Virginia, in 2020, became the 38th state to ratify the Equal Rights Amendment, the effort led by Jennifer McClellan, then a state senator, now a congresswoman.
Thirty-eight being the magic number, the amendment, passed by Congress way back in 1972, has been sitting in constitutional limbo since.
That won’t change because of what President Biden did on Friday in declaring the Equal Rights Amendment to be the law of the land, setting up a legal fight that will play out under the thumb of Donald Trump, and almost certainly end up being decided by the Trump-packed U.S. Supreme Court.
But for now …
“This announcement marks a historic turning point in the century-long fight for gender equality,” McClellan said in a statement on Friday.
Biden’s declaration directs the Archivist of the United States, Dr. Colleen Shogan, to certify and publish the amendment, but Shogan said in a December statement that the amendment “cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions,” most notably, legal conclusions from the Department of Justice in 2020 and 2022 affirming that ratification deadlines were enforceable.
Thirty-five states voted to ratify the amendment in the 1970s, three states short of what was needed to ultimately add the amendment to the Constitution.
A renewed effort led to Nevada approving the ERA in 2017, and Illinois did the same in 2018, leaving the amendment one state vote of approval short, assuming no time deadline had passed.
The initial 1972 vote in Congress to approve the amendment had a seven-year deadline for the necessary number of states to sign on that was later extended to 1982.
“It is long past time to recognize the will of the American people,” Biden said in a statement on Friday. “In keeping with my oath and duty to Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: The 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex.”
I don’t see this ending with the amendment being ratified.
Maybe if the 2024 election had turned out differently, but even then, there’s the Trump Supreme Court.
I wish I could share McClellan’s optimism.
“Today, our nation takes a historic step to ensure our daughters and granddaughters will have more rights than their mothers and grandmothers did. However, it cannot be the last,” McClellan said in her Friday statement. “Congress took nearly 100 years after ratification of the 14th Amendment to pass legislation enforcing its ban on racial discrimination. I look forward to publication of the ERA as the 28th Amendment and working to enforce its mandate as soon as possible.”
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Chris Graham
