Saturday, January 18, 2025

Equal Rights Amendment: Law of the Land?

 
by. Pa Rock
Citizen Journalist

The Equal Rights Amendment to the United States Constitution was passed by Congress in 1972 and sent to the states for ratification, a process in which three-quarters of the state legislatures (38 of 50 states) had to vote to approve the measure before it could become an official Amendment to the the Constitutions.

The Equal Rights Amendment is a simple measure  designed to prevent discrimination based sex.  It reads:

Section 1:  Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.   Section 2:  The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

That is the text of the Amendment, and it is fairly simple and straightforward.   But Congress muddled the ratification process by attaching a preamble to the the proposed Amendment stating that it had to be ratified in seven years - by 1979.  Later Congress extended that deadline to 1982.

When 1982 rolled around only 35 legislatures of the 50 states had ratified the measure, and five legislatures (Nebraska, Tennessee, Idaho, Kentucky, and South Dakota) voted to rescind their ratification votes. Opposition was being stirred by people like Phyllis Schlafly and others who launched fear campaigns with claims that the Amendment would lead to things such as women being drafted and the establishment of unisex bathrooms.

The legislature of North Dakota rescinded its ratification of the Amendment in 2021.

But two arguments gradually developed that kept the Equal Rights Amendment on life-support.  First, some legal scholars opined that since the deadline was not part of the actual text of the Amendment, it had no legal force.   And some of those scholars, as well as others, argued that nothing in the Constitution gives a state power to rescind a ratification vote - once an Amendment is ratified by a state, it stays ratified by that state.

But the matter was little more than legal and intellectual yoga until January 27, 2020, when Virginia became the 38th state to ratify the Equal Rights Amendment.  At that point the Trump Department of Justice issued a quick legal opinion that the deadline for ratification of the Amendment did, in deed, have legal force and that the deadline had passed.  Two years later, in 2022, the Office of Legal Counsel released an opinion affirming the decision by Trump's Justice Department.

For an Amendment to officially become part of the US Constitution, it must be published by the National Archivist, a largely perfunctory duty, but the current Archivist, Colleen Shogan says that she cannot act because of the the opinion of the Office of Legal Counsel.

The matter has sat around collecting dust for more than two years until yesterday when it was again trotted out for more discussion.  President Joe Biden, who had been silent on the issue throughout his term in office, decided to revive it during his last week in office.  In a formal statement released by the White House, President Biden said:

"I have supported the Equal Rights Amendment for more than 50 years, and I have long been clear that no one should be discriminated against based on their sex.   We as a nation must affirm and protect women's full equality once and for all.

"On January 27, 2020, the Commonwealth of Virginia became the 38th state to ratify the Equal Rights Amendment.  The American Bar Asslciation (ABA) has recognized that the Equal Rights Amendment has cleared all necessary hurdles to be formally added to the Constitution as the 28th Amendment.  I agree with the ABA and with leading constitutional scholars that the Equal Rights Amendment has become part of our Constitution.  

"It is long past time to recognize the will of the American people.  In keeping with my oath and duty to the 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."

Good work, Joe.  Better late than never.

A presidential endorsement is not part of the ratification process, but there is some thought that it could help to goose the entire matter into the courts for a final resolution.

For the time being, at least, there is still reason to be hopeful that the United States Constitution will finally be expanded to secure and protect the rights of all Americans regardless of their sex - a guarantee that is long, long overdue.

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