By John Q. Hosedrinker 
Forty-six senators, including nearly the entire Democratic caucus, urged President Biden to certify the Equal Rights Amendment (ERA) before leaving office. Passed by Congress in 1972 and ratified by 38 states in 2020, the ERA awaits the Archivist’s certification to become the 28th Amendment. This action would guarantee legal equality between the sexes and potentially protect reproductive rights. Advocates highlight the urgency given increased state-level restrictions on abortion access and the approaching end of Biden’s term.
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Forty-six senators are urging President Biden to certify the Equal Rights Amendment (ERA), even as the prospect of Republican control of Congress looms large. This action underscores the urgency felt by many to enshrine gender equality into the Constitution, a goal that’s been decades in the making.
The ERA’s journey has been a long and arduous one. Initially passed by Congress in 1972, it needed ratification by 38 states – three-fourths of the total – to become part of the Constitution. While 35 states swiftly ratified it, the process stalled, only achieving the required number in 2020, with Virginia as the final state.
However, a significant complication arises from the original legislation itself. Congress, at the time of the ERA’s proposal, included a seven-year deadline for ratification. This deadline expired long ago, casting doubt on the legality of the more recent ratifications and raising questions about the President’s ability to simply “certify” the amendment.
The Supreme Court’s past rulings on amendment deadlines are complex and add another layer of uncertainty. While the Court has acknowledged that Congress can impose a reasonable time limit on ratification, the question of whether that deadline has passed is, according to previous rulings, a matter for Congress to decide, not the courts. This leaves the possibility open for the Supreme Court to rule against certification, especially given the current court’s composition and its demonstrated willingness to overturn established precedents.
Even so, the senators’ call for certification is not without strategic merit. A certification attempt, even if unsuccessful, could serve as a powerful statement regarding the Democrats’ commitment to gender equality. It could also potentially force the Republican party to publicly oppose the ERA, potentially alienating voters who support gender equality.
Despite the significant legal challenges, the argument for certification carries weight. Many believe that the ERA offers stronger protections for gender equality than existing legal frameworks such as the Fourteenth Amendment’s Equal Protection Clause. The historical context of the ERA’s creation reflects the ongoing struggle for gender equality in the United States, and the recent overturning of Roe v Wade reinforces the perception that established rights are not secure.
However, the opposition to certifying the ERA is considerable. Some argue that the long delay in ratification demonstrates a lack of support for the amendment and that reviving it now would be inappropriate given the original time constraints. The original inclusion of a seven-year deadline, they contend, isn’t just a technicality; it represents a crucial element of the amendment’s legislative history. Others emphasize that the President does not have the constitutional authority to unilaterally certify the amendment.
The senators’ call places President Biden in a difficult position. Certifying the ERA would almost certainly lead to a Supreme Court challenge, a challenge that may well be unsuccessful given the current court’s conservative leaning. However, inaction would likely be criticized by advocates for gender equality, further highlighting the politically fraught nature of this issue.
The situation surrounding the ERA’s certification is therefore a complex interplay of legal precedents, political strategy, and the ongoing fight for equal rights. The call by the 46 senators is a bold move, intended to either solidify the ERA’s place in the Constitution or, perhaps even more importantly, to make a public statement about the Democrats’ commitment to gender equality in the face of an increasingly conservative political landscape. Regardless of the outcome, this attempt to certify the ERA is likely to have significant political consequences. The coming legal battles and political maneuvering are sure to keep this topic in the spotlight for some time.