Biden Says ERA Is Ratified, But Supreme Court Gets Final Say

Pro-ERA protesters at the National Archives before Biden declared it ratified. Photo: Celal Gunes/Anadolu/Getty Images

In one of those why the hell not? gestures open to a president down to his last weekend in office, Joe Biden declared the Equal Rights Amendment ratified and thus the 28th Amendment to the U.S. Constitution.
A host of feminists and Democratic politicians have been urging this step from the moment Biden took office, based on three recent state ratifications (Nevada in 2017, Illinois in 2018, and Virginia in 2020) executed in defiance of a 1982 congressional deadline that ERA proponents failed to meet (35 of the 38 required ratifications had happened by then). Indeed, the House formally repealed the ratification deadline in 2021 and dismissed as legally ineffectual actions by five conservative state legislatures to rescind prior ratifications. But the Senate never acted, leaving the whole question in legal limbo.

From a technical point of view, the national archivist has the power to recognize ratified constitutional amendments by officially publishing them, and Biden urged this obscure official to do that with the ERA. But in December, anticipating this action, the archivist denied she had the power to do so. She cited prior legal precedents suggesting the 1982 deadline was indeed valid, not to mention ongoing litigation over the Virginia ratification. That’s not likely to change, particularly since Biden didn’t formally order the archivist to bend the knee, as the New York Times observes:

Aides said that Mr. Biden was not ordering the archivist, Colleen Shogan, to reverse her position and publish the amendment, as advocates have urged him to do. Asked for comment on Friday, the archivist’s office referred back to previous statements refusing to publish the amendment, indicating that she would not change her stance.

Even so, advocates maintained that Mr. Biden’s imprimatur gives the amendment additional credibility for any future court battle over whether it actually has the force of law. In effect, Mr. Biden and his allies are daring opponents to go to court to argue that women do not have equal rights.

While there have already been rallies at the National Archives to dramatize the issue, there’s every indication that the whole controversy will wind up at the Supreme Court, whose conservative majority is not terribly likely to redeem the decadeslong push for an ERA. But Biden’s action will revive the topic and all the underlying issues of long-postponed equality until such time as the Supreme Court acts.

It’s also something of a vindication for the junior U.S. senator from New York, notes CNN:

Sen. Kirsten Gillibrand, Democrat of New York, has been making a major push for certification, saying in a memo to interested parties that it would give Biden a way to “codify women’s freedom and equality without needing anything from a bitterly divided and broken Congress” in the aftermath of the 2022 Supreme Court decision overturning Roe v. Wade …

Gillibrand pressed her case to the president’s top aides and outside allies, including an appeal to Biden and the first lady during a holiday party photo line, according to a source familiar with the interaction. She was in contact with the White House counsel’s office, the Gender Policy Council and other officials involved in the matter.

If the ERA ever does become recognized as “the law of the land,” Biden can add his small role in its revival to his legacy.