendez was “selective” in his silence. And that, he said, entitled prosecutors at his trial to ask him, in front of a jury, about the questions he refused to answer.

Friday’s ruling is significant, and not only because of the precedents it sets for future police questioning and trial tactics that can be used by prosecutors.

It comes more than a year after the state Court of Appeals reached a contrary ruling. There, the judges voided the conviction, pointing out that Melendez repeatedly told the detective he did not want to talk about the shooting, and that the detective, in her responses to him, affirmed that was his right.

The arrest stems from a 2019 incident where Melendez returned to an apartment complex where he used to live, a complex that also hosted church services.

According to court records, he parked his car, walked toward the child of the pastors, and asked “Are you the pastor’s son?” The boy responded affirmatively and began walking toward Melendez.

At that point, Melendez pulled a gun and fired multiple shots at him. Each shot missed and Melendez drove away.

Officers later took him into custody and into a nearby precinct where they informed him of his Miranda rights. He said he didn’t want to talk any more and that interview ended.

Later, at the Phoenix police station, Melendez was again informed of his rights.

At that point, he made some comments. But when asked about why he shot at the child, he said “I want to hold some stuff I want to say” and “I still want to hold myself on some things.”

Only later did he say that he was acting in self-defense.

Melendez offered the same defense at his trial. However, the prosecutor then began questioning him about his decision to pass on some questions, especially since his claim of self-defense came only after he was informed he was going to jail.

And during closing arguments, the prosecutor urged the jury to question Melendez’s self-defense claim because a “reasonable person” would have answered the questions about the motive if he “really shot in self-defense.”

The jury sided with the prosecutor’s version of what happened, found him guilty of aggravated assault, and a judge sentenced him to a presumptive term of 7.5 years in prison.

When Melendez appealed, an attorney for the state argued that he had effectively waived his Fifth Amendment rights because he did not remain completely silent. Appellate Judge Michael Brown said he and his colleagues weren’t buying that.

“Nothing in the Miranda warnings informs a suspect that if he relies on his Fifth Amendment right to be silent, completely or partially, his exercise of that right can be used against him at trial,” wrote Brown in overturning the conviction.

“The warnings required by Miranda would have to be amended to inform a suspect that not only what he says may be used against him, but what he does not say will also be used against him,” Brown wrote.

“The warnings have not been amended,” he said. “And allowing the state to penalize a defendant at trial for his earlier silence when he was not informed of that consequence would improperly relieve the state of its burden to prove waiver.”

Lopez, writing Friday for himself and his colleagues, said that appellate court ruling misunderstands the nature of Miranda warnings.

“Once an individual invokes his right to remain silent, police must cease questioning,” Lopez acknowledged. “Prosecutors may not comment at trial on a defendant’s post-invocation silence.”

But he said all that changed when Melendez agreed to answer some questions at the police station.

“We cannot conclude he unequivocally and unambiguously invoked his right to remain silent in his second interview when he stated that he would ‘hold’ and ‘pass’ on answering certain questions ‘for now,”’ Lopez wrote.

“Indeed, Melendez’ mid-interview statement that he was willing to continue the interview buttresses this conclusion,” he said. “Melendez’ statements are more aptly characterized as tactical deferrals to responding to specific questions than unequivocal refusals to answer.”

And what all that means, Lopez said, is that the prosecutor did nothing wrong in asking Melendez about the questions he did not answer.

“Here, the prosecutor’s cross-examination of Melendez is more akin to permissible impeachment,” the justice said, where the witness is being asked about any “prior inconsistent statement” in an effort to convince jurors that the testimony is not credible. And that, said Lopez, is different than asking defendants why they refused to answer any questions at all, something that clearly is prohibited.

Anyway, Lopez said, the prosecutor in his statements to the jury was not commenting on his silence but what the court called “wavering tactical deferrals” by Melendez in his interview which he was using “as a ploy to stall his answers until he knew what witnesses had told police about the shooting.”

Slimmed-down version of ‘weapons of war’ measure advances

Arizonans who want to possess everything from pipe bombs to hand grenades will have to instead settle for automatic weapons, sawed-off shotguns and silencers.

