Biden Lends Support to Reviving Women’s Equal Rights Amendment

WASHINGTON — President Joe Biden asked Congress Thursday to revive chances for the Equal Rights Amendment to become part of the Constitution.

The deadline that Congress set for states to ratify the amendment to guarantee equal rights for women expired in 1982.

After it expired, Virginia’s General Assembly voted to approve it in 2020, which would have tipped the balance of state votes to make it part of the Constitution if not for the expired deadline.

Biden is urging Congress to approve a resolution that would remove the deadline.

“We must recognize the clear will of the American people and definitively enshrine the principle of gender equality in the Constitution,” Biden said in a statement. “It is long past time that we put all doubt to rest.”

Biden’s statement coincided with a House resolution proposed Thursday calling for no further delays to the Equal Rights Amendment.

The resolution says the ERA “has met the requirements of the Constitution and become valid to all intents and purposes as a part of the Constitution.”

The resolution was co-authored by Rep. Jackie Speier, D-Calif., the Democratic Women’s Caucus co-chair.

“Until the ERA is recognized, we will not be able to address the gender wage gap, pregnancy discrimination, persistent and disturbing violations of the rights of survivors, and more,” Speier said in a statement.

The procedure for an amendment requires that Congress approve it before sending it to the states for ratification. At least 38 states must ratify an amendment before the National Archives and Records Administration can certify its status as part of the U.S. Constitution.

Virginia became the 38th state with its 2020 vote but the Trump administration sent a legal memo ordering the National Archives and Records Administration to ignore what would have been the final state ratification.

Women’s rights groups and elected officials filed lawsuits against the Trump administration order but none succeeded. Some of the lawsuits continue.

One of the elected officials still pushing for the ERA is Rep. Carolyn Maloney, D-N.Y. She followed Biden’s call to action with a statement of her own.

“The ERA should be added to the Constitution immediately,” Maloney said. “The Justice Department’s new analysis acknowledges serious weaknesses in the Trump-era memo and clarifies that Congress — not the executive branch — is in control of amending the Constitution.”

She argues that new action by Congress to remove the ratification deadline is not necessary.

“The administration must not stand in the way of recognizing the ERA’s ratification, and should immediately instruct the archivist of the United States to perform his duty under the law to publish the ERA as the 28th Amendment to the Constitution,” she said.

The new analysis she mentioned refers to a White House Office of Legal Counsel memo issued on Wednesday.

It mentioned the 2020 Trump administration memo when it said, “Whether the ERA is part of the Constitution will be resolved not by an [Office of Legal Counsel] opinion but by the courts and Congress.”

It added, “Moreover, the 2020 OLC opinion does not preclude the House or the Senate from taking further action regarding ratification of the ERA. As a co-equal branch of government, Congress is entitled to take a different view on these complex and unsettled questions.”

The House already has approved a resolution removing the deadline. Senate action still is needed but has been stalled by Republicans.

The legal questions are complicated by the fact that five states rescinded their ratification of the ERA. If the rescissions are counted, then only 32 states have ratified the amendment, fueling arguments that it should not be added to the Constitution.

The rescissions were prompted partly by arguments that the Equal Rights Amendment would be redundant legislation. The equal protection clause of the 14th Amendment gives all American citizens a right to equal treatment under the law, regardless of gender.

In addition, some state lawmakers changed their minds after evidence the Equal Rights Amendment might expand women’s rights to abortion.

Tom can be reached at [email protected].