By John Q. Hosedrinker 
Virginia’s 2020 ratification marked the 38th state to approve the Equal Rights Amendment (ERA), fulfilling the constitutional requirement for adoption. The American Bar Association and leading legal scholars concur that all necessary steps for ERA’s inclusion as the 28th Amendment have been completed. Therefore, the Amendment is deemed ratified and legally part of the U.S. Constitution, guaranteeing equal rights regardless of sex. This action upholds the will of the American people and fulfills a constitutional duty to ensure equal protection under the law.
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President Joe Biden’s recent statement on the Equal Rights Amendment (ERA) has generated considerable discussion, highlighting a complex legal and political landscape surrounding this long-standing effort to enshrine gender equality in the U.S. Constitution. The statement itself, while expressing strong support for the ERA’s ratification, ultimately lacks the legal authority to unilaterally resolve the outstanding issues.
The core of Biden’s statement is a declaration that the ERA has been ratified and should be officially recognized as a constitutional amendment. This assertion, however, directly confronts the existing legal complexities surrounding the ERA’s ratification process. The original congressional resolution establishing the ERA included a ratification deadline, a deadline which has long since passed. This temporal constraint significantly complicates the matter, raising questions about the validity of later state ratifications. Adding to this complexity, several states that previously ratified the ERA have since attempted to rescind their approval, further muddying the legal waters.
The President’s statement seemingly bypasses these established challenges, asserting the ERA’s ratification based on the fact that, at one point, 38 states had ratified the amendment, achieving the necessary three-quarters threshold for constitutional amendments. This approach effectively ignores the legal arguments against the validity of those ratifications due to the lapsed deadline and subsequent rescissions.
The statement implicitly directs the Archivist of the United States, the individual legally responsible for certifying and publishing new amendments, to act upon his assertion and publish the ERA as a part of the Constitution. However, this action does not fall under the President’s direct purview; it is the Archivist’s independent decision whether to certify, based on the legal interpretation of the ratification process.
The significance of the President’s statement lies primarily in its symbolic weight and political impact rather than its immediate legal ramifications. It serves as a strong endorsement of the ERA and demonstrates a commitment to advancing women’s rights. However, the President’s assertion that the ERA has been ratified faces serious legal and procedural obstacles. This is not a matter of simply declaring something to be true but rather of navigating the intricate legal process for constitutional amendments.
The legal arguments against the ERA’s immediate adoption center on the expiration of the original ratification deadline and the subsequent rescissions of ratification by several states. These actions are not without precedent, further strengthening the opposition to a simple declaration of ratification. Furthermore, the legal interpretation of Article V of the Constitution, which outlines the amendment process, remains ambiguous regarding the effect of lapsed deadlines and attempted rescissions of ratification. Past legal opinions have offered little clarity on these specific points, underscoring the legal ambiguities involved.
The statement also invites broader consideration of the broader political context. The ERA’s protracted journey highlights the challenges involved in achieving meaningful social and political change. While the President’s statement demonstrates a strong intent to endorse the ERA’s ratification, its actual effect hinges upon the legal interpretations and decisions of the Archivist and ultimately, potentially the Supreme Court. A significant portion of the controversy lies in the contrasting interpretations of the law and the established precedent.
The lack of immediate, concrete action following Biden’s statement further reinforces its primarily symbolic nature. The President’s statement, though politically significant, does not resolve the ongoing legal battle. The ultimate determination of the ERA’s status as a constitutional amendment rests, legally, with the Archivist and potentially the courts, not with the President. His statement, therefore, serves more as an expression of support and a call to action than a legally binding directive. The timeline for a resolution remains uncertain, highlighting the intricate legal process involved and the intense political ramifications surrounding the ERA’s fate. The debate continues, and the ERA’s future remains uncertain.