“We must recognize the clear will of the American people and definitively enshrine the principle of gender equality in the Constitution. It is long past time that we put all doubt to rest. I am calling on Congress to act immediately to pass a resolution recognizing ratification of the ERA.”

President Joseph Biden Jr.

This statement, released by President Biden two years after the state of Virginia’s ratification, is being labeled “clear duplicity” by Nicole Vorrasi Bates, attorney and founder of Shattering Glass. Although Biden has implied Congress is responsible for recognizing the Equal Rights Amendment, many politicians, lawyers and even scholars question why the Executive Branch has still not published it. Most recently, the DC Court of Appeals heard the oral arguments for Illinois v. Ferriero, but to this, Vorrasi Bates says, “The Biden Administration is actually going into court and fighting against the Equal Rights Amendment, a right which would have saved Roe v. Wade.”

Illinois v. Ferriero and the DC Court of Appeals 

The Illinois v. Ferriero case was filed in 2020 by the Attorney Generals of Virginia, Illinois, and Nevada to convince the National Archivist at the time, David Ferriero, to recognize the ERA as the 28th Amendment to the US Constitution. In March of 2021, however, the DC Circuit denied the plaintiffs’ standing for a lack of ‘legal harm’ (defined as an ‘injury that is specific to the states’). Then this September, the Department of Justice claimed that the plaintiffs’ alleged injury is not personal to them nor concrete enough to be addressed in a judicial setting and asked for the DC Court of Appeals to uphold the dismissal. Sarah Harrington, the Deputy Assistant Attorney General of the Department of Justice, also argued that only a court, not Congress, can decide the legitimacy of the ERA’s deadline*. To Vorrasi Bates, this response makes the administration’s intentions suspect, since the administration publicly repeated that Congress is responsible for the ERA and yet presented a different opinion in court. (See The Biden Agenda for WomenStatement from President Biden on the Equal Rights Amendment, and Effect of 2020 OLC Opinion on Possible Congressional Action Regarding Ratification of the Equal Rights Amendment.) Vorrasi Bates contends that the Biden Administration would refuse to publish it even with a Congressional deadline removal. 

Illinois’ Solicitor General Jane Notz and Assistant Attorney General Priyanka Gupta have argued that although the ERA is legally valid without publication, it will not command its intended effect without publication and certification, which would then enable all US citizens to benefit from the full legal right to equality, and compel states to change current discriminatory laws. But Columbia Law School’s ERA Project asserts it is unlikely that the states will be given standing, calling the argument a “very fine needle for the states to thread.” And even if standing is found, the ERA’s publication would not end the battle for its publication.

In addition to this case, at least four other cases have been filed. Equal Means Equal, the Yellow Roses, and a citizen named Katherine Weitbrecht filed a joint suit against Ferriero in 2020, asserting that congressional deadlines on the amendment process violate the original intentions of the Constitution’s framers and undermine state power. But the suit was dismissed for a lack of standing in 2021 and denied a rehearing in 2022, citing, “Women’s alleged risk of harm” does not satisfy a concrete injury caused by the Archivist’s action. Three other lawsuits were filed by the Elizabeth Cady Stanton Trust in Michigan, Rhode Island, and New York, each of which were meant to urge the Supreme Court to consider the ERA’s validity before overturning Roe v. Wade. 

Allies to Illinois, Virginia, and Nevada 

From the beginning, Illinois, Nevada, and Virginia have been supported by other states and organizations. In a press conference held after the D.C. Circuit Court of Appeals heard the oral arguments, Illinois’s Attorney General, Kwame Raoul, declared: “Equality based on sex is not radical. Don’t believe anyone who says it is too late for the ERA.” Speakers included Congresswoman Carolyn B. Maloney, Eleanor Holmes Norton, Brenda Lawrence, and Jan Schakowsky, along with Senator Audrey Gibson, Zakiya Thomas (President and CEO of the ERA Coalition), Ellie Smeal (President and Co-Founder of the Feminist Majority Foundation), Bear Atwood (Vice President of NOW), and a member of the US military. Many in attendance emphasized the ERA’s urgency in the context of reproductive rights and protecting future generations, while the ERA Coalition commented, “today’s oral arguments prove what we already know: the ERA is neither merely symbolic nor redundant. Otherwise, opponents wouldn’t be fighting so hard to make sure it isn’t recognized as the 28th Amendment to the U.S. Constitution.” 

