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• President Biden asserts the Equal Rights Amendment (ERA) is law, despite the Archivist’s refusal to certify it.
• The ERA requires formal publication or certification by the National Archivist to take effect.
• The amendment’s validity is disputed due to a long-expired ratification deadline set by Congress.

Quick Brief

2-Minute Digest

Essential Context

The Equal Rights Amendment, introduced in Congress in 1923 and passed in 1972, aims to ensure equal rights under the law regardless of sex. Despite reaching the required 38 state ratifications, the amendment’s path to becoming the 28th Amendment is complex.

Core Players

• President Joe Biden – Advocate for ERA certification
• National Archivist Dr. Colleen Shogan – Refused to certify the ERA
• American Bar Association (ABA) – Supports ERA ratification without deadlines
• Sen. Kirsten Gillibrand – Leading advocate for ERA in Congress

Key Numbers

• 38 – States required to ratify the amendment (reached on January 27, 2020, with Virginia’s ratification)
• 1972 – Year Congress passed the ERA
• 1982 – Extended deadline for ratification that expired without full passage
• 2017, 2018, 2020 – Years Nevada, Illinois, and Virginia ratified the ERA, respectively

Full Depth

Complete Coverage

The Catalyst

President Biden’s recent statement that the ERA should be considered ratified marks a significant step in the long-standing debate. He has supported the ERA for over 50 years and believes it is essential for protecting women’s full equality.

“In keeping with my oath and duty to the 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,” Biden stated.

Inside Forces

The National Archivist’s office has consistently declined to certify the ERA, citing the expired ratification deadline set by Congress. This stance is supported by opinions from the Justice Department’s Office of Legal Counsel in 2020 and 2022, which affirm the validity of the deadline.

However, advocates argue that the deadline is not legally binding, as it was included in the resolving clause of the joint resolution rather than the amendment’s text itself.

Power Dynamics

The ABA and several legal scholars support the argument that the ERA can still be ratified despite the deadline. They contend that Congress does not have the power to establish a permanent ratification deadline, aligning with the views of Senator Kirsten Gillibrand and other ERA supporters.

The Biden administration suggests that Congress could act to eliminate the ratification deadline, paving the way for the ERA’s certification.

Outside Impact

The ERA’s potential inclusion as the 28th Amendment has broad implications for women’s rights, reproductive health, and anti-discrimination laws. It could provide a constitutional safeguard against sex-based discrimination, which is seen as crucial given current legal and political challenges.

Organizations like the National Council of Negro Women, the League of Women Voters, and the American Medical Women’s Association strongly advocate for the ERA’s publication, emphasizing its necessity in protecting fundamental rights.

Future Forces

The next steps are uncertain. The ERA could face legal challenges, including potential lawsuits, or it might be certified if Congress intervenes to remove the ratification deadline. The ongoing debate highlights the complex and contentious nature of constitutional amendments.

Key areas to watch include:

• Congressional action to eliminate the ratification deadline
• Legal challenges and court rulings on the ERA’s validity
• The National Archivist’s response to renewed calls for certification

Data Points

• 1923 – Year the ERA was first introduced in Congress
• 1972 – Year Congress passed the ERA and sent it to the states for ratification
• 1979 – Original ratification deadline set by Congress
• 1982 – Extended ratification deadline that expired
• 2017-2020 – Years Nevada, Illinois, and Virginia ratified the ERA, respectively