Leave nothing on the table – President Biden, publish the ERA!

Dear President Biden,

“Needs must” is a phrase meaning something that is necessary or unavoidable. Despite a public promise that you wouldn’t interfere with your son’s fate, leaving him in prison under the tender mercies of the Trump administration was too much to countenance. We agree. The danger was obvious.

Now we want you to reexamine, quickly, your administration’s obstruction of the Equal Rights Amendment and the danger facing women in the next regime as well. Women and the LGBTQ community now face an “originalist” Supreme Court with no regard to the Equal Protection Clause or the bedrock principle of stare decisis, and we are now literally dying from forced-birth laws. Never has it been more dangerous that a whole class of people, women, have no representation in the Constitution, other than the 19th Amendment’s right of suffrage, and even that may be at risk.

The ERA has the 38 ratifications necessary for it to become our 28th amendment under Article V of the Constitution, which made no mention of time limits for amendments. The court’s literalists should rule that the deadline originally imposed by Congress was unconstitutional, it is more likely that they, and their Project 2025 donors, will continue to disenfranchise and subjugate us, as we’re seeing in GOP-led states now.

You could not stop the reversal of Roe, and the loss of constitutional rights that women have enjoyed for almost 50 years. But your legacy can include having the US Archivist certify and publish the ERA as our 28th Amendment to ensure equality for us all.

Needs must, sir! The danger is obvious and we are running out of time.

(usatoday.com) “There’s no deadline on women’s equality:Add the Equal Rights Amendment to the Constitution!

It was no surprise that the Trump administration pushed back against the amendment’s publication, but I was shocked to learn that Biden administration lawyers were in court opposing it, too. If President Joe Biden means to support the ERA, like he has said, then he needs to change direction quickly and put the full force of his government’s authority behind this critical constitutional amendment, rather than fighting it in court. 

What is the ERA?

Drafted by suffragist Alice Paul in the 1920s, the bill didn’t move much until the 1970s when it was picked up again during the women’s movement. By 1977, 35 states had approved it. Then, right-wing religious activists worried that this amendment would lead to, God-forbid, “gender-neutral bathrooms, same-sex marriage and women in military combat,” according to the Brennan Center for Justice.

Opponents got a deadline for ratification of seven years inserted into the 1972 ERA(Article V of the Constitution makes zero mention of deadlines for amendments).The deadline was extended to 1982, and that date passed without the 38 states needed to publish and issue a new Constitution.

By 2020, three more states had signed on, and the ERA had the 38 ratifications necessary for it to become the 28th Amendment.

Fast-forward to this year [2022]: We already have gender-neutral bathrooms, same-sex marriage (at least for now) and women in combat. Now, lawmakers and right-wing organizations are pushing back against the ERA because they worry that, if published, it would again consecrate women’s rights to abortion care after they got Roe v. Wade overturned. 

Why it matters that ERA should have already published 

The publication of the ERA is a simple ministerial action and should have happened when Virginia became the latest state to ratify it in January 2020. But because the Trump administration stepped in to block its enactment into forceon the grounds of an arbitrary deadline, the U.S. archivist didn’t certify and publish the ERA as required by statute.

Now, Biden administration lawyers are actually arguing in court that this nonsensical deadline has passed and that advocates for the ERA should have to start from square one. Prominent constitutional law scholars disagree. 

And publishing the ERA matters a lot. Nicole Bates, executive director of the nonprofit organization Shattering Glass, explained to me why: “Publishing first gives a presumption of validity. It sends a huge message to people that women and LGBTQ+ persons are equal. But it would also serve to shift the burden back to the opponents of the Equal Rights Amendment to initiate a lawsuit challenging it.”  

Finally, the argument that the ERA is actually a hindrance to women’s and LGBTQ progress has no merit. Cementing a right explicitly in the Constitution is more important than ever. Women’s rights and LGBTQ rights are under attack. In order to fulfill an ideological agenda, our highest court has decided to roll back women’s rights by reading the Constitution without regard to the Equal Protection Clause or the bedrock principle of stare decisis, requiring courts to abide by precedents laid down as applicable to a similar set of facts. 

Biden cannot overturn the Supreme Court’s abominable decision reversing Roe, but he can push for publication of an amendment that has already met all the constitutional requirements to become law. It is also something tangible that he could point to as work he has done to help women regain constitutional rights they’ve enjoyed for almost 50 years and then lost under his watch.“