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Bob Marshall

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Leftists resurrecting ‘Equal Rights Amendment’ to make US Constitution pro-abortion

Bob Marshall

November 7, 2019 (LifeSiteNews) — Equal Rights Amendment (ERA) proponents have been misleading the public about the purpose and consequences of the ERA for close to 50 years!

Their current three-state ERA ratification ruse is a revolutionary act on the part of progressives to place the legal authority for the killing of unborn children into our Constitution, and not to simply rely on the Roe v. Wade and Doe v. Bolton Supreme Court decisions. In fact, at a shadow hearing on the ERA on June 6, 2018, Congressman Jerrold Nadler (D-N.Y.), chair of the U.S. House Judiciary Committee, said:

We cannot trust the Supreme Court not to go back. What the Supreme Court giveth, the Supreme can taketh away[.] ... [W]e are worried now that another Supreme Court nominee might overturn Roe v. Wade.

Further, state and federal courts have concluded that state ERAs or similar “equal treatment” provisions of state constitutions require tax-paid abortions in Connecticut, Alaska, Arizona, Indiana, New Jersey, New Mexico, and Colorado [Doe v. Maher, Conn., 1986; State v. Planned Parenthood of Alaska, 2001; Simat Corp. v. Ariz. Health Care Cost Containment Sys., 2002; Humphreys v. Clinic for Women, (Indiana 2003); Right to Choose v. Byrne, (N.J. 1982). New Mexico Right to Choose — NARAL v. Johnson, (1998); Colorado Civil Rights Commission v. Travelers Insurance Co. (1988)].

The ERA failed in 1982 because 35, not 38 states, as required by Article V of our U.S. Constitution, ratified the ERA by its ratification deadline. Undeterred by a simple thing like our Constitution, in 2019, Congresswoman Jackie Speier (D-Calif.) introduced H.J. Res. 38, pretending the congressionally established 1982 ERA ratification deadline could simply be scrapped almost four decades later! This maneuver would fraudulently count the 35 almost 40-year-old state ratifications of the ERA secured before 1979 toward adoption of the ERA now and permit only three additional states to ultimately “ratify” the ERA. If you can believe this, ERA advocates also claim that Nevada ratified the long expired ERA in 2017 and Illinois in 2018.

This pie-in-the-sky maneuver has nothing to do with reality and everything to do with political machinations, but in the Left’s handbook, the ends justify the means. Thus, ERA proponents now claim that with House and Senate passage of H.J. Res. 38, only three more state “ratifications” will add the ERA to our Constitution!

The ERA has been sold to Americans as promoting simple “equality” and “putting women into the Constitution,” and mandating “equal pay for equal work” but this explanation is far from the truth!

The ERA’s basic language reads, “Equality of rights under law shall not be denied or abridged ... on account of sex.” The ERA was sent to the states on March 22, 1972 and would become, in the words of the ERA resolution, “part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years of its submission by the Congress.”

When ERA advocates realized they would not gain enough states to ratify by the deadline, they convinced Congress in 1978 to extend the ratification deadline three additional years and three months. Despite the extension, the ERA failed to gain the required state ratifications.

A review of the ERA hearings in Congress, floor debate, court cases, law review articles, and written goals of pro-ERA organizations proves that at least the following legal consequences would follow if the ERA were to be adopted licitly or illicitly:

The ERA would:

  • prohibit any restrictions on abortion or its tax funding;
  • compel women/girls to compete against men/boys in sports;
  • abolish female privacy in prisons, locker rooms, women’s shelters, nursing homes, hospitals;
  • subject women to selective service registration and front-line ground combat;
  • end all incentives for women-owned businesses;
  • end female scholarships;
  • end women-only sports programs;
  • abolish alimony guidelines;
  • end lower auto and other insurance rates for women;
  • treat any legal distinction based on sex the same as racial discrimination.

Another serious issue that was not specifically addressed during consideration of the ERA in the 1970s was “transgenderism.” Surely, adoption of the ERA would cement same-sex “marriage” and “transgender rights” into our Constitution to provide a much firmer foundation than court opinions.

The ERA Means Identical, Not Equal, Treatment of Men and Women

ERA proponents insist they want men and women to be treated identically. However, sexual differences flowing from the Creator’s handiwork cannot be changed by human laws.

