On Friday, President Joe Biden made a historic declaration, stating that he considers the Equal Rights Amendment (ERA) to be “the law of the land.” This bold statement, made during a speech to the U.S. Conference of Mayors, comes after decades of struggle for the amendment’s ratification. However, despite the president’s declaration, the legal road to adding the ERA to the U.S. Constitution remains unclear.
The ERA, originally passed by Congress in the 1970s, seeks to guarantee equal rights under the law, irrespective of gender. The amendment gained renewed momentum in 2020 when Virginia became the 38th state to ratify it, meeting the constitutional threshold for amendments. However, the ERA faced a significant challenge: it missed a deadline set by Congress in 1982, and legal questions have lingered about whether the deadline was enforceable.
In his statement, President Biden asserted that the ERA was now the 28th amendment to the Constitution, following Virginia’s ratification. However, this declaration does not have any direct legal force. For the ERA to be officially added to the Constitution, it needs to be certified and published by the National Archivist, Colleen Shogan. But Shogan and the National Archives have held a long-standing position that the ERA cannot be certified due to the expired ratification deadline, citing legal opinions from the Justice Department’s Office of Legal Counsel.
Biden’s decision to weigh in on the matter now raises significant legal questions. While he did not order the archivist to certify the ERA, his statement challenges the legal opinion that the deadline renders the amendment invalid. This development could create a shift in how the courts or Congress ultimately address the issue, potentially setting the stage for future legal battles.
For supporters of the ERA, Biden’s announcement is a moment of triumph, but it comes with mixed feelings about the timing. Many advocates expressed frustration that the president did not act earlier in his term, which may have allowed for a stronger push to overcome legal hurdles. Despite this, figures like Zakiya Thomas, president of the ERA Coalition, remain optimistic, believing the ERA’s passage is more important than the timing of its ratification.
In response, Biden’s declaration has already sparked debate among legal scholars. Martha Davis, a professor at Northeastern University School of Law, noted that while the president’s statement changes the nature of the conversation, it does not resolve the ongoing legal controversy. The role of the courts and Congress will likely become even more critical in determining the future of the Equal Rights Amendment.
The National Archives remains firm in its stance, pointing to the legal and procedural barriers that prevent the ERA’s certification. As the Biden administration continues to navigate this issue, the debate over the ERA’s future is far from over, with many eyes on the courts to decide whether the amendment will ultimately become a permanent part of the Constitution.
