Remind me why the Biden administration is in court fighting publication of the ERA?
Carli Pierson, USA TODAY
The publication of the Equal Rights Amendment is a simple ministerial action and should have happened when Virginia became the 38th state to ratify it in 2020.
A woman holds up a sign as members of Congress and representatives of women's groups rally in 2012 to mark the 40th anniversary of congressional passage of the Equal Rights Amendment. The amendment included what the Congressional Research Service calls a "customary, but not constitutionally mandatory," seven-year deadline for ratification by three-fourths of the states.
- Women's rights are not enshrined in the Constitution. The ERA was supposed to change that.
- By 2020, the ERA had the 38 ratifications necessary for it to become the 28th Amendment.
- Publication of the ERA is a simple action and should have happened when Virginia became the latest state to ratify it.
The Biden administration is in court opposing the Equal Rights Amendment's publication by the National Archives and RecordsAdministration. That's legally and morally wrong.
Women's rights are not enshrined in the Constitution other than in the 19th Amendment, which gave women the right to vote. The word "woman" does not even appear once in the document.
The ERA was supposed to change that.
First passed by Congress in 1923, the text of the ERA has shifted over the years, but the 1972 version that was sent to the states says the following:
"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."
There's no deadline on women's equality: Add the Equal Rights Amendment to the Constitution
It was no surprise that the Trump administration pushed back against the amendment's publication, but I was shocked to learn that Biden administration lawyers were in court opposing it, too. If President Joe Biden means to support the ERA, like he has said, then he needs to change direction quickly and put the full force of his government's authority behind this critical constitutional amendment, rather than fighting it in court.
What is the ERA?
Drafted by suffragist Alice Paul in the 1920s, the bill didn't move much until the 1970s when it was picked up again during the women’s movement. By 1977, 35 states had approved it. Then, right-wing religious activists worried that this amendment would lead to, God-forbid, "gender-neutral bathrooms, same-sex marriage and women in military combat," according to the Brennan Center for Justice.
Opponents got a deadline for ratification of seven years inserted into the 1972 ERA (Article V of the Constitution makes zero mention of deadlines for amendments). The deadline was extended to 1982, and that date passed without the 38 states needed to publish and issue a new Constitution.
By 2020, three more states had signed on, and the ERA had the 38 ratifications necessary for it to become the 28th Amendment.
Fast-forward to this year: We already have gender-neutral bathrooms, same-sex marriage (at least for now) and women in combat. Now, lawmakers and right-wing organizations are pushing back against the ERA because they worry that, if published, it would again consecrate women's rights to abortion care after they got Roe v. Wade overturned.
Why it matters that ERA should have already published
The publication of the ERA is a simple ministerial action and should have happened when Virginia became the latest state to ratify it in January 2020. But because the Trump administration stepped in to block its enactment into force on the grounds of an arbitrary deadline, the U.S. archivist didn't certify and publish theERA as required by statute.
Now, Biden administration lawyers are actually arguing in court that this nonsensical deadline has passed and that advocates forthe ERA should have to start from square one. Prominent constitutional law scholars disagree.
And publishing the ERA matters a lot. Nicole Bates, executive director of the nonprofit organization Shattering Glass, explained to me why: "Publishing first gives a presumption of validity. It sends a huge message to people that women and LGBTQ+ persons are equal. But it would also serve to shift the burden back to the opponents of the Equal Rights Amendment to initiate a lawsuit challenging it."
Finally, the argument that the ERA is actually a hindrance to women'sand LGBTQ progress has no merit. Cementing a right explicitly in the Constitution is more important than ever. Women's rights and LGBTQ rights are under attack. In order to fulfill an ideological agenda, our highest court has decided to roll back women's rights by reading the Constitution without regard to the Equal Protection Clause or the bedrock principle of stare decisis, requiring courts to abide by precedents laid down as applicable to a similar set of facts.
Biden cannot overturn the Supreme Court's abominable decision reversing Roe, but he can push for publication of an amendment that has already met all the constitutional requirements to become law. It is also something tangible that he could point to as work he has done to help women regain constitutional rights they've enjoyed for almost 50 years and then lost under his watch.
Enough playing politics with our rights. Women need all the constitutional protections they can get, and this one has been a long time coming. The Biden administration must support the Equal Rights Amendment.