At a September 15, 1970 Senate Judiciary subcommittee hearing, Yale Law professor Thomas Emerson, the legal “brain trust” for ERA proponents, affirmed this ERA thesis:

The proposed amendment states clearly and simply the fundamental objective: Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. ... The term ‘equality,’ as used in the amendment ... means that women must be treated by the law in the same way as other persons, that is, their rights must be determined on the basis of the same factors that apply to men. The factor of femaleness or maleness is irrelevant. ... [F]or much the same reasons as in the racial area, the clause would not sanction ‘separate but equal’ treatment. Power to deny equality of rights on account of sex is wholly foreclosed.

In March 1971, ERA-supporter Congresswoman Bella Abzug (D-N.Y.) testified before a House of Representatives Judiciary subcommittee that “the amendment itself ... would wipe the slate clean ... eliminate all present legal distinctions based on sex, and would reject the presumption that sex is ever a reasonable legal classification.”

A month later, in April 1971, William Rehnquist, later chief justice of the Supreme Court, also testified before the House Judiciary subcommittee on behalf of President Nixon’s Justice Department. He said the ERA’s “broad general language ... would ... add substantial uncertainties in this area of constitutional law which would probably require extensive and protracted litigation to dispel[.] ... We would have some doubt as to whether there is a national consensus for compelling all levels of government to treat men and women across the board as if they were identical human beings.”

The next day, Harvard Law professor Paul Freund told the same House Judiciary subcommittee that for more than forty years, ERA absolutists had pursued the strict scrutiny ERA but that many women’s rights organizations had opposed the ERA as strictly interpreted. Freund pointed out: “This course has been opposed by individuals and groups whose commitment to civil rights and women’s rights is not in question: groups that include the National Council of Negro Women, the National Council of Catholic Women, the National Council of Jewish Women, the Association of University Women, and the Commission on the Status of Women, appointed by President Kennedy and chaired by Eleanor Roosevelt.”

University of Chicago Law professor Philip Kurland noted that the controversy surrounding the ERA “derives from the fact that the movement for ‘women’s rights’ is Janus-faced. The proposed amendment presented one aspect, while much of it was voiced in terms of its other visage. The first would command the treatment of men and women as if there were no differences between them[.] ... It was a demand for legal ‘unisex’ by constitutional mandate[.] ...

The second attitude towards ‘women’s rights’ would only seek the elimination of discrimination against women, a ban on treating females as a disabled class[.] ... The debate ... is seriously hampered by its supporters’ indecisiveness about its effects and duplicity about its meaning” (Harvard Civil Rights — Civil Liberties Law Review, Vol. 6, 1971).

The “indecisiveness” mentioned by Kurlund was over not what the pro-ERA feminists wanted, but how candid they would be with the general public about the legal effects of the ERA as they did not want to generate organized opposition in states that were yet to consider ERA ratification. Thus, as Professor Kurlund noted, ERA proponents resorted to duplicity, a tactic that continues to this day.

All Proposed Amendments to the ERA Fail

In both the U.S. House and U.S. Senate, all amendments to blunt the radical legal effects of the ERA failed.

Sen. Samuel Ervin (D-N.C.) offered amendments that would have prevented the ERA from being applied to state and federal laws. His amendments sought to exempt women from compulsory military service and assignments to combat; exempt wives, mothers, and widows from being treated in the law as men; continue to require child support by fathers; protect personal privacy for men, women, boys, and girls; and keep on the books sexual crimes such as rape, seduction, and other sexual offenses. All of these amendments failed in the U.S. Senate by wide margins.

Amendments in the U.S. House of Representatives met with a similar fate. Congressman Charles Wiggins (R-Calif.) offered an amendment: “This article shall not impair the validity of any law of the United States which exempts a person from compulsory military service or any other law of the United States or of any State which reasonably promotes the health and safety of the people.”

Congressman Wiggins gave his reasons for the modified ERA as follows:

“This recommendation of the committee does two things. One, it makes it clear that Congress may continue to exempt women from compulsory military service; and two, neither Congress nor State legislatures would be paralyzed from taking differences between the sexes into account when necessary and reasonable to promote, in fact, the health and safety of the people” (Congressional Record 10/6/71).

