President Biden affirms the Equal Rights Amendment! Of course, controversy ensues.
What it all means and what we do now
You may have seen the fantastic news—President Biden has declared the Equal Rights Amendment (ERA) is “the law of the land.” He stated: “I agree with the ABA [American Bar Association] and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution.”
This is FANTASTIC! WOOHOO! We made this statement happen with our calls, texts, postcards, online chatter. The young feminists who stood outside the White House gates in the freezing cold made this happen. Thank you all for not muting me over the years and for making your own texts, calls, postcards, protests and online chatter. High fives all around!
But as usual, confusion surrounds the ERA. Is it really the law of the land? Does the archivist need to publish it? Did Biden’s statement mean anything? Are we equal yet?
People are recognizing that Biden’s announcement is an extraordinary step that will add heft to the ERA, but some say it does not make it a super final done deal. President Biden stopped short of directing the archivist, Colleen Shogan, from publishing it, which is considered the last final step—but merely a formal, ministerial step. The real work requirements have been met: ratification by 3/4s of the states. It also has broad public support.
Some argue that if the archivist does publish, it will be immediately be challenged in court. Part of me thinks “publish and be damned!” Please, publicly argue in courts in the year 2025 that women should not have equal rights. But this Supreme Court would almost certainly rule against the ERA and we would be back to zero because the sad fact is, the ERA has less of a chance of passing congress today than it did 50 years ago. Wow.
But leading constitutional scholar Laurence Tribe says the ERA is a done deal, has been since Virginia ratified in 2020, and the archivist does not need to publish for it to be the law of the land. He writes:
“The only reason Congress gave the Archivist such a duty nearly a century ago was to ensure that the Nation got word that an amendment was in force, enabling officials at all levels of government to conform their actions to it. In our modern age of broadcast, cable and internet communication, the President’s announcement itself performed that function.”
Senator Gillibrand, who has been a dedicated champion of the ERA, especially in these last weeks, posted a statement that basically encourages Americans to “act as if.” She posted: “Women across America can — and should — use the ERA to file lawsuits against unconstitutional laws denying women equality, from pay discrimination to access to health care.”
As you know from my previous post, the path of the ERA has been a twisty turner saga. This is another exciting installment. I am proud of President Biden for making his statement and grateful that he did it. I am deeply grateful for everyone who took up this cause—from elected officials like Kirsten Gillibrand, Cori Bush, Carolyn Maloney and others to all the activists and every folks who did what they could from home. Thank you.
It’s up to us know to make this real, to make it count, to use it to make us all more equal until equality is unquestioned.
My recommended further reading: