President Joe Biden declared on Friday that the Equal Rights Amendment (ERA) is “the law of the land” and should be considered the 28th Amendment to the U.S. Constitution. While this statement has no formal legal effect, it has reignited momentum among ERA proponents and raised fresh legal questions about the amendment’s status.
A Symbolic Declaration
Biden’s announcement came during a speech to the U.S. Conference of Mayors and follows a long campaign by Democratic lawmakers and activists advocating for gender equality. The ERA, first proposed in the 1970s, guarantees equal rights under the law regardless of sex. It was ratified by enough states to pass in 2020 but missed the original ratification deadline set by Congress in 1982.
“The Equal Rights Amendment is the law of the land—now!” Biden stated, adding that he consulted constitutional scholars before making his declaration.
Legal Hurdles and Archivist’s Role
For the ERA to take effect, it must be certified and published by the national archivist, currently Dr. Colleen Shogan. However, the National Archives maintains that legal and procedural barriers prevent the ERA’s certification due to its missed deadline.
Shogan has reiterated that any action on the ERA must come from Congress or the courts. The Office of Legal Counsel (OLC) in 2020 and again in 2022 affirmed that the deadline for ratification had expired.
Renewed Push by ERA Advocates
While Biden’s statement does not legally enforce the ERA’s inclusion in the Constitution, it has galvanized supporters. Legal experts, like Northeastern University law professor Martha Davis, suggest that Biden’s declaration could shift the argument against the OLC’s opinion, potentially opening new legal avenues.
ERA Coalition CEO Zakiya Thomas welcomed Biden’s support but expressed frustration over its timing. “I wish he had acted when he first got into office,” Thomas said, though she acknowledged the significance of the move.
Public and Political Reaction
A rally of approximately 40 ERA supporters outside the National Archives celebrated Biden’s statement, calling for immediate action by the archivist. Rosie Couture, co-founder of the Young Feminist Party, emphasized the need for urgency: “Colleen Shogan, girl, you better sign this super fast, get us in there.”
Meanwhile, opponents argue that Biden’s statement and potential actions to certify the ERA could face challenges from the incoming administration, which might seek to reverse any progress.
Mandel Ngan/AFP
Historical Context and Next Steps
The ERA’s journey has been fraught with political and legal challenges since its passage by Congress in 1972. Despite renewed advocacy, the path forward remains uncertain, with many experts agreeing that court rulings or legislative measures will be required to resolve its status definitively.
For now, Biden’s declaration has breathed new life into the fight for constitutional gender equality, a battle that ERA proponents are determined to win.
