Sen. Kirsten Gillibrand's campaign pays off, as President Joe Biden says ERA is now in effect

WASHINGTON — New York Sen. Kirsten Gillibrand celebrated the success of her yearlong campaign as President Joe Biden declared Friday that the Equal Rights Amendment has been lawfully ratified and now is the law of the land.

Biden issued the declaration just three days before he relinquishes the presidency to Republican Donald Trump and without ordering the National Archivist to publish the amendment, inviting a flurry of legal challenges.

"In keeping with my oath and duty to Constitution and country," Biden said in a statement, "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."

Gillibrand, a Democrat in her third full term, thanked Biden for his declaration and insisted that the president’s action had made the ERA a constitutional amendment, with notices sent out to all of the states in the country. 

"Today is a historic day for women and girls who face discrimination on the basis of sex. After over 100 years of fighting, we have finally crossed the finish line," she said. "We have finally enshrined equality for women into the United States Constitution."

Years of debate

The House and Senate approved the ERA in 1972 and set a seven-year deadline for ratification by the required 38 states and extended it to 1982, when just 35 states had ratified it. Since then, three more states ratified — Virginia became the 38th in 2020.

National Archivist Colleen Shogan, charged with publishing constitutional amendments, has refused to publish the ERA and cites court rulings and Trump-era Justice Department opinions that the ERA failed to get enough state ratifications by its 1982 deadline.

Gillibrand urged supporters of the ERA to enforce Biden’s declaration through the courts.

"There will be many lawsuits filed, and I am calling on plaintiffs across America who have been harmed by the lack of an Equal Rights Amendment to file a lawsuit in all jurisdictions," Gillibrand said at a Capitol Hill news conference.

Gillibrand and other supporters of women’s rights said the ERA could counter the effects of the Supreme Court’s 2022 ruling in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade’s establishment of a constitutional right to abortion.

"I think anyone whose privacy rights have been denied under Dobbs or any other law, anyone who has been discriminated against on the basis of sex, they should all be filing lawsuits to have their rights restored," she said.

Legal questions

Some legal scholars questioned whether Biden’s action actually added the ERA to the U.S. Constitution.

"Like Biden, I support the ERA and want it to be part of the Constitution. But his statement that it has been properly ratified is at odds with relevant court decisions, and is almost certainly wrong," George Mason University Law Professor Ilya Somin wrote on Reason magazine’s website Friday.

Gillibrand pointed to an American Bar Association opinion that she said found issues relevant in the debate over the legitimacy of the ERA ratification "are not impediments" to the ERA becoming an amendment.

The ABA report said the deadline imposed by Congress is not valid, she said. "Article Five [of the Constitution] does not require or allow for states to set a timeline. They didn't set it in the amendment itself," she said. Somin cited two judicial decisions upholding the deadlines.

That report also stated that rescissions by state ratifications are invalid and unconstitutional, Gillibrand said, and that the amendment does not need to be published by the archivist because Biden has now published it himself.

In the past year, Gillibrand has pressed the White House to act on the ERA, made direct appeals to Biden, led a letter signed by 45 senators urging Biden to act, held meetings with his top aides, made media appearances and filed a bill to require the archivist to certify the amendment.

Asked what she thought about the possibility that Trump might rescind Biden’s declaration on the ERA, she paused, then said, "Trump decided in his first hours of the presidency to tell America's women and girls that they are not equal under the law and the Constitution? God bless him."