Biden’s Statement on the Equal Rights Amendment Is Straight From the Land of Make-Believe

With just days before leaving office, President Joe Biden has shared his personal belief that the Equal Rights Amendment is now part of the Constitution. This isn’t the first time that he’s been wrong on both the facts and the law, but, even as personal observations go, this one is particularly absurd.

Here, for the umpteenth time, are the facts. The Constitution provides that Congress, by a two-thirds vote, may propose an amendment to the Constitution and that it becomes part of the Constitution when ratified by three-fourths of the states (38) in the manner Congress requires.

Rep. Martha Griffiths, D-Mich., introduced House Joint Resolution 208 in 1971 to propose this language: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

As Congress had done 10 previous times, it included a seven-year deadline for state ratification in her resolution. The women’s groups backing the ERA supported doing so, and everyone knew that the deadline was binding.

Congress passed Griffiths’ resolution and sent it to the states on March 22, 1972. As the March 1979 deadline approached, 35 states had ratified the ERA, but five of those had pulled their support. Even after Congress (in a move later found unconstitutional) added 39 months to the process, that’s where the tally stood. The amendment failed to get the support of 38 states. The ERA was dead.

Just ask feminist leader Gloria Steinem, who was asked about the ERA’s status during an appearance on “The Oprah Winfrey Show” in January 1986. Steinem said that the ERA “now has to start the process over again, … be passed by the House and Senate, and go through all of the states’ ratification process.”

Even the liberal National Public Radio acknowledged just a few years ago that the 1972 ERA “fell short and expired in 1982.”

The Congressional Research Service says that the 1972 ERA “formally died on June 30, 1982.”

The U.S. Civil Rights Commission, in a report authored by none other than future Supreme Court Justice Ruth Bader Ginsburg, said that the 1972 ERA had to be ratified by its deadline to become part of the Constitution. It’s not part of the Constitution because it wasn’t ratified by the deadline.

So, what on earth is Biden talking about? Well, three states—Nevada in 2017, Illinois in 2019, and Virginia in 2020—passed resolutions “ratifying” the 1972 ERA decades after it expired.

Here’s some fantasy math for you: Start with the 35 states that passed ratifying resolutions, ignore the five states that withdrew their support before the deadline, and add the three states that pretended to ratify after the deadline and …. wait for it …. there are your 38 states! There might a universe where that makes sense, but it’s not this one.

Only two issues are relevant here. First, did Congress have authority to set a ratification deadline when it proposed the 1972 ERA? Yes. The Supreme Court unanimously upheld this authority in 1921. The Justice Department, during both Republican and Democratic administrations, has repeatedly agreed. I examined the arguments in detail (for example, here and here) and came to the same conclusion. I explained that conclusion to a House Judiciary Subcommittee in September 2023.

Second, had at least 38 states ratified the 1972 ERA by the deadline? The answer is no, whether you include or exclude the rescinding states. I don’t mean to sound condescending, but 35 and 30 are both less than 38. But don’t listen to me, take it from Ginsburg. In 2020, she said that the ERA should “start over” because “there’s too much controversy about latecomers.”

A stronger proponent of the ERA should be difficult to find, yet she asked the crucial question: “If you count a latecomer on the plus side, how can you disregard states that said, ‘We’ve changed our minds’?” Indeed.

In his statement, Biden said he agreed with the American Bar Association and “leading legal constitutional scholars” that the 1972 ERA is now part of the Constitution. I examined the scholars’ arguments at length in September 2023 and responded to the Bar Association last August. Like other ERA advocates, Biden must live in a world of make-believe where deadlines are the beginning, not the end, and where states ratify proposed amendments that do not exist.

States have sued, hoping to force the archivist of the United States to declare that the 1972 ERA is now in the Constitution. None of that spaghetti has stuck to the legal wall: The First Circuit Court of Appeals and the D.C. Circuit Court of Appeals rejected those arguments.

It’s worth noting what Biden did not do. While expressing his personal belief on the issue, he said nothing about the archivist declaring or certifying anything about the 1972 ERA.

Led by Sen. Kirsten Gillibrand,  D-N.Y., 47 Senate Democrats recently wrote Biden asking that he order the archivist to do so. The president neither has authority to do so, nor would his directive have any legal effect. And besides, the archivist said a month ago that “legal, judicial, and procedural decisions” prevent any certification. Either way, Biden’s statement never even mentioned the senators’ demand.

Finally, Biden’s own Justice Department has rejected his view. The department defended the archivist in one of those lawsuits and, in its appellate brief, argued that, while the states “argue that the ERA has been validly adopted notwithstanding the congressional deadline, they have not identified any relevant legal authority establishing that this is so.”

Neither did Biden.  

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