Biden Pressured to Publish Equal Rights Amendment on His Way Out

Backers of the Equal Rights Amendment including dozens of Democrats in Congress are urging President Joe Biden to order the measure be published as the 28th Amendment before Donald Trump returns to the White House next month.

If Biden grants their wish, the amendment’s ratification would almost certainly face new legal challenges, potentially ending at a conservative US Supreme Court. Biden has previously voiced support for the ERA but urged Congress to take action on affirming its ratification.

The ERA’s opponents argue the measure’s purported ratification by three-fourths of state legislatures came too late, thanks to the 1979 deadline Congress set for states to ratify it. But supporters say the deadline isn’t legally valid and that it’s a battle worth fighting to explicitly add sex-based equality to the US Constitution.

“This is the most impactful thing that the Biden administration can do to leave a legacy of protecting women and queer people,” said Kate Kelly, senior director for the women’s initiative at the Center for American Progress and a former legislative director and counsel to Democratic members of Congress.

The White House didn’t respond to requests for comment.

Among the voices calling for the change are 46 senators, including Sens. Kirsten Gillibrand (D) and Chuck Schumer (D), who sent Biden a letter last month making their case for why the amendment is ready to go live. Delegates to the American Bar Association took a similar position in a resolution approved in August, opining that the amendment has satisfied the requirements in Article V of the Constitution for ratifying amendments.

The amendment’s supporters contend the ERA is already properly ratified and just needs formal recognition—namely for the US archivist to publish it the Federal Register and in future copies of the Constitution.

“The ERA would fill gaps in existing policy and bolster the laws we already have on the books, protecting us from discrimination in education, in health care, and in housing,” Rep. Cori Bush (D-Mo.) said at a Dec. 10 press conference outside the Capitol. “It would address the gender pay gap, sexual harassment, domestic violence, and even food insecurity.”

Republicans generally oppose it, arguing it would allow unrestricted abortion access and potentially require taxpayer funding for the procedure. A string of court decisions and a 2020 Justice Department legal memo have weighed against efforts to treat it as a fully ratified amendment.

“It would set up a constitutional crisis,” if Biden ordered the amendment published, said Anne Schlafly, chair of the Eagle Forum and daughter of long-time ERA opponent Phyllis Schlafly. “There is no path forward to shoehorning it into the Constitution.”

The amendment would be interpreted as banning sex-segregated programs and facilities such as women’s sports, restrooms, and domestic abuse shelters, she said.

“The most pressing issue right now is nobody knows how to define the word sex,” Schlafly said. “We don’t know how the ERA would be interpreted by judges.”

Federal courts in Massachusetts, Virginia, and Washington, D.C., have rejected ERA backers’ efforts to get a court order forcing publication of the amendment since 2020, largely on standing or procedural grounds. At least one federal judge, Obama-appointee Rudolph Contreras in Virginia, wrote in his decision that regardless of the standing issues he couldn’t order the amendment published because the ratification deadline passed four decades earlier.

Coinciding with the push for a federal ERA, New York became the latest to pass a state-level Equal Rights Amendment last month when voters approved a ballot question, Proposal 1. The New York version is more expansive than the federal measure, covering a list of protected categories including sex, age, disability, sexual orientation, gender identity, pregnancy, and reproductive health decisions.

Procedural Hurdles

After decades of resistance and some revisions, Congress approved the ERA and sent it to states for ratification in 1972, but with a seven-year deadline.

When the 1979 deadline expired, 35 states had voted to ratify the ERA, short of the 38 needed. A disputed deadline extension to 1982 didn’t yield any new state ratifications.

A renewed effort to get the ERA across the finish line emerged within the past decade, as supporters contended the Constitution doesn’t give Congress authority to set deadlines for amendments. Lawmakers in Nevada voted to ratify it in 2017, followed by Illinois and Virginia in 2018 and 2020, respectively.

The Justice Department’s Office of Legal Counsel wrote in a January 2020 memo—during Trump’s first term and days before the Virginia vote—that the deadline set by Congress was valid and binding, so the ERA can’t be ratified unless it starts over and gets new approval by two-thirds votes in both chambers of Congress. A subsequent memo under Biden’s DOJ tweaked that opinion without outright reversing it, suggesting Congress might have the power to retroactively undo the deadline.

David Ferriero, the US archivist at the time of the 2020 memo, said he would defer to the DOJ’s judgment. After he retired in 2022, Biden’s pick to replace him, Colleen Shogan, told senators at her confirmation hearings that she would leave it up to the courts and Congress to decide whether the ERA should be recognized as the 28th Amendment.

Efforts in Congress to remove the deadline or affirm the amendment as ratified also have fallen short. The House passed one such measure in 2021, but similar proposals haven’t won the 60 votes needed in the Senate to block a filibuster by their opponents.

Despite the legal hurdles, publishing the amendment would put ERA supporters in a strong position of pointing to the published language in the Constitution and forcing its opponents to fight to have it removed, Kelly said.

“There will be legal challenges,” she said. “That’s what lawyers do. We put forth our best arguments and we make the case.”