The Wiggins Amendment lost.

The loss of those amendments left the ERA’s radical feminists in complete charge of the future of the ERA. The Senate passed the House-originated ERA on March 22, 1972, and it was sent to the states for ratification, with the seven-year time limit imposed by Congress ending on March 22, 1979. Passage of the ERA seemed inevitable in light of the thirty states that had ratified the ERA within the first year of its passage by Congress.

Attempts to Rescue the ERA from Failure

But the feminists hit a ratification brick wall in Phyllis Schlafly and the women of Eagle Forum, who exposed the real agenda of the ERA, bringing the ERA ratification efforts to a sluggish crawl. Only five states ratified the ERA in the next six years. Mrs. Schlafly and her followers also convinced five states to rescind their prior ratifications: Nebraska in 1973, Tennessee in 1974, Idaho in 1977, Kentucky in 1978, and South Dakota in 1979.

By 1977, the following 15 states had not yet ratified the ERA: Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South Carolina, Utah, and Virginia.

With panic rising, ERA groups hit upon a novel ERA rescue effort. They would “extend” the ERA ratification time limit, a tactic that had never been tried. They sought to do so by a simple majority vote, not a two-thirds vote, required for constitutional amendments to pass. Pro-ERA groups demanded seven more years to ratify the ERA.

No amendment added to the Constitution had ever taken more than four years to be ratified by the states at that time. Congress nevertheless held ERA extension hearings in 1978 with pro-ERA leaders as leading witnesses.

Eleanor Smeal, then president of the National Organization of Women (NOW), told a House Judiciary subcommittee in May 1978, “The reason why we are currently in a state of emergency on the ERA in our organization is that we believe the life of the equal rights amendment is indeed in peril. ... So we implore that you do not close the door on constitutional equality for women in this century; and that you vote to extend the time limit[.]”

Smeal also stated, “Congress has the unreviewable authority ... as interpreted by the Supreme Court, to determine in advance the time (emphasis added) within which a proposed amendment must be ratified[.]”

During the 1978 House Judiciary ERA hearings, NOW’s Eleanor Smeal referred to its legal brief prepared by ERA “brain trust” Thomas Emerson of Yale, Lawrence Tribe of Harvard, Ruth Ginsburg (now U.S. Supreme Court justice) of Columbia, and others. The NOW brief cited Dillon v. Gloss (1921) which stated in part:

Congress has the unreviewable authority ... as interpreted by the Supreme Court, to determine in advance the time within which a proposed amendment must be ratified.

Also testifying before the same House Judiciary committee was an associate of Smeal’s, Marjorie Bell Chambers, American Association of University Women president, who said:

We do not ask for unlimited time ... (emphasis added). Failure to extend now the time limit for ratification of the Equal Rights Amendment would terminate ... what Congress initiated six years ago.

Today, pro-ERA groups, including NOW, have completely reversed themselves. They now want to remove all time limits on ERA ratification. They no longer believe that Congress must re-pass the ERA with a two-thirds vote and re-submit the ERA to the states for approval by 38 states, as required by Article V of the Constitution. Proponents now claim that the previous state ratifications can be revived decades after expiration, and they refuse to recognize rescissions by states of their prior ERA ratifications.

In short, heads, they win; tails, we lose!

What’s the Constitution among Friends?

This ERA “shortcut” tactic formally surfaced in a 1997 William and Mary Journal of Race, Gender and Social Justice article (Vol. 3, Issue 1, Article 5) that falsely claimed that only three more states were needed to “ratify” the ERA, as 35 other states had already ratified the ERA and their past expired ratifications could be applied without starting over! They based this theory on the adoption of the Madison Amendment affecting congressional pay, introduced in 1789 and not ratified until 1992. However, the Madison Amendment never had a time limit! The ERA had two different time limits set by Congress.

