The Case Against the Confirmation of John Ashcroft As Attorney General of the United States: Part II

Attorney General, Ashcroft also opposes Equal Rights Amendment.

Finally, highly publicized litigation Ashcroft initiated as Attorney General raises further concerns about his views on civil rights and liberties. During the late 1970s, when John Ashcroft first served as Missouri Attorney General, women’s rights advocates were engaged in a nationwide effort to secure ratification of the proposed Equal Rights Amendment to the U.S. Constitution, which Congress had passed in 1972. Ashcroft opposed the ERA. Only three more states were needed to ratify the ERA and Missouri was one of only 15 states that had not done so.

In 1977, with the ratification deadline approaching, the National Organization for Women helped organize a boycott of states that had not ratified the ERA, to persuade organizations that supported the ERA not to hold their conventions in those states. The goal of this boycott was ratification of the ERA. In early 1978, Ashcroft, as the Attorney General of Missouri, brought a federal lawsuit on behalf of the state against N.O.W., claiming that the organization had violated the Sherman Act, a federal antitrust law prohibiting combinations in restraint of trade. Ashcroft filed this suit even though the boycott was not commercially motivated but had been undertaken to advance a legislative goal, N.O.W. was not a competitor of Missouri businesses, and N.O.W. had no control over whether any other groups took their convention business to Missouri.

This lawsuit, if successful, could have stifled N.O.W.’s free speech rights and political activities. It was soundly rejected by the United States District Court, which held that the antitrust laws did not apply to a noncommercial, politically-motivated boycott. Missouri v. National Organization for Women, 467 F. Supp. 289 (W.D. Mo. 1979). The trial court stated that "[a]pplication of the Sherman Act to N.O.W.’s boycott campaign also would involve serious questions concerning the right of petition and the freedom of association protected by the First Amendment." Id. at 304.

Nonetheless, Ashcroft filed an appeal on behalf of Missouri with the United States Court of Appeals for the Eighth Circuit. The Court of Appeals, in a 2-1 decision, upheld the lower court ruling in favor of N.O.W., stating that "the right to petition is of such importance that it is not an improper interference even when exercised by way of a boycott." Missouri v. National Organization for Women, 620 F.2d 1301, 1317 (8th Cir. 1980). Ashcroft then asked the United States Supreme Court to hear the case; the Court refused. Missouri v. National Organization for Women, 449 U.S. 842 (1980)(denying cert.). It had taken N.O.W. more than two and a half years of litigation to prevail in this lawsuit.

Ashcroft’s litigation against N.O.W. not only evidenced his disdain for the anti-discrimination movement seeking to establish without question women’s right to equality under the Constitution, but produced evidence of his ties to right-wing organizations, which became even more apparent in later years. For example, early in the litigation against N.O.W., relentless ERA-opponent and radical right leader Phyllis Schlafly wrote a note to Ashcroft (whom she addressed as "Dear John") concerning the lawsuit that thanked him for his "leadership in this matter." (Schlafly signed the letter "Faithfully, Phyllis".) Letter from Phyllis Schlafly to John Ashcroft (Mar. 28, 1978).

It is well known that Schlafly’s Eagle Forum had opposed the ERA in part by using gay-baiting tactics, claiming that the ERA would be used to advance gay rights. For example, the Eagle Forum frequently linked N.O.W., which it called "[t]he principal organization spearheading the political push for ERA," with support for lesbian rights. And in a publication entitled "The ERA-Gay Rights Connection," the Eagle Forum called on ERA proponents to "prove that ERA will NOT lock ‘gay rights’ into the U.S. Constitution."

Ashcroft was repeatedly criticized for bringing and pursuing the lawsuit against N.O.W. In fact, when Ashcroft’s plans to file suit had become public, the St. Louis Post-Dispatch urged him not to proceed, citing N.O.W.’s free speech rights:

    When the National Organization for Women, or any other group, advocates a convention boycott of states that have not ratified the Equal Rights Amendment, it is exercising the basic American right to free speech. Missouri Attorney General John D. Ashcroft should realize that and should decide not to file suit against NOW charging it with restraint of trade. NOW does not have the power to force any organization to choose one location over another; but it does have the right to ask other groups to use a state’s record on the ERA in choosing a convention site.

    "Ashcroft and the ERA," St. Louis Post-Dispatch (Feb. 27, 1978).

Ashcroft went ahead with the suit. After the District Court ruling in favor of N.O.W., the St. Louis Post-Dispatch wrote:

    Judge Elmo Hunter’s decision is a reaffirmation of the First Amendment right of all Americans to advocate the use of economic leverage as a means of political protest. . . The point that Mr. Ashcroft missed completely is that all that NOW has at its disposal is an idea - that persons or organizations that believe in the ERA ought not to reward non-ratifying states with their business. With that, one is free to agree or disagree. But beyond stating its case, NOW is powerless to compel anyone to abide by its position. . . All NOW can do is make its case and hope that it is persuasive. . . To deprive NOW of that single weapon would have been to deprive it of one of America’s most cherished freedoms, the right to advocate ideas. That is the mischief Mr. Ashcroft tried unsuccessfully to accomplish.

    "A Lesson for Mr. Ashcroft," St. Louis Post-Dispatch (Feb. 22, 1979) (emphasis in original).

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