While the Archivist’s failure to publish the ERA is supported by organizations like the Eagle Forum—a conservative pro-life group founded by Phyllis Schlafly—and Concerned Women for America, at least thirteen amicus briefs have been filed in support of plaintiff states. Presenting a variety of concerns, all argue the ERA is a solution to gender inequality. One brief, written on behalf of 86 corporate companies with diverse commercial interests including Google, Apple, Pepsi Co, and American Express, described how sex equality would improve economic output, expand their customer bases, and remove the barriers women face to the labor market such as unequal access to education and housing, inadequate healthcare, sexual and intimate partner violence, and economic insecurity. They also asserted that it is more urgent now, given that women lost 11.3 million jobs in April 2020. Further, current legislation, such as the Pregnant Workers Fairness Act, can be repealed by Congress or deprioritized by the Executive Branch. They conclude that the Archivist’s actions undermine full economic participation, harming plaintiff states. Representing the interests of workers, the Los Angeles County Federation of Labor (affiliated with the national AFL-CIO) unanimously passed a resolution that called on Biden to certify and publish the ERA in August. 

In addition to briefs, multiple parties have sent letters before and after the Dobbs decision to the Executive Branch, requesting Biden publish the ERA. In September, Shattering Glass crafted a letter to Biden from the American Medical Women’s Association (AMWA). Their main message was that the ERA is the most powerful tool for legalizing reproductive rights and without a constitutional base, comprehensive care, and even healthcare providers will continue to be threatened. The President of the American Constitution Society and former Senator Russ Feingold also sent a letter in September to Majority Leader Schumer, emphasizing the importance of bodily autonomy and the implications of the Dobbs decision not only on legal abortion, but also racial disparities in pregnancy-related deaths, economic independence, and the ability to marry regardless of sexual orientation or race. Feingold has been consistent in his position that the ERA must be enshrined and wrote to Chairwoman Maloney in March explaining that the amendment has met all constitutional requirements. Additional letters in support of the ERA include: 

  • Chairwoman Maloney to Biden and Harris (October 2021)
  • Senators Blumenthal, Klobuchar, and Cortez Masto with Chairwoman Maloney and Congresswoman Speier to Assistant Attorney General Schroeder (January 2022
  • Laurence Tribe to Chairwoman Maloney (March 2022

Fate of the ERA 

Vorrasi Bates is still not aware of any valid reason for why Biden is not publishing the ERA. And while several other legislators she has spoken to said they support gender equality in the Constitution, they have been reluctant to act. “It’s playing politics with the lives and the rights of women, girls, and the LGBTQIA+ community,” Vorrasi Bates contends, “It’s going to take a large public outcry to get Biden to publish it.” Despite this, she has faith that the ERA will survive, since its deadline is “illegitimate.” The DC Court of Appeals has not decided Illinois v. Ferriero yet, but a resolution to remove the deadline is currently stalled in the Senate. It’s future may rest on the results of the midterm elections, as the New York Times warns that Biden’s agenda might become limited if Republicans capture Congress. The results can therefore make a resolution more improbable and the ERA’s publication by the Executive Branch more necessary. 

*(When the ERA was originally passed in 1972, it was placed before the state legislatures, with a seven-year time limit to acquire ratification by three-fourths (38) of the state legislatures. The deadline was then extended to 1982.)

About the author: Caitlin Rich is a 2022 fellow in the Sy Syms Journalistic Excellence Program* at Women’s eNews, funded by the Sy Syms Foundation. The Sy Syms Journalistic Excellence Program at Women’s eNews fellowship supports editorial and development opportunities for editorial interns in the pursuit of journalistic excellence.

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