Finish the job; publish the ERA

President Joe Biden can still harvest a few smoldering coals from the ashes of his recent disastrous political record. True, his Democratic party has lost the presidency and Congress. But he can assure his legacy with at least half the population by adding the Equal Rights Amendment to the U.S. Constitution. If Biden acts, the ERA would enshrine gender equality in the U.S. Constitution as should have been inevitable after 2020, when Virginia became the 38^th and last state (of three-quarters) needed to ratify.

In a bureaucratic quirk, no amendment can be added to the Constitution until the Archivist of the United States certifies it as valid and publishes it in the Federal Register. No surprise that President Trump’s Justice Department blocked this, citing the fact that Congress in 1972 imposed deadlines (first seven years, then three years) for ratification that expired before the needed final states signed up.

But incredibly, Biden’s administration, too, went to court to block publication. At the same time, the White House has protested that the president really, really supports women’s equality.

The U.S. is the only country with a Bill of Rights that doesn’t include equality for women.

Sorry, Joe. You can’t have it both ways. Many prominent legal scholars have argued that the deadlines were merely advisory, particularly since they were not included in the text of the amendment. The Constitution’s Article V, which explains how to add an amendment to the Constitution, says nothing about deadlines and does not give Congress the power to set one.

Here is the text of the ERA that the majority of states have approved and two administrations find so threatening:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex. 

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

Had the ERA been added four years ago, it might have prevented the Supreme Court’s 2022 Dobbs judgment, which, outrageously, gave state legislatures the final say on women’s pregnancies. The amendment would prevent attempts of states such as Texas, which has outlawed abortion, to track pregnant women to prevent them from traveling to obtain a legal abortion elsewhere. And an amendment would be far more stable and permanent than a gender equality law which could, at any time, be repealed.

Photo by Nathan Dumlao on Unsplash

The ERA is long overdue. Twentieth-century suffragist Alice Paul authored the ERA; it was first introduced in Congress in 1923. It didn’t pass Congress until 1972, when it then began its journey through the states.

I remember it well. As a teenager I heard with disbelief the opponents’ pearl-clutching insistence that the ERA would allow women to go into combat, permit gay marriage and introduce unisex toilets nationwide. The horror of it all.

All these decades later and without the help of the ERA, military women in wartime go into combat, gays routinely marry, and same-sex toilets are no big deal. Still, the US Constitution is the oldest one in the world with a Bill of Rights that does not include women’s equality. There has been one excuse after another on the part of lawmakers and others to bar an amendment that would engrave women’s equality in our Constitution; I can only conclude that what they fear is nightmarish prospect on the part of some men that they won’t be able to control women.

The nonprofit organization Shattering Glass has taken the lead in fighting for the ERA. Its executive director and founder, Nicole Vorassi Bates, last week organized a Zoom call that I joined, listening to experts from many fields, as well as Sen. Kirstin Gillibrand (D-NY). Gillibrand reported that 46 senators have urged Biden to instruct the archivist to publish the amendment. More than 60 religious organizations have sent their own letters to Biden. The American Bar Association contends that the ERA is, in effect, the 28^th Amendment already and supports publishing the amendment. So far, crickets from the White House.

Donald Trump, who is about to become president, will never support or publish the ERA. He is no friend to women’s rights. The conservative 2025 Project has, as its goal, repealing gender equality “out of every federal rule, agency, regulation, contract, grant, and piece of legislation that exists,” as expressed on page 4 of the 900-page, “Mandate for Leadership: The Conservative Promise.”

Only a constitutional amendment can protect American women from losing any more rights.

When Biden announced in 2022 that he would run for a second term, breaking his promise that he intended to be a one-term president, his campaign said he wanted to “finish the job” of his first term.

Biden can do exactly that if he truly supports women. He can finish the job and publish the ERA.