Biden Declares ERA Ratified, Proclaims it Law of the Land: A Major Victory!

Over fifty years since its passage by the U.S. Congress, President Joe Biden declared on Friday that the Equal Rights Amendment (ERA) has been ratified, affirming its provisions to combat sex-based discrimination as integral to the U.S. Constitution.

This proclamation has been eagerly awaited by advocates for rights, including Democratic legislators who have recently urged Biden to validate the ERA’s ratification to safeguard reproductive freedoms, which have been significantly undermined by the Republican Party.

“The time is overdue to acknowledge the desires of the American populace,” Biden stated. “Faithful to my oath and duty to both the Constitution and the nation, I confirm what I believe and what three-fourths of the states have ratified: The 28th Amendment is now constitutional law, ensuring equal rights and protections under the law to every American, regardless of gender.”

This significant affirmation came five years after Virginia marked itself as the 38th state to ratify the ERA, fulfilling the requirement for three-fourths of U.S. states to approve the amendment.

The Brennan Center for Justice notes that although ratification deadlines were set by Congress following the amendment’s passage, and five states have since rescinded their ratification by the time Virginia acted, a senior White House official cited the American Bar Association’s stance that the amendment’s text did not specify a time limit for ratification.

“The founders of the Constitution deliberately avoided the potential turmoil of allowing states to retract their ratification votes indefinitely,” the legal association explained.

Former U.S. Rep. Cori Bush (D-Mo.), who in November urged Biden to utilize all available means to defend reproductive rights, including the formal recognition of the ERA as part of the Constitution, described Biden’s announcement as “a historic and significant move.”

“For more than a hundred years, we’ve championed the principle that ‘equality of rights under the law shall not be denied or abridged by the United States or any state based on sex,'” Bush remarked. “These 24 words must now be officially recorded and embedded in our Constitution to provide an essential defense against discrimination for women, LGBTQ+ individuals, and all underrepresented groups.”

Following Biden’s declaration, it is expected that the United States Archivist, Colleen Shogan, will now certify and publish the amendment.

In a statement from December, Shogan noted that in 2020 and 2022, “the U.S. Department of Justice confirmed that the ratification deadline set by Congress for the ERA is valid and enforceable,” suggesting that the ERA could not yet be certified. However, the senior administration official emphasized that “the Archivist is obligated to publish an amendment once it has been effectively ratified.”

“The interpretation of this and the view of the Equal Rights Amendment will ultimately be decided by the courts,” they added.

Kate Kelly, a human rights attorney and author of the book Ordinary Equality about the ERA, has argued that the amendment became part of the Constitution when ratified by Virginia in 2020.

“The Archivist has no constitutional or legal role in the amendment process,” Kelly stated. “She does NOT have the authority to determine what is or is not part of the U.S. Constitution. The President of the United States has made his administration’s position clear. That’s final. The ERA is ratified! This is a victory.”

Rep. Pramila Jayapal (D-Wash.) mentioned that Biden’s action on Friday pays tribute to “the efforts of generations of activists and organizers for equal rights.”

“While there remains much to do to ensure future generations of women inherit more, not fewer, rights than their predecessors, this declaration marks a significant milestone,” said Jayapal. “Now, we must continue the work to truly implement this across the nation.”