Equal Rights Amendment: Biden Declares It Law, What’s Next?

On Friday, President Biden made a bold statement, declaring the Equal Rights Amendment (ERA) to the Constitution as “the law of the land.” This unexpected announcement, while celebrated by ERA supporters, holds no formal legal authority. The statement was made during a rally in front of the National Archives and has reignited debates around the amendment’s validity and future.

The Long Journey of the Equal Rights Amendment

The ERA, introduced in the 1970s, aims to guarantee equal rights under the law for all genders. Although Congress passed the amendment decades ago, it took until 2020 for the required 38 state legislatures to ratify it. However, this milestone occurred years after Congress’s original deadline, sparking controversy over its validity.

Proponents argue that the deadline, placed in the amendment’s preamble rather than its text, is non-binding. However, the national archivist has yet to certify or publish the ERA, a crucial step for it to be officially recognized as part of the Constitution.

Biden’s Statement and Its Implications

President Biden stated on Friday, “The Equal Rights Amendment is the law of the land now! It’s the 28th amendment to the Constitution now.” He shared that his decision came after consulting numerous constitutional scholars. Despite his confidence, Biden clarified that he would not order the archivist, Colleen Shogan, to certify the ERA, as her role is considered “purely ministerial.”

The White House acknowledged that the executive branch does not play a direct role in the amendment process. When asked about the ERA’s status, the National Archives cited a 2020 Justice Department opinion, which deemed the amendment expired due to the missed deadline. This position has remained unchanged.

Legal and Political Challenges Ahead

The ERA has long been entangled in legal disputes. In 2020, the Justice Department’s Office of Legal Counsel (OLC) declared the amendment invalid after its 1982 deadline passed. This opinion was reaffirmed in 2022. Archivist Colleen Shogan, appointed by Biden, stated during her confirmation hearing that the issue must be resolved by Congress or the courts.

Shogan reiterated this position recently, arguing that the National Archives cannot legally certify the ERA without further action from Congress or the judiciary. Biden’s statement raises questions about the weight of the OLC opinion, especially since the president appears to disagree with it. Legal experts suggest that this disagreement could lead to new legal challenges.

Democratic Lawmakers Push for Ratification

Biden’s announcement aligns with efforts by Democratic lawmakers like Sen. Kirsten Gillibrand, who see the ERA as a tool to protect abortion rights. Gillibrand has expressed confidence that the issue will ultimately reach the Supreme Court.

Martha Davis, a law professor at Northeastern University, noted that Biden’s timing could have been more impactful earlier in his presidency. “If this had been done weeks ago, it might have opened the door for legal action to compel the archivist,” Davis said.

Supporters Rally for Action

Following Biden’s declaration, about 40 ERA supporters gathered outside the National Archives, urging immediate certification. Rosie Couture, a young activist, stated, “Getting the ERA in the Constitution is the first step. Colleen Shogan, girl, you better sign this super fast.” Couture has been a vocal advocate for the ERA since high school.

Although some supporters wish Biden had acted earlier, they remain optimistic. Zakiya Thomas, president of the ERA Coalition, emphasized the importance of the statement, saying, “I wish he had acted sooner, but I’ll take it. The act itself is significant.”

A Long Road Ahead

While Biden’s announcement has reignited the ERA conversation, it doesn’t resolve the legal and procedural hurdles. Congress or the courts must address the ratification deadline before the ERA can officially become part of the Constitution. Until then, the debate over gender equality and constitutional rights continues. read more