Democrats urge Biden to recognize Equal Rights Amendment. Was it ever ratified though?

Brendan Rascius, The Bradenton Herald on Dec 17, 2024

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With one month before he leaves office, President Joe Biden is facing pressure from his own party to acknowledge the Equal Rights Amendment as ratified. But is it?

On Dec. 15, over 120 House Democrats sent a letter to Biden beseeching him “to take immediate action to recognize the ratification of the Equal Rights Amendment (ERA) as the 28th amendment to the U.S. Constitution.”

The lawmakers — which include Reps. Alexandria Ocasio-Cortez and Jamie Raskin — asserted that the amendment “has already met the constitutional requirements for ratification.”

Therefore, they said, Biden should instruct the archivist of the U.S. — who is responsible for adding new amendments to the Constitution— “to certify and publish it.”

However, in a Dec. 17 statement, archivist Colleen Shogan disagreed entirely, saying the proposed amendment cannot be ratified, which is a position supported by multiple legal experts.

Here is what to know about the Equal Rights Amendment and the Democrats’ last-ditch bid to enshrine it into law.

What is the Equal Rights Amendment?

The ERA is a proposed amendment to the U.S. Constitution that would guarantee that “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

It was first introduced in Congress more than a century ago, in 1923, where it languished for decades.

Then, in 1972, Congress approved the amendment with the stipulation that it would have a seven-year window for ratification, according to a Congressional Research Service (CRS) report. This window was subsequently extended to 10 years.

However, by 1982, only 35 states had ratified the amendment — three short of the 38 states, or three-quarters of states, required in the Constitution.

Despite the missed deadline, more states continued to ratify the amendment. In 2020, Virginia became the 38th state to do so.

Since then, several states have filed lawsuits requesting that the archivist be ordered to certify and publish the amendment, according to CRS.

Why it can’t be ratified

“At this time, the Equal Rights Amendment (ERA) cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions,” Shogan said in her statement.

She specifically cited the ratification deadline, which the Office of Legal Counsel of the Department of Justice upheld as valid in 2020 and 2022.

Constitutional law experts contacted by McClatchy News were in agreement.

“The ERA failed to obtain the requisite number of state ratifications within the time period specified in Congress’s enactment proposing the amendment,” Michael Paulsen, a professor of Law at the University of St. Thomas, told McClatchy News.

As a result, the proposal is no longer “legally operative.”

Saikrishna Prakash, a professor at the University of Virginia School of Law, echoed this sentiment.

“I think (the Democratic lawmakers) are wrong because the proposal for the ERA set a time limit,” Prakash told McClatchy News. “Congress tried to extend that time limit, but that time limit also expired.”

What ratification would mean

If the archivist were to publish the amendment, it would be “a lawless act” and a “deceptive political stunt,” Paulsen said.

And it would then almost certainly be subject to a legal challenge, experts said.

“At some future point a government (would) do something that someone claims to violate the ERA,” Akhil Reed Amar, a professor at the Yale Law School, told McClatchy News. “In response, government lawyers would likely argue that the ERA was never validly adopted.”

It’s likely that the Supreme Court would eventually take up the case — and presumably rule that the amendment was never enshrined into law.

“It would be laughed out of court,” Amar said, “and the great cause of sex equality would actually suffer a needless setback.”

However, if it somehow were to survive judicial review, it probably would not have a major impact on the legal system, he said.

“In truth, we already have an ERA. It’s called the 14th Amendment,” which established “bedrock judicial precedents affirming women’s equality,” he said.

Still, Paulsen said, “the proposed amendment strikes me as a useful distillation, or written specification, of what are now well-accepted constitutional principles.”

Another option

If lawmakers are serious about passing the ERA, there is one clear solution: starting over, experts said.

“Congress is of course free to re-propose the Equal Rights Amendment, with or without a time limitation,” Paulsen said. “States could then choose whether or not to ratify this new proposal.”

A new proposal would avoid all the legal questions that plague the old one, and it would likely be signed on to by many states in short order, Amar said.

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