
The Big Picture
President Joe Biden recently declared the Equal Rights Amendment (ERA) as “the law of the land.” This surprising statement, while significant in its implications, has no immediate legal effect. The ERA, which guarantees equal rights regardless of sex, remains unratified under current procedural and legal interpretations.
Why It Matters?
The ERA has been a contentious topic for decades. While Congress initially passed the amendment in the 1970s, the required number of states did not ratify it before a 1982 deadline. In 2020, Virginia became the 38th state to approve the ERA, crossing the threshold for ratification, but the missed deadline and procedural hurdles have left its status uncertain.
What Biden Said?
On Friday, Biden affirmed his belief that the ERA became the 28th Amendment when Virginia ratified it in 2020. In a written statement, he emphasized the importance of recognizing equal rights under the law, saying, “It is long past time to recognize the will of the American people.” Despite this strong stance, the president will not direct the national archivist to certify or publish the amendment.
Key Context
The National Archives has maintained that the ERA cannot be certified due to procedural and legal issues, including the missed deadline and prior opinions from the Justice Department. In 2020, the Office of Legal Counsel (OLC) stated that the ERA had expired.
This opinion was reaffirmed in 2022, effectively preventing any further action by the archivist, Colleen Shogan, without Congressional or judicial intervention.
The Legal and Political Landscape
The ERA has seen renewed support from Democratic lawmakers, including Senator Kirsten Gillibrand, who views it as a tool to protect abortion rights and gender equality. However, experts say Biden’s declaration introduces new legal questions but does not resolve the broader controversy.
Martha Davis, a law professor, pointed out that Biden’s timing raises questions about whether his statement conflicts with the OLC’s opinion, which underpins the archivist’s refusal to act. “The president has just disowned it,” Davis said, adding that earlier action might have provided time for a stronger legal push.
What’s Next?
The path forward for the ERA depends on Congress and the courts. Legal challenges and further legislative action would be needed to lift the deadline or clarify the amendment’s status. Without these steps, Biden’s declaration remains symbolic, adding to the debate but not altering the amendment’s legal standing.
Bottom Line
While Biden’s support for the ERA signals a renewed commitment to gender equality, the amendment’s future is still mired in legal and procedural uncertainties. The debate is far from over, and the fight for ratification may ultimately be decided in Congress or the courts.
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