Bending the Arc

The Equal Rights Amendment (ERA) was introduced to congress in 1971, proposing that it should be clearly written into the constitution that people should be protected equally under the law in the United States no matter their gender. The House of Representatives passed the legislation with overwhelming margins in both parties. One year later it passed the Senate with an eighty-four to eight majority. The next step would be for 3/4 of the states to adopt and then it would be added as a constitutional amendment. In five years they were only three states short of the number needed. Unfortunately, this is when a vocal high profile anti-feminist conservative activist, Phyllis Schlafly, led a resistance to the ERA effort using scare tactics and misinformation. It worked and the legislation was stalled for years.

Then in 2020 three more states, Nevada, Illinois and Virginia adopted the ERA through the work of women activists in response to the loss of women’s rights - hitting the magic number for ratification. At that point the ERA cleared all the bars for becoming a constitutional amendment. All that was left was for the President to contact the national archivist and tell them to publish the ERA into law.

But, when those last three states ratified, the Trump White House sent a memo saying that the national archivist could not publish the ERA because the original piece of legislation had a deadline of 1982.

Because of that deadline you would think the amendment was over. But there is clear legal argument for the continuation of the ERA. Including the fact that constitutional amendments don’t normally have time limits. The 27th Amendment was ratified in 1992, a full 223 years after it was introduced. Also there is nothing in the constitution that says an amendment has to be passed within a particular time limit. In August of 2024, the American Bar Association made a public statement that a deadline for ratification of an amendment to the U.S. Constitution is not consistent with Article V of the Constitution.

The point is that there is a real legal challenge to Trump’s White House memo to the archivist. All President Joe Biden has to do is pick up the phone and tell the national archivist to publish the ERA (which has jumped every constitutional hoop - passing overwhelmingly in the House and Senate, and 3/4 of the states adopting the legislation).

Yes, there will be undoubtedly a legal challenge. Currently over 45 Senators and over 100 House members have written and encouraged Biden to call the national archivist and put the publishing of the ERA into motion — then let it work through the courts as it should.

The publishing of the ERA would be a significant firewall for legislation that would discriminate against women and persons in the LGBTQ+ community. 
Contact President Biden and Vice President Harris today, requesting they make publishing the ERA before the end of their term a priority.

Read more about the full 100-year history of the ERA