Biden Declares the Equal Rights Amendment Ratified: What Does It Mean and What Comes Next?
With just three days remaining in his presidency, Joe Biden’s assertion that the Equal Rights Amendment is now “the law of the land” faced significant pushback.
On January 17, President Joe Biden declared that the Equal Rights Amendment (ERA), initially proposed over a century ago, is now regarded as the “law of the land.”
The legal ramifications of Biden’s assertion remain contested.
The president noted that the final barrier preventing the formal inclusion of the ERA in the U.S. Constitution was removed in January 2020 when the Virginia General Assembly ratified the amendment.
Biden asserted that since three-fourths of the states have ratified the ERA, “renowned legal constitutional scholars [state] that the Equal Rights Amendment is now part of our Constitution,” without referencing anyone specific.
“The 28th Amendment stands as the law of the land, ensuring all Americans equal rights and protections under the law, irrespective of sex,” he declared.
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However, the National Archives and Records Administration (NARA) quickly countered the president, asserting that Virginia’s ratification of the amendment holds no legal weight due to the congressionally imposed deadline for ERA adoption being exceeded decades earlier.
What is the Equal Rights Amendment?
The ERA was first introduced in Congress back in 1923, three years post the formal adoption of the 19th Amendment, which granted women the right to vote. Per NARA, proponents contended that the ERA would provide full equality for women by abolishing “the legal distinctions between men and women concerning divorce, property, employment, and other related issues.”
Although the ERA failed to be integrated into the Constitution, women have made significant strides in American society, according to the agency.
“Women have gradually attained greater equality through legal victories that have continued the momentum for rights expansion, including the Voting Rights Act of 1965, which firmly established the right to vote for all women.”
The current iteration of the ERA, totaling 52 words, is claimed by supporters to ensure equal rights for women within the Constitution.
The text of the amendment states:
“Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
“The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
What Happened After 1923?
The ERA lingered in Congress for nearly five decades until the U.S. House of Representatives passed it by a vote of 354–24 in 1971, as detailed in a chronology published by the National Organization for Women (NOW), a proponent of the amendment.
The U.S. Senate subsequently approved the ERA with an 84–8 vote the following year and imposed a seven-year ratification deadline.
In late 1978, Congress extended the ratification deadline to June 30, 1982.
By the 1982 deadline, 35 states had ratified the ERA, falling short of the required 38 states.
Despite the expired deadline, supporters continued to advocate, claiming that the deadline wasn’t legally binding as the Constitution does not stipulate that amendment ratification deadlines may be enforced.
In 2017, Nevada ratified the amendment, followed by Illinois in 2018 and Virginia, the 38th state, in 2020.
Who Called for Biden to Declare It Ratified?
Supporters of the ERA see the amendment as a critical affirmation of sexual equality in the U.S.
“We urge you to take this final, transformative step toward achieving the full promise of equality for every individual in the United States.”
Opposition to the amendment has been longstanding among conservatives, who argue that it could have disruptive social effects and lead to an uptick in lawsuits.
“No serious person believes the absurdity that a proposed amendment, which expired in the 1970s and was rejected by the American people, has somehow found its way into our Constitution.
“Justice Ruth Bader Ginsburg and other ERA advocates recognized this reality for decades. Every judge who has evaluated this issue—including those appointed by Presidents Obama and Biden—has dismissed this ridiculous notion.”
What Are the Next Steps?
NARA Archivist Colleen Shogan and her deputy, William Bosanko, responsible for publishing the official notice when an amendment has been adopted, maintained that the ERA ceased to exist once only 35 states ratified it by June 30, 1982.
“Currently, the Equal Rights Amendment (ERA) cannot be certified as part of the Constitution due to established legal, judicial, and procedural rulings.”
“This is a well-established position for the Archivist and the National Archives. The underlying legal and procedural issues have not altered,” the spokesperson added.
In 2020, the Department of Justice’s Office of Legal Counsel, under former President Donald Trump, and again in 2022 during Biden’s administration, stated that the ERA cannot be adopted unless Congress or the courts retroactively lift or amend the ratification deadline.
The American Bar Association (ABA) holds that Virginia’s ratification in 2020 met the threshold of three-fourths required for adoption.
“I concur with the ABA and leading constitutional legal scholars that the Equal Rights Amendment is indeed part of our Constitution,” Biden stated on January 17.
Senator Kirsten Gillibrand (D-N.Y.) called on supporters to pursue legal action to enforce the formal adoption of the amendment, now that the ERA is reportedly “the law of the land.”
“I am confident they will find ample support as they seek justice, and I promise to stand by them in this fight.”
Zachary Stieber and Joseph Lord contributed to this report.
