Biden claims Equal Rights Amendment formally added to US Constitution News
Dughi, Donn., Public domain, via Wikimedia Commons
Biden claims Equal Rights Amendment formally added to US Constitution

US President Joe Biden opined Friday without legal effect that the Equal Rights Amendment (ERA), which ensures equal rights on the basis of sex, has been added to the Constitution as the 28th Amendment.

In the statement, Biden said:

It is long past time to recognize the will of the American people. In keeping with my oath and duty to Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: the 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex.

Representative Ayanna Pressley and the Equal Rights Amendment Caucus welcomed Biden’s move to declare the ERA law, stating that the ERA coming into effect is “an important step towards protecting the rights of women and LGBTQIA+ people.”

First drafted in 1923 by Alice Paul, the ERA was adopted by Congress in 1972, providing that “equality of rights under the law shall not be denied or abridged by the US or any state on account of sex.” It further provides that Congress shall have the power to enforce appropriate legislation to protect gender equality.

Thirty-eight US states have ratified the ERA. Following Virginia’s January 2020 ratification, some declared that the amendment passed under Article V of the Constitution, which requires approval by Congress and ratification by three-fourths of the states’ legislatures.

Nonetheless, legal controversy exists as to whether Congress’s authorization of the ERA has expired and whether five states’ decisions to rescind ratification prevent the amendment’s passage. When Virginia ratified the ERA in 2020, the Department of Justice issued a memorandum suggesting that Virginia could not legally ratify the ERA because the extended ratification deadline passed in 1982, when only 35 states ratified the amendment. Following the opinion, the National Archives and Records Administration refused to exercise its statutory power and publish the ERA as a valid amendment under 1 US Code section 106b.

To clear the legal hurdle, former senator Ben Cardin introduced a joint resolution to remove the deadline for the ratification of the ERA in 2019. Similarly, Senator Kirsten E. Gillibrand introduced another joint resolution to affirm that “the ERA has been validly ratified and enforceable as the 28th Amendment to the US Constitution” in 2023. Nonetheless, both were referred to the Senate Committee on the Judiciary and were not passed.

Following President Biden’s opinion, whether the National Archives and Records Administration will recognize the ERA as a part of the US Constitution remains to be seen.

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