Moreover, during congressional debate certifying the Madison Pay Amendment as part of the Constitution, Congressman Don Edwards (D-Calif.), Chair of the House Judiciary subcommittee that also held hearings on the ERA, stated (emphasis added):

Mr. Speaker ... I will certainly support the [Madison] resolution before us today. ... But there is another, broader issue here that must not be lost sight of, and that is the Constitution itself. The House may decide today to make an exception to the principle of contemporaneous consensus that has been a guiding constitutional principle for most of this century. But it should be clear that this is an exception, not a precedent. (Congressional Record, House of Representatives, 05/20/92, p. 3,397)

This “three-state” ploy was cooked up because the last time pro-ERA forces were able to muster two thirds of Congress to submit the ERA to the states was in 1972, when it first passed Congress.

When the “extended” ERA also failed to be ratified by enough states by June 1982, proponents had no choice but to reintroduce the ERA in Congress, which it did in 1983 with identical wording from 1972. Amendments offered in the House Judiciary Committee included language to make the ERA abortion-neutral, to exempt women from the military draft and front-line ground combat, to allow different insurance rates for men and women, and others. All of the amendments failed. The ERA was reported by the Judiciary Committee to the House but failed to secure a two-thirds vote in the U.S. House of Representatives in 1983.

The Senate Judiciary Committee did not even bother to report the ERA out of committee to the full Senate in 1983 or 1984. Since then, the ERA has been reintroduced into every Congress but has never passed. Thus, ERA proponents needed a devious, unconstitutional way to advance their agenda.

ERA proponents who lobbied Congress in the late 1970s to extend the ratification deadline, when they feared it would expire, now claim that ratification deadlines do not even exist! Obviously, they do not care about publicly contradicting themselves. Pro-ERA forces actually convinced two state legislatures, Nevada in 2017 and Illinois in 2018, to go through the motions of allegedly “ratifying” the ERA decades after Congress imposed the ratification deadline of June 30, 1982.

Nevada and Illinois passed their meaningless ERA “ratifications” some 35 or 36 years too late to be counted legitimately, and they obviously ignored H.J. Res. 688, introduced in 1978, which purported to add 39 months and a few days to the ERA ratification period. That joint resolution stated that the ERA “shall be part of the Constitution when ratified by the legislatures of three-fourths of the several States not later than June 30, 1982.” The Progressive Left must believe, “What is the Constitution among friends?” Did they think Congress was kidding when it established deadlines?

Justice Ginsburg and the Three-State ERA Ratification Ploy

Some prestigious conservative media appear to be taking a comment made by Justice Ginsburg at Georgetown Law School (9/12/19) as an indication that the justice has expressly rejected the three-state tactic.

Justice Ginsburg simply told Georgetown Law School students: “I hope someday it [ERA] will be put back in the political hopper and we’ll be starting over again collecting the necessary states to ratify it.”

According to press reports, she said nothing for or against the ERA three-state ratification tactic. Nor did she say the only way the ERA can become part of the Constitution is by Congress starting over by reintroducing a new ERA, passing it with a two-thirds vote, and securing ratification by the legislatures of 38 states.

Moreover, while I would like to believe that Justice Ginsburg would indeed respect our Constitution, we have no assurance that she would actually oppose adopting the ERA with three more states “ratifying” after the 1982 deadline expired, should a court dispute arise from a “third” state legislature “ratifying” the ERA.

Has Justice Ginsburg Really Changed Her Mind on ERA Ratification?

Justice Ginsburg has advocated for the ERA over her professional lifetime. In 1971, when she was a law professor at Rutgers, she wrote in support of the ERA to Congressman Don Edwards, who chaired the House Judiciary subcommittee that held hearings on the ERA. She calls the ERA her favorite amendment. In 1977, she co-authored Sex Bias in the US Code based on passage of the ERA. I am just not convinced that she would abandon the ERA “shortcut.”

None of the hard-line ERA proponents or pro-ERA feminist organizations mention Justice Ginsburg’s alleged abandonment of the three-state tactic. None of these pro-ERA organizations or members of Congress has stopped lobbying for the “three-state strategy.” I could be wrong, but my experience from serving 26 years as an elected Virginia state legislator and six years as a congressional aide to both Republican and Democrat members of Congress, gives me no confidence that Justice Ginsburg could be counted upon to reject the three-state tactic should the matter be decided by the U.S. Supreme Court.