Rep. Alexander Kolodin argued Feb. 12 to the House Judiciary Committee that there’s no reason for the state to use its powers to limit the ability of Arizonans to defend themselves. And that, the Scottsdale Republican said, includes not just traditional firearms but even what he called “weapons of war.”

Kolodin said he was under no illusion that if legislators adopted his HCR 2037 and voters approved that Arizonans would suddenly be able to have rockets, Molotov cocktails or improvised explosive devices, all considered felonies under Arizona law. Repealed or not, those would remain illegal under federal law.

Alexander Kolodin
Alexander Kolodin

He said, though, that the state is under no obligation to help the feds enforce those laws by having parallel laws of its own. In fact, Kolodin pointed out, the Arizona Constitution has even broader protections on the right to bear arms than the Second Amendment to the U.S. Constitution.

But his legislation took a turn when Rep. Quang Nguyen, who chairs the Judiciary Committee through which the bill must pass, stripped out much of what Kolodin sought to make legal, at least under Arizona law. What was left after the action by the Prescott Republican was only the things already allowed by federal law.

Asked to explain his move, Nguyen responded, “Nope.”

And Kolodin went along.

He said it came down to the political reality of what was needed to get his issue through the committee. In the end, however, Kolodin said he would rather have at least a partial victory to let Arizonans finally possess things that federal law already allows – albeit to not just everyone.

Like silencers.

They are regulated – not banned – by the National Firearms Act. Possession requires passing a background check, being legally eligible to purchase a firearm, and paying $200 for a federal tax stamp.

But in Arizona, it’s a crime to have “a device that is designed, made or adapted to muffle the report of a firearm. Under HCR 2037, if approved by voters, that prohibition would go away.

Ditto an Arizona law that makes it illegal to have a firearm capable of shooting more than one shot automatically. This, too, is legal under federal law with approval from the Bureau of Alcohol, Tobacco, Firearms and Explosives.

And also gone would be a state law that outlaws rifles and shotguns with an overall length of 26 inches. something also allowed under federal law for those who can pass the background check and pay the federal tax stamp.

All that is far less comprehensive than Kolodin wants – or said he believes are the rights to which Arizonans are entitled. And he said it comes down to whether the laws on the books here are constitutional.

Including “weapons of war.”

“Our framers (of the Constitution) intended us to have those weapons of war to keep the government, which is our servant, in check,” Kolodin told colleagues on the committee.

“If the right to bear arms ‘shall not be infringed,’ how can we have a category of weapons that are prohibited?” he continued. “As a citizen of this state, I find it insulting.”

And Kolodin argued this is even bigger than constitutional guarantees, saying he wants to “reclaim the liberty that God has really given us because that’s where our rights come from.”

His arguments about citizens having the same weapons as the government took on religious overtones, saying the issue is “very personal” for him as a Jew.

“Historically, a lot of people haven’t cared for us Jews and, in fact, tried to kill us,” Kolodin said.

“Right now our government … is putting a restriction on my ability to defend myself and my family,” he continued. “And they’re not putting a cop outside of my door at night.”

More to the point, he said that’s not the duty of the government. Instead, said Kolodin, people have a duty to defend themselves.

That ability, he said, is what made life better for his family than for Jews who stayed in Europe in the 20th century who “had an awful time.”

“It’s time for the state to get out of the way,” said Kolodin.

What Kolodin was able to get through the committee after his bill was amended by Nguyen, however, was just part of what he wanted. Still, he said removing the prohibitions that now exist in Arizona law against possession of what is permitted by federal law is a victory.

“I will take my fully automatic rifles and my suppressors, thank you very much,” Kolodin said. “That’s a lot of what I wanted,” he said. “A step at a time.”

Only Anne Thompson, a volunteer from Moms Demand Action which lobbies for gun regulation, testified against the bill. But most of her comments were against the original bill to legalize weapons not permitted under federal law.

Even in stripped-down form, the measure was approved by the committee on a 6-3 vote, with all three Democrats on the panel opposed.

The amended measure now needs approval by the full Senate.

 

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