Protesters gather to call for the passage of the Equal Rights Amendment on Sept. 28, 2022, in Washington, D.C. Supporters showed up to support the passage of the Equal Rights Amendment as the 28th Amendment to the U.S. Constitution following oral arguments in the D.C. Circuit Court of Appeals over an ERA-related lawsuit. (Photo by Tasos Katopodis/Getty Images)
WASHINGTON — President Joe Biden released a statement Friday saying he believes the Equal Rights Amendment should be added as the 28th Amendment to the Constitution, despite a statement from the archivist of the United States that it cannot.
Biden’s three-paragraph announcement did not explain why he waited until the last few days of his presidency to make the declaration, even though he cited Virginia ratifying the ERA nearly four years ago.
“The American Bar Association (ABA) has recognized that the Equal Rights Amendment has cleared all necessary hurdles to be formally added to the Constitution as the 28th Amendment,” Biden wrote. “I agree with the ABA and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution.
“It is long past time to recognize the will of the American people. In keeping with my oath and duty to Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: the 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex.”
Archivist differs
Biden’s statement is in strong contrast to a written statement Archivist of the United States Colleen Shogan and Deputy Archivist William J. Bosanko released in mid-December that said adding the ERA as an official amendment to the Constitution wasn’t possible.
“At this time, the Equal Rights Amendment (ERA) cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions,” they wrote.
“In 2020 and again in 2022, the Office of Legal Counsel of the U.S. Department of Justice affirmed that the ratification deadline established by Congress for the ERA is valid and enforceable,” Shogan and Bosanko wrote. “The OLC concluded that extending or removing the deadline requires new action by Congress or the courts. Court decisions at both the District and Circuit levels have affirmed that the ratification deadlines established by Congress for the ERA are valid.
“Therefore, the Archivist of the United States cannot legally publish the Equal Rights Amendment. As the leaders of the National Archives, we will abide by these legal precedents and support the constitutional framework in which we operate.”
The ERA states that “equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex.”
ERA history
Congress approved the ERA as an amendment to the U.S. Constitution in 1972, starting off the ratification process that was originally supposed to last seven years.
Lawmakers later extended the ratification deadline until 1982, but only 35 states, not the required 38, ratified the amendment before that deadline, according to a report from the nonpartisan Congressional Research Service.
“In 2017, acting upon the notion that the ratification deadline could be disregarded, Nevada became the 36th state to ratify the amendment,” the CRS report states. “After Illinois and Virginia, acting upon the same premise as Nevada, ratified the ERA in 2018 and 2020, respectively, the states (Illinois, Virginia, Nevada) moved the Archivist of the United States to publish and certify the amendment as part of the Constitution.”
The archivist didn’t publish and certify the amendment at the time, leading Illinois, Nevada and Virginia to file a lawsuit in January 2020.
The U.S. District Court for the District of Columbia dismissed the case, saying the three states lacked standing. The D.C. Circuit Court upheld that ruling in February 2023, according to the CRS report.
‘A historic step forward’
Democratic Women’s Caucus Chair Rep. Teresa Leger Fernández, a New Mexico Democrat, released a written statement Friday that Biden’s declaration “marks a historic step forward in the fight to make sure that no one in this country is discriminated against based on their sex.”
“For generations, women have fought tirelessly to make sure that our Constitution explicitly guarantees equal rights for all. The Equal Rights Amendment is more than words on a page—it is a commitment to equal pay for equal work, protections against gender-based violence, and the dignity and opportunity that every woman, every family, and every individual deserves,” Fernández wrote. “As a woman, a mother, and Chair of the largest-ever Democratic Women’s Caucus, I commend this step as a testament to the power of persistence and progress.
“We will continue the work to make sure that the amendment is officially ratified so these rights are protected and implemented in every corner of America.”