At the Judiciary Committee hearing to confirm Supreme Court justice Ginsburg, Sen. Orrin Hatch (R-Utah) told then federal Appellate Court judge Ginsburg:

The thing I am worried about is that it appears that your willingness to discuss the established principles of constitutional law may depend somewhat on whether your answer might solicit a favorable response from the committee.

She stated:

The courts don't react to public opinion polls. They do react to what Professor Freund described as, not the weather of the day, but the climate of the age [emphasis added]. I tried to explain that when I talked about the 19th amendment and the 14th amendment.

In Sex Bias in the U.S. Code, co-authored by Justice Ginsburg, she states:

Supporters of the equal rights principle firmly reject draft or combat exemptions for women as congress did when it refused to qualify the Equal Rights Amendment by incorporating any military service exemptions.

At her Supreme Court nomination hearing, Judge Ginsburg responded to a comment from Senator Kohl:

You are right in pointing out that the Supreme Court’s jurisdiction is discretionary[.] ... The Justices must look at what issues need to be decided most for the Nation, and that’s the basis on which the judges make their decisions about what to take.

Article III of the Constitution describes and defines federal judicial powers. The Constitution provides federal judges no legal authority to resolve “what issues need to be decided most for the Nation.”

The Supreme Court’s Dred Scott v. Sanford decision did not solve the slavery controversy or prevent the Civil War, and Plessy v. Ferguson established “separate but equal” racial segregation for generations. Federal judges will usurp legislative authority if legislators allow them to do so.

Clear majorities of Americans reject the policies and laws that the ERA would mandate:

80% oppose abortion a day before birth, (You.Gov poll for AUL, February 2019); 54% oppose tax funded abortion, 59% oppose abortion after 20 weeks, 62% oppose abortion for Down Syndrome (Marist Poll, January 2019).

Nevertheless, Justice Ginsburg might consider the “climate of the age” and simply rely upon a June 17, 2016 PR Newswire poll conducted for ERA Coalition/Fund for Women’s Equality that claims that 94% of Americans think the ERA should be ratified. This poll did not mention the actual legal or social consequences of the ERA, which are widely opposed by the public.

Judge Ginsburg specifically told Senator Simon at her hearing:

I can only tell you the code of conduct I would adopt for myself wherever I am, here or abroad, and that is the Constitution of the United States. I would consider it binding on me.

Yet Foreign Policy magazine (2/6/12) published an interview from Al-Hayat TV in which Justice Ginsburg stated:

I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012. I might look at the Constitution of South Africa.

I am not willing to bet my family’s future and that of our grandchildren on a very thin hope regarding what a very liberal justice might or might not decide regarding the ERA.

What if Justice Ginsburg’s statement is a “false flag” aimed at convincing anti-ERA forces to relax their opposition and to stop campaigning against pro-ERA candidates for office at both the state and federal levels?

Justice Ginsburg’s words about “starting over” could simply refer to passing H.J. Res. 38 in the current Congress to eliminate the second ERA ratification deadline of June 30, 1982, thus erasing any deadline for ERA ratification. ERA-supporters continue to claim that the original 35 state ratifications should count, while the five states that rescinded their ERA ratifications should not be recognized.

But Robert Jackson, U.S. solicitor general, argued in the 1938 case of Coleman v. Miller (re: Child Labor Amendment): “It is perhaps enough to say that distinguished authority, can be found for the view that, until an amendment has been adopted by the ratifications of three-fourths of the States, the States do have power to rescind their ratifications” (Brief for the U. S. Amicus Curiae, 10/8/1938).

Robert Jackson later served as U.S. attorney general, justice of the Supreme Court, and chief U.S. prosecutor at the Nuremberg War Trials and was the last justice appointed to the Supreme Court who read the law but who never graduated law school.

Perhaps most important, in 1982, then–U.S. solicitor general Lawrence G. Wallace petitioned the Supreme Court to dismiss all ERA cases, including the federal district court case of Idaho v. Freeman, because not a sufficient number of states had ratified the ERA. Idaho v. Freeman actually ruled that the congressional extension of the ERA was unconstitutional. Wallace’s July 1982 memo on behalf of the General Services Administration specifically stated that “the Amendment has failed of adoption no matter what the resolution of the legal issues presented here, and the Administrator informs us that he will not certify to Congress that the Amendment has been adopted.” The cases were dismissed.

