WASHINGTON — On Tuesday, the U.S. archivist and deputy archivist issued a rare joint statement indicating that the Equal Rights Amendment (ERA), proposed in the 1970s, cannot be certified without additional intervention from Congress or the courts. This comes as Democrats rally for President Joe Biden to take unilateral steps towards its ratification before his term concludes next month.
The initiative to amend the Constitution to prevent discrimination based on sex has been at a standstill for decades. The amendment, which asserts equal legal rights for men and women, was sent to states by Congress in 1972, initially giving them seven years to ratify it. The deadline was later extended to 1982. However, it failed to receive the required approval from three-fourths of the states by the time limit.
In a significant development, Virginia’s legislators voted to ratify the ERA four years ago, marking the 38th state’s approval—though this occurred nearly forty years after the congressional deadline had lapsed for ratification.
Recently, more than 120 House Democrats, including Reps. Cori Bush and Ayanna Pressley, urged Biden to instruct the archivist to certify and publish the amendment, disregarding the missed deadline. They emphasized that affirming his legacy on equal rights with a decisive action regarding the ERA would be a cornerstone event for both his presidency and the Biden-Harris administration.
Despite the pressures, Archivist Colleen Shogan and Deputy William J. Bosanko, tasked with certifying new amendments after meeting the necessary ratification conditions, clarified that neither they nor Biden can take action without congressional or judicial intervention to remove the deadline.
They stated, “In 2020 and again in 2022, the Office of Legal Counsel of the U.S. Department of Justice confirmed the validity and enforceability of the ratification deadline set by Congress for the ERA.” Furthermore, court rulings have consistently reinforced the validity of the stipulated deadlines, leading the archivists to conclude that they cannot lawfully publish the ERA.
Last year, Congress attempted to remove the deadline in another effort to facilitate the amendment’s ratification, but the initiative failed to achieve the necessary 60 votes in the Senate. Senator Kirsten Gillibrand, spearheading the campaign among Senate Democrats, criticized the archivists’ interpretation, arguing they were improperly engaging in a strictly constitutional matter despite it being a ministerial role.
Gillibrand urged Biden to overlook the Office of Legal Counsel memo and proceed with certifying the ERA, asserting that such memos are advisory and could be set aside by the current administration.
According to a source familiar with the situation, discussions have been underway within the Biden administration about the best strategy moving forward. The prevailing belief is that Congress should eliminate the deadline to avoid potential legal disputes concerning the amendment.
White House spokesperson Kelly Scully emphasized, “President Biden is committed to ensuring that the Equal Rights Amendment is firmly embedded in the Constitution.” She added that senior officials will continue to engage with key congressional figures and stakeholders on this important matter in the coming weeks, stating, “It is long overdue that we acknowledge the clear intent of the American populace.”