In a bold and surprising move, President Joe Biden declared that the Equal Rights Amendment (ERA) has met the necessary requirements for ratification and is now officially part of the U.S. Constitution. Speaking on Friday, Biden proclaimed that the amendment is now the “law of the land,” guaranteeing equal rights and protections under the law to all Americans, regardless of sex. This announcement came with the assertion that the ERA should now be recognized as a foundational piece of legal protection against sex-based discrimination.
However, despite the president's strong statement, legal experts point out that his declaration holds little actual legal weight. While Biden's proclamation echoed optimism for equality, it didn’t address some key steps that would make the ERA a legal reality. For example, the president did not order the United States archivist to officially publish the ERA, nor did he direct the Department of Justice’s Office of Legal Counsel to revise its earlier opinion that the ratification deadline had long since expired. Without these actions, experts argue, Biden’s comments on the ERA's legal status fall short of creating real change.
The Legal Roadblock: The Ratification Deadline
One of the most significant hurdles in the journey to enshrine the ERA into the Constitution has been the seven-year ratification deadline that Congress originally attached to the amendment in 1972. This deadline was later extended by an additional three years, making the cutoff 1982. By that point, not enough states had ratified the amendment to meet the necessary threshold of approval from three-fourths of U.S. states. Despite this, some states continued to ratify the ERA in subsequent years, with Virginia becoming the 38th state to approve the amendment in 2020, which, according to supporters, met the legal requirement for ratification.
Supporters of the ERA, who argue for its significance in eliminating sex-based discrimination at both the state and federal levels, believe the deadline is unconstitutional and should be disregarded entirely. For them, Virginia’s ratification signified that the amendment should now be part of the Constitution, despite the expiration of the ratification window. Legal experts like Michelle Kallen, a partner at Jenner & Block, firmly believe that “the moment Virginia ratified the ERA, it met all of the legal requirements to become part of the Constitution.”
Constitutional Debate: Should the Deadline Be Ignored?
While this view is held by some, it is far from universally accepted. In fact, there’s a considerable amount of debate among constitutional scholars over whether the deadline should be considered a valid and enforceable part of the amendment’s process. Harvard Law professor Stephen Sachs, for example, has sharply criticized efforts to bypass the ratification deadline. He argues that disregarding the deadline amounts to “constitutional vandalism,” claiming that Congress has the constitutional authority to impose a deadline for the ratification of constitutional amendments.
Sachs suggests that allowing the ERA to be ratified after the deadline would set a troubling precedent and potentially undermine the integrity of the constitutional amendment process. He emphasizes that the seven-year cutoff imposed by Congress is, in his view, legally valid, which would render the ERA’s ratification incomplete without meeting the required conditions set forth by lawmakers.
This legal impasse has led to differing opinions on the matter, with many legal experts still questioning whether the ERA can be validly ratified after the deadline has passed, despite the support of additional states. According to experts like John F. Kowal from the Brennan Center for Justice, the issue boils down to the executive branch’s position on the matter. While Biden’s statement reflected an optimistic view of the amendment’s status, the formal legal opinion of the Department of Justice remains a significant barrier. The Office of Legal Counsel’s written opinion indicates that the deadline for ratification expired long ago, and unless Congress intervenes, the ERA cannot be certified or published.
The Archivist’s Role in Publishing the ERA
The process for officially adding amendments to the Constitution rests in the hands of the U.S. archivist. Colleen Shogan, Biden’s appointee to the position, has publicly stated that the ERA’s eligibility for publication has expired, and as such, she cannot certify the amendment unless directed to do so by Congress. This puts the ball squarely in Congress’ court, meaning that without legislative action, the ERA remains stuck in legal limbo.
A senior official within the Biden administration confirmed Friday that the president would not be instructing Shogan to publish the ERA, despite his declaration. The official emphasized that the archivist is bound by the law and must act once an amendment is ratified, but the question remains whether the ERA can be considered ratified in the first place, given the expiration of the deadline. According to Kallen, however, the archivist is simply “required to publish an amendment once it’s ratified,” and the ERA’s ratification is now complete, in her view, especially after Virginia’s approval.
Political and Legal Pushback
The question of whether the ERA is legally valid has garnered significant attention from both politicians and legal experts. Senator Kirsten Gillibrand, a staunch supporter of the amendment, declared on Friday that the ERA should now be treated as legally valid. She encouraged those in states with restrictive laws that discriminate based on sex to pursue legal challenges, arguing that the ERA’s ratification would provide them with the constitutional backing needed to overturn discriminatory laws.
“I urge them to do so, and I know they’ll have abundant support for these efforts,” Gillibrand said, signaling a renewed commitment to the fight for gender equality under the law. Her call for legal action underscores the growing belief that the ERA’s passage could empower a new wave of litigation to challenge sex-based discrimination across the United States.
Conclusion: The Road Ahead for the Equal Rights Amendment
As much as President Biden’s declaration aims to invigorate support for the ERA and bolster the case for equal rights, it does not carry the weight of legal action. The question of whether the ERA will ever be officially published hinges on the resolution of the complex legal issues surrounding the ratification deadline and the authority of the archivist. As it stands, the matter remains deeply divisive, with legal scholars, politicians, and activists alike pushing for a resolution that will finally guarantee equal rights for all Americans, regardless of sex.
The battle for the ERA’s official recognition is far from over, and the coming months may see additional legal challenges and legislative efforts to ensure its place in the Constitution. While Biden’s declaration is a strong symbolic step, the real work lies in overcoming the legal hurdles that stand in the way of this landmark amendment becoming an unquestionable part of the nation’s foundational document. The ERA’s journey to full ratification continues, and its supporters remain determined to see it through.
Login