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In a bold Friday declaration, President Joe Biden announced that he considers the Equal Rights Amendment (ERA) “the law of the land.” The statement, made during a speech at the U.S. Conference of Mayors, was hailed by ERA supporters but has no formal legal effect without certification by the national archivist, Colleen Shogan.
“The Equal Rights Amendment is the 28th amendment to the Constitution — now,” Biden proclaimed, citing the 2020 ratification by Virginia as clearing the hurdle for its adoption. However, legal experts and archivists have questioned the statement’s impact, given unresolved judicial and legislative challenges.
A Decades-Long Struggle
Originally passed by Congress in the 1970s, the ERA aims to guarantee equal rights under the law regardless of sex. While Congress imposed a 1982 deadline for ratification by the required 38 states, proponents argue the deadline was nonbinding since it appeared in the amendment’s preamble rather than its text. Virginia’s ratification in 2020 brought the total to 38, but disputes over the lapsed deadline have kept the ERA in legal limbo.
Biden’s administration has thus far refrained from directing Shogan to certify the amendment, maintaining that her role is “purely ministerial,” meaning that the archivist is required to publish the amendment once it is ratified.
Legal and Political Implications
While Biden’s declaration carries no immediate legal weight, it has injected new momentum into the ERA debate. Martha Davis, a law professor at Northeastern University, said the president’s statement raises critical questions about the weight of Justice Department opinions and whether the archivist must act in light of Biden’s position.
“If the president disowns the OLC opinion, on what basis can the archivist refuse to act?” Davis asked. She also noted the timing of Biden’s statement, suggesting earlier action could have bolstered legal efforts to compel certification.
Supporters Push for Certification
Following Biden’s announcement, about 40 ERA advocates rallied outside the National Archives, calling for immediate action. Rosie Couture, co-founder of the Young Feminist Party in Virginia, urged Shogan to certify the amendment swiftly.
“Colleen Shogan, girl, you better sign this super fast,” Couture said.
Zakiya Thomas, president of the ERA Coalition, expressed mixed feelings, wishing Biden had acted earlier but appreciating his recognition of the ERA. “The act itself is more important than the timing,” Thomas said, adding that the incoming Trump administration’s stance could complicate matters.
Next Steps and Challenges
The path forward remains fraught with uncertainty. Congress and the courts may need to clarify the ERA’s legal status, and Biden’s announcement may face resistance from the Trump administration, set to assume office Monday.
“Let’s assume the incoming administration will try to take it away,” Thomas said. “They’ll have to answer to the rest of the country, who says, ‘No, we have this foundational right.’”
