The National Archives will not publish the Equal Rights Amendment as part of the Constitution — as some Democratic activists had hoped before the end of President Biden’s term — because the amendment reached the support threshold from state legislatures long after the original deadline for ratification, officials at the National Archive said Tuesday.
The Archivist of the United States, Colleen Shogan, and her deputy, William Bosanko, say they will follow the law and court precedent with respect to the original deadlines for ratification of the ERA. According to a legal memo from the Justice Department’s Office of Legal Counsel, the ERA had to have been ratified by 38 states seven years after it originally passed through Congress in 1972. The 38th state, Virginia, did not ratify the amendment until January 2020.
“As Archivist and Deputy Archivist of the United States, it is our responsibility to uphold the integrity of the constitutional amendment process and ensure that changes to the Constitution are carried out in accordance with the law. At this time, the Equal Rights Amendment (ERA) cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions,” Ms. Shogan and Mr. Bosanko said in a statement.
“Court decisions at both the District and Circuit levels have affirmed that the ratification deadlines established by Congress for the ERA are valid. Therefore, the Archivist of the United States cannot legally publish the Equal Rights Amendment,” the two added. “As the leaders of the National Archives, we will abide by these legal precedents and support the constitutional framework in which we operate.”
On Sunday, more than 120 members of the House — all them Democrats — wrote to Mr. Biden urging him to disregard the 2020 Office of Legal Counsel memo and publish the ERA as a Constitutional amendment anyway.
“We must continue our efforts to fully affirm and recognize the equality of rights for all people, regardless of sex, as part of our Constitution, a vital effort that has never been more urgent,” the letter, organized by Congresswoman Cori Bush and Congresswoman Ayanna Pressley said. “This action is essential as we prepare to transition to an administration that has been openly hostile to reproductive freedom, access to health care, and LGBTQIA+ rights.”
The League of Women Voters says that the ERA must be unilaterally ratified because of the 2024 election results. “The 2024 election results were not friendly to women’s equality, and our future status in the country is at stake. It’s imperative that President Biden take urgent action,” the group said in a press release.
The league included an example email that its members could send to the White House that included thanking Mr. Biden for his work on the Violence Against Women Act, and telling him to direct the Archivist to publish the ERA.
The woman whom many consider the driving force behind the death of the ERA in state legislatures back in the 1970s, Phyllis Schlafly, warned of the impacts on women and girls of the ERA, including their inclusion in the draft. Now, opponents and those skeptical of the ERA say that the original amendment has lost its meaning due to activists’ expanded interpretation of it to include protections for gay and transgender people, despite the fact that the ERA only mentions biological sex.
In an article for the University of Georgia Law Review in 2021, Courtney Hogan writes that a 2020 Supreme Court case, Bostock v. Clayton County, which held that gay people and other sexual minorities are protected under the Civil Rights Act, would lead to an expanded definition of the ERA, including a Constitutional right for transgender people to participate in sports leagues that do not match their sex.
“Intersex and transgender people’s participation in athletics, particularly transgender women on women’s teams, has become a recent topic of debate and subject of litigation,” Ms. Hogan writes. “The Bostock interpretation of the ERA would ensure that under Title IX, among other rules concerning state-sponsored athletics, intersex and transgender people could participate consistent with their gender identity by prohibiting this form of discrimination on the basis of sex.”
Schlafly’s daughter, Anne Schlafly, told Bloomberg that publishing the ERA as the country’s 28th amendment to the Constitution would not only have dangerous effects for women, but would likely set up a legal battle that could tear the country apart.
“It would set up a constitutional crisis,” Ms. Schlafly, who is now chairwoman of the Eagle Forum, told Bloomberg. “There is no path forward to shoehorning it into the Constitution.”
She warned that the debate around transgender rights would add an additional complexity to the legal fights. “The most pressing issue right now is nobody knows how to define the word sex,” Ms. Schlafly said. “We don’t know how the ERA would be interpreted by judges.”
This post was originally published on here
