If I had a dollar for each thing Joe Biden did for women’s rights during his four years as president, I would have zero dollars. So when Biden declared on his way out the door—with the bravado of someone who’d just found the cure to cancer—that the Equal Rights Amendment is officially the “law of the land,” I laughed. He might as well have said, “Roe is back, ladies!” or announced that Chappell Roan’s “Hot to Go” is now the national anthem.
Because, regardless of his intention, his declaration doesn’t mean shit.
Before I tear into his statement, let’s go on a quick journey through the embattled would-be 28th Amendment’s century of history. Like so many other women’s issues in the United States—equal pay, abortion rights, paid maternity leave—what seems like a simple, common-sense concept has been tangled into a stupid hairball of party politics.
The ERA, which states that “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex,” was first introduced by suffragists Alice Paul and Crystal Eastman in 1923, but it would take another 40 years for it to be approved by Congress. When it finally did in 1972, it received bipartisan support, with 78% of House Republicans and 84 of Senate Republicans voting in favor of it. Once Congress passes an amendment, three-fourths of states need to ratify it before it can be added to the Constitution. The ERA had seven years for 38 states to ratify it; that deadline was eventually extended to 1982. However, there’s nothing in the Constitution that says an amendment has to have a deadline, so proponents argue that since Congress set the deadline on the ERA, they can just as easily lift it. (We’ll return to the controversy around this deadline in a moment.)
Then Phyllis Schlafly, a conservative writer and activist with huge political ambitions, saw in the amendment an opportunity to lift her profile in Washington, D.C., and mobilized suburban housewives and religious organizations in a crusade called Stop ERA. She, idiotically, argued that passing the ERA would mean women had to sign up for the draft; separate-sex bathrooms would become illegal; widows would lose Social Security benefits; and that, if a couple got divorced, each parent would be granted equal custody—not that they’d get equal time spent with all children, but that one parent would get full custody of one kid and the other parent would get full custody of the other. In essence, she scared American women into believing that The Parent Trap would be constitutional law.
And it worked. Schlafly’s Stop ERA campaign slowed ratification efforts in several southern and Bible Belt states and eventually succeeded in getting five states—Idaho, Kentucky, Nebraska, South Dakota, and Tennessee—to rescind their ratifications. “I’m absolutely convinced that it would have passed without her involvement,” Don Critchlow, author of Phyllis Schlafly and the Grassroots Right and Future Right, told History.com.
By 1982, only 35 states ratified the ERA, three states shy of the three-fourths needed. But feminist activists and legal scholars argued then—and have continued to argue—that the deadline actually has no legal relevancy; it was included in the preamble of the amendment and not the actual amendment. Nevada ratified in 2017; Illinois ratified in 2018; and, in 2020, Virginia became the 38th state to ratify the ERA.
As with everything else in our country, whether or not the ERA became the 28th Amendment in 2020 is divided along political lines. Pro-ERA advocates believe it’s officially part of the Constitution because it met the three-fourths requirement and the deadline shouldn’t matter. They argue there’s precedent for this; in 1798, President John Adams simply told Congress that the 11th Amendment had been adopted by three-fourths of states, meaning it was officially part of the Constitution.
Conservatives, of course, say no, the deadline for passing the ERA is up, and that’s that. They also say that women are already protected against gender-based discrimination under the 14th Amendment. However, that amendment merely states, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” By this definition, reversing Roe v. Wade could be considered abridging a woman’s “privilege” to make decisions about her own body—but obviously, the conservative Supreme Court doesn’t interpret it like that. Further, many conservatives, like former Justice Antonin Scalia, believe the 14th Amendment actually doesn’t include protections based on gender, because that wasn’t the original intent of the founding fathers. So when conservative activists cite the 14th Amendment as a reason we don’t need an ERA, they are—shocker—lying.
The 14th Amendment doesn’t include the words “women” or “sex.” Actually, neither “women” nor “sex” appear anywhere in the Constitution. Given how much horrible shit women and gender-non-conforming people have been through in our nation’s history, it would be nice if our governing document had a little something that explicitly said that you can’t fucking discriminate against women or anyone based on their sex.
So let’s return now to Biden’s statement on Friday. “It is long past time to recognize the will of the American people. In keeping with my oath and duty to 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.”
His declaration was partially based on the position of the American Bar Association (ABA), which says the ERA is an official amendment. “The American Bar Association has recognized that the Equal Rights Amendment has cleared all necessary hurdles to be formally added to the Constitution as the 28th Amendment,” Biden said. “I agree with the ABA and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution.”
But it’s no longer 1798; a president can’t just say something and have it hold legal weight. In 2020, the Trump-staffed Justice Department’s Office of Legal Council stated that “the ratification deadline established by Congress for the ERA is valid and enforceable,” meaning Virginia’s efforts made no difference. Biden’s DOJ then reaffirmed this opinion in 2022. (Thanks a lot, Merrick Garland!) If Biden really wanted to make the ERA the “law of the land,” he would have needed to direct Colleen Shogan, a Biden appointee and the head of the National Archives, to ignore the DOJ decision and publish the ERA as the 28th Amendment anyway.
“The president is not going to direct the archivist,” a senior White House official told reporters on Friday, but the official later added that “the archivist is required to publish an amendment once it’s ratified, so the archivist is required to publish this amendment.” Must be nice to do the rhetorical version of having your cake and eating it, too—or whatever this statement is.
Except, even if Biden had directed Shogan, there’s a chance she would have refused. She said as recently as December that the ERA deadline expired and she wouldn’t add the amendment without action from Congress. During her confirmation hearing, she similarly told senators that she would defer to Congress or the courts on this matter.
Democrats and activists have been urging Biden to declare the ERA constitutional, so it seems his statement was mostly a response to them, even if it was too late and largely pointless. Regardless, plenty of Dems and celebs celebrated on Friday. Padma Lakshmi wrote, “We must celebrate our wins while we can!” on Instagram and Hillary Clinton tweeted that she was “thrilled.”
So where does that leave the ERA? Still in limbo. There will absolutely be lawsuits filed citing the ERA, but they’ll likely be dismissed. Even if Biden had ordered Shogan to publish it, the Trump administration would have 100 percent sued to block it—likely punting it up to the Supreme Court, where it’s not hard to imagine the 6-3 conservative court ruling against the ERA.
In February 2020, months before her death, former Justice Ruth Bader Ginsburg said the ERA deadline had passed. “I would like to see a new beginning,” she told the Georgetown University Law Center. “I’d like it to start over.” Now, this remains the most realistic path forward for the ERA—or a similar amendment that establishes equality between men and women as a constitutional right.
So as much as I would have liked to collect one single dollar, Biden’s record on protecting and/or furthering women’s rights remains at zero. He merely twirled out of the White House singing “SupercalifragilisticexpialiEqualRights!” like he was Mary fucking Poppins.
GET JEZEBEL RIGHT IN YOUR INBOX
Still here. Still without airbrushing. Still with teeth.