John Harmon, assistant A.G. at the Justice Department under President Carter, wrote (10/31/77) to the Hon. Robert Lipshutz, President Carter’s counsel, that “[c]ertainly, if a time limit has expired before an intervening Congress has taken action to extend that limit, a strong argument could be made that the only constitutional means of reviving a proposed amendment would be to propose the amendment anew by two-thirds vote of each House[.]”

For congressional Democrats, most of whom believe that men can “become” women, their disregarding Article V of the U.S. Constitution, and thinking that three instead of 38 states are enough to ratify the ERA, is a snap.

“Ratification” by one more state would clearly trigger a federal court challenge. Exactly how Justice Ginsburg and her progressive colleagues would decide is anyone’s guess. While the Left does not now have a majority on the U.S. Supreme Court thanks to President Trump’s nominees, a Democrat president would certainly appoint “progressive” judges and justices. Recall that liberal former justice Thurgood Marshall, in a 1987 speech, called the Constitution a “Living Document.”

Anyone who doubts such judicial “flexibility” should ponder that the U.S. Supreme Court has reversed its prior decisions more than 230 times since 1790, according to the Library of Congress.

Citizen Action to Stop the ERA

I strongly advise caution in reading too much into Justice Ginsburg’s comments, given her decades of advocacy for the ERA and the ERA’s failure to pass Congress year after year since being “put in the hopper” after it expired in 1982.

Might “conservative” state legislators think it would be “safe” to “ratify” the ERA because it is only a “symbolic vote” at this point? That call for legislators to cast a “symbolic vote” was touted by the Republican state senator and author of the 2019 resolution to “ratify” the ERA in the Virginia General Assembly. I highly doubt that the ERA proponents expected that vote to be merely “symbolic.”

In 1972, everyone understood that the word “sex” meant male and female in their biological aspects. “Sex” had a clear meaning when used in the Nineteenth Amendment securing women’s suffrage. But today the word “sex” has been expanded to include “sexual orientation” or so-called “gender identity.”

Today’s ERA advocates hope to bluff their way to ERA passage, hiding the underlying horrendous policies that would result by adopting the ERA. There are currently 211 co-sponsors of H.J. Res. 38, the legislation that pretends the ERA deadline can be removed after it expired almost 40 years ago.

If you live in any of the states that never ratified the ERA by or after 1982 (Alabama, Arkansas, Arizona, Florida, Georgia, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Utah, or Virginia) you must contact your state legislators and express unequivocal opposition to any version of “ratifying” the ERA by the fraudulent three-state process.

Also, please contact your U S. congressman and U.S. senators and explain your unwavering opposition to the three-state ERA ratification ruse. Your U.S. senators and representative will be voting yes or no on any effort to strip the 1982 deadline. If they do not agree with you, work to defeat them in the next election.

The ERA, if enacted, will further erode efforts to legally protect unborn children for decades. We must act and speak out in the face of this threat. Children’s lives and the future of Judeo-Christian institutions in America are truly at stake.

ERA zealots have made it clear they will not quit pushing their agenda. We must lobby state and federal legislators with the truth about the unconstitutional three-state ratification ruse as well as bring to light the ERA’s legal consequences. If legislators fail to see the light, they need to feel the heat in their next election.

Attorneys general of the states must be contacted and persuaded to oppose all congressional efforts to “legalize” previous state ERA ratifications, which expired decades ago, as part of the bogus three-state process.

These actions are needed because ERA proponents will undoubtedly claim that one more state ratifying the ERA will provide the 38th state needed to adopt the ERA into our Constitution.

There is a phrase in front of the National Archives Building in Washington, D.C., which houses copies of the original Constitution and the Declaration of Independence. It reads, “Eternal Vigilance is the price of Liberty. We must take these words to heart.


Bob Marshall won 13 general elections to serve 26 years in the Virginia House of Delegates. He formerly worked for three members of Congress. He co-authored, with Charles A. Donovan, Blessed Are the Barren, a Social History of Planned Parenthood (Ignatius Press, 1991) and Reclaiming the Republic: How Christians and Other Conservatives Can Win Back America (TAN Books, 2018). He is married 43 years to Cathy (Fonseca), is father of five and grandfather of nine children.

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