The Equal Rights Amendment should be a part of the American Constitution, according to retiring President Joe Biden.
In order to continue his legacy despite only serving a single term in office, Biden sought to cement his legacy with his latest statement and action from the executive branch on Friday.
Biden firmly backed the proposed amendment, which states that equality under the law cannot be denied “on account of sex,” in a press release.
Despite persistent legal ambiguities, he added, it should be regarded as the supreme law of the land.
According to Biden, “I have long supported the Equal Rights Amendment and have made it clear that no one should face prejudice because of their sex.”
“We, as a nation, must affirm and protect women’s full equality once and for all”.
Legal ambiguity
Nowhere in the document makes sex or gender explicit, despite the US Constitution’s promise to “equal protection of the laws” for all citizens.
According to some scholars and activists, the Equal Rights Amendment is necessary to stop judges from deeming sex or gender-based discrimination to be against the law’s requirements.
The late Supreme Court Justice Antonin Scalia, for instance, was among those who believed the Constitution’s protections did not extend to sex or gender.
In 2011, Scalia told the publication California Lawyer, “You do not need the Constitution to reflect the desires of the current society.” “Sincerely, discrimination based on sex is not permitted by the Constitution.” The only issue is whether it is prohibited. It doesn’t”.
More recently, in 2022, Justice Clarence Thomas published an opinion that the Supreme Court “should reconsider” cases that established the right to same-sex marriage and contraception, on the basis that they may not fall under constitutional protections.
He called those precedents “demonstrably erroneous decisions”.
Rocky road to ratification
Biden’s statement on Friday may help the Equal Rights Amendments pass the final test to be regarded as established law.
The development of the amendment has taken a long time. Beginning in 1923, lawmakers tried to pass amendments repeatedly, but the US Congress was largely opposed.
But as the 20th century progressed, the composition of Congress started to shift, with more female and minority politicians joining the largely white, male legislature.
The Equal Rights Amendment was once again introduced by Democrat Martha Griffiths in the House of Representatives in 1971, and it was approved by the required two-thirds of the vote. The Senate reintroduced the bill and, as usual, gave it overwhelming support the following year.
However, the federal and state levels must all agree that the US Constitution needs to be amended. Three-fourths of state legislatures also needed to ratify the amendment.
The Equal Rights Amendment stumbled in that area. By that point, only 35 states had ratified the amendment, which Congress had allowed for seven years. A total of 38 states, out of 50, were needed.
No other state was successful in ratifying the amendment even though Congress extended the deadline to 1982. The Equal Rights Amendment was viewed as largely ineffective.
A renewed push
However, the amendment’s popularity has rekindled with recent concerns about the threat to LGBTQ rights and abortion access. Legal organizations, including the American Bar Association, have questioned whether a deadline was actually established in the first place.
And states began considering ratifying the law once more. Nevada approving of it in 2017. Then Illinois in 2018. Virginia became the state of record 38th to ratify it in 2020.
According to Biden, the Equal Rights Amendment became the rule of law as a result of action.
According to him, “I firmly believe that the 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex,” he said in his statement on Friday.
The Equal Rights Amendment’s legal status is, however, ambiguous. Some states have taken action to revoke their initial ratification, including Kentucky and Nebraska.
The US national archivist has also declined to certify the amendment, citing the long-expired deadline.
Ultimately, Biden, as president, has no direct authority to force the adoption of the amendment. Even so, the long-standing supporters of the constitutional change have reacted with applause for his high-profile gesture of support.
Senator Kirsten Gillibrand of New York, for instance, praised Biden’s decision on social media.
She wrote, referring to President-elect Donald Trump’s policies, “This is an incredible moment for reproductive freedom and a historic day for equality,” noting that Americans are already facing further degradation of reproductive freedom as the incoming administration ascends.
Trump’s election of three conservative justices to the Supreme Court, which would enable the landmark decision to overturn the federal right to an abortion in 2022. On Monday, Trump will run for second term.
Gillibrand suggested that the amendment’s passage, which would enshrine restrictions on access to abortion and other reproductive healthcare procedures, might not be interpreted as law.
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