If Biden Successfully Enacts the Equal Rights Amendment, What Happens Next?
The Equal Rights Amendment (ERA), a proposed constitutional amendment that would prohibit discrimination based on sex, is facing significant legal and political hurdles as President Joe Biden considers certifying and publishing it as the 28th Amendment.
- Legal Disputes and Ratification Deadlines
The ERA's original ratification deadline, set in the 1970s, has expired, and some states that initially ratified it have since rescinded their ratifications. This creates legal uncertainty about whether the ERA has met the constitutional requirement of ratification by three-fourths of the states. The federal courts are currently blocking enforcement actions related to the ERA, reflecting ongoing judicial challenges.
- Judicial Interventions and Injunctions
A federal judge recently blocked enforcement of the ERA as certified by Biden, highlighting the contested nature of the administration’s move to officially publish the ERA. This judicial pushback underscores that the ERA’s adoption remains unresolved in the courts despite executive declarations.
- Political Opposition and State-Level Challenges
Beyond the federal level, states like Ohio have ongoing processes to amend their own constitutions for equal rights protections, with political bodies sometimes complicating efforts. For example, Ohio’s Ballot Board increased signature requirements for a related equal rights amendment including protections against discrimination and marriage equality, reflecting political hurdles at the state level and signaling broader resistance in certain jurisdictions.
- Issues of Enforceability and Constitutionality
Even where amendments or petitions progress, officials caution that certification or ballot acceptance should not be taken as an endorsement of the proposal’s enforceability or constitutionality, indicating ongoing debates about the ERA’s legal status.
- Activist and Legal Advocacy Efforts
Feminist and legal advocacy groups continue pursuing litigation and public education to pressure the federal government to finalize registration and to address uncertainties. Efforts include strategic litigation and discussions on implementation, signifying that activist pressure remains a key part of the political struggle.
President Joe Biden can instruct the Archivist of the United States to certify and publish the ERA as the 28th Amendment. However, critics argue that even if Biden were to issue a directive, it might be disregarded due to legal constraints. A coalition of over 120 House Democrats and 46 Senate Democrats have urged President Biden to direct the National Archivist to certify and publish the Equal Rights Amendment.
If certified and published, the ERA could mark a historic victory for advocates of gender equality and address urgent issues related to gender equality and reproductive rights. The passage of the ERA could empower legal challenges against laws imposing undue burdens on women's access to abortion. Approximately 61% of likely voters favor President Biden's involvement in adopting the Equal Rights Amendment.
As time progresses toward January 2025, it remains crucial to monitor whether President Biden will seize this opportunity or allow it to slip away amidst ongoing legal uncertainties surrounding the ERA. National Archivist Colleen Shogan has indicated that she cannot certify the ERA without further action from Congress or a court ruling to lift the ratification deadline established in 1979.
References: [1] Ohio Attorney General’s certification letter [2] Federal court blocks enforcement of ERA [3] Ohio Ballot Board increases signature requirements for equal rights amendment [4] Feminist and legal advocacy groups continue efforts to finalize ERA registration [5] Political hurdles at the state level for equal rights amendments
- Health-and-Wellness and Reproductive Rights
The Equal Rights Amendment, if certified and published, could empower legal challenges against laws imposing undue burdens on women's access to abortion, potentially enhancing womens-health and reproductive rights.
- Policy and Legislation
Critics argue that even if President Biden were to issue a directive to certify and publish the ERA, it might be disregarded due to legal constraints, highlighting the importance of policy-and-legislation in addressing gender discrimination.
- General News and Public Opinion
President Joe Biden's involvement in adopting the Equal Rights Amendment is urgently desired by approximately 61% of likely voters, putting the topic of gender equality and the ERA in the spotlight of general-news discussions.
