Picture: Lady Justice also known as Themis and Justitia from Greek and Roman mythology
Flag: Represents the ERA with the suffragist colors and the stars for the 38 ratified states
Our Constitution
The Constitution of the United States is the document that defines how the federal government is structured and how it operates. Additionally, the Constitution includes important civil rights that are guaranteed to all citizens. The Constitution became effective on March 4, 1789. It has been amended 28 times, beginning on December 15,1791 with the first 10 amendments, also known as the Bill of Rights.
For an amendment to be added to the constitution it must meet two requirements outlined in Article V of the Constitution.
1. An amendment must be proposed by a two-thirds vote of both Houses of Congress, or, if two-thirds of the States request one, by a convention called for that purpose.
2. The amendment must then be ratified by three-fourths of the State legislatures (38), or three-fourths of conventions called in each State for ratification.
The United States National Archivist then follows the 1 USC 106b Statute passed by Congress which defines its ministerial duties that includes recording the date of ratification for each State. Once ratified by three-fourths of the States, the National Archivist enters the date into the National Register that serves as an announcement to the States and others that the Amendment has been added. An updated Constitution is then published by the National Archivist. The Archivist primary role is to direct the National Archives and Records Administration (NARA) – the nation’s record keeper.
On January 27, 2020, Virginia became the 38th State to ratify the Equal Rights Amendment (“ERA”) making it the 28th Amendment to the United States Constitution. With this amendment women gained the human right of equal protection of the law.
The Equal Rights Amendment
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.
The ERA gives Congress the power to legislate and requires the courts to enforce laws that lift women to equal citizenship with men. This is important in order to ensure that women are no longer subject to discriminatory laws, policies, or statutes. The ERA ensures United States laws embraces equality for everyone, thereby providing equal rights and protections to all human beings.
When the government chooses to discriminate against women on the basis of sex, the ERA demands that the analysis applied by the courts be the highest standard of judicial review, called “strict scrutiny”, which is currently applied to discrimination based on immutable characteristics like race and national origin. Using a strict scrutiny analysis, the government must show that sex discrimination is narrowly tailored to achieve a compelling government interest, and the government is using the least restrictive means available. Without strict scrutiny, far more discrimination against women is legally allowed. With the ERA in the federal Constitution cases involving sexual harassment, unequal pay, and/or other issues discrimination based on sex can be challenged with a higher probability of success.
Herstory about the ERA
It’s been a long road for women’s equality in the world’s oldest continuous democracy. When America began, single women were legally considered chattel, owned by their fathers, brothers, and sons, and married women were considered legally merged with their husbands. This remained the case for most of the United States’ history.
After the Civil War, the 13th, 14th, and 15th Amendments were added to the Constitution. The 13th Amendment ended slavery unless convicted of a crime, the 14th Amendment established equal protection of the law for all citizens, and the 15th Amendment, created the right to vote for former enslaved males. The 14th amendment explicitly named “males” as having voting rights, and the 15th amendment excluded voter discrimination based on sex, though suffragists had fought hard for its inclusion.
After Reconstruction, women developed a two-prong strategy to remedy their exclusion from the Constitution, get the vote, and get equal protection of the law. Though women got the vote in 1920, when the 19th Amendment was added, women of color faced barriers, especially in the Jim Crow South, and were not actually able to exercise their right to vote until 1965 with the passage of the Voting Rights Act.
The first iteration of the Equal Rights Amendment, written by Alice Paul and Crystal Eastman, was proposed to Congress in 1923, three years after the 19th Amendment giving women the right to vote. The ERA was named the Lucretia Mott Amendment after another prominent suffragist. After almost 50 years, an updated ERA was passed by the House on October 12, 1971 and Senate on March 22, 1972. State ratification began in 1972 through 2020. It took almost a century to meet the Constitutional requirements for an Amendment ensuring equal rights based on sex to be added to the Constitution.
When passed by Congress, a 7-year time limit was added to the preamble of the Amendment, which Congress extended for 3 more years. When that time limit expired, 35 of the required 38 states had ratified. At first women were disheartened, however, following the ratification of the 27th Amendment after over 202 years, women rallied. In fact, the 27th Amendment about Congressional pay raises was proposed with the original 10 amendments but was not ratified by the states until 1992. The National Archivist, Don Wilson, certified and published the Amendment without any judgments or involvement of others. He stated, “If I didn’t publish the 27th (Amendment) then I would be playing a role not delegated to me. The biggest factor for me was the fact that I shouldn’t interfere and needed to follow the statutory process.” Wilson was scolded by a member of Congress for certifying the amendment without congressional approval. According to Article V in the Constitution, Congress’ role is only the first step of the process. Historically, Congress passes a ceremonial affirming resolution after ratification of an Amendment.
Proponents of the ERA reached out to the then current National Archivist, David Ferriero, to confirm that he would certify and publish the 28th Amendment if the additional 3 states needed were ratified. This was confirmed in writing by the Archivist. Advocates, led by Equal Means Equal, then adopted a 3-state strategy arguing the time limit put in the preamble of the Amendment not in the text that the States ratified, like the 18th and 21st Amendments, is not constitutional and began again to press for ratification in the remaining states. Nevada ratified the Equal Rights Amendment in March 2017. Illinois ratified in May 2018. Then on January 27, 2020, Virginia became the 38th State to ratify the ERA, making it the 28th Amendment to the United States Constitution.
There are only two requirements to amend the United States Constitution in Article V – that Congress pass the proposed amendment by a two-thirds vote, and that three-fourths of the states ratify the amendment. The Equal Rights Amendment met these requirements to become the 28th Amendment to the United States Constitution. This has also been affirmed by the American Bar Association and the American Constitution Society. There is nothing in Article V about time limits or rescissions as some states purport.
The Equal Rights Amendment is the only Constitutional amendment which has met the requirements in Article V, but to date has not yet been published.
President Trump through his Attorney General, William Barr, inserted himself in the constitutional amendment process by stopping the Archivist, David Ferriero, from completing the certification of Virginia’s ratification. He did this by issuing an Office of Legal Council (OLC) memo, which is nonbinding. In a press release, Archivist Ferriero summarized the conclusion from the Office of Legal Counsel (OLC) “Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the States … [and] the ERA’s adoption could not be certified.” The memorandum also stated that once Congress proposes an amendment to the states, it has no further role in the ratification process and therefore lacks authority to modify the original deadline.
It is the role of the Courts to determine the ERA’s validity if someone chooses to challenge the amendment. Historically, those who oppose any Amendment had to argue their case with the burden on them.
President Joe Biden’s Administration, once in office, called on Congress to act swiftly which prompted two Congressional resolutions. One to remove the ERA time limit and the other to affirm that the ERA was the 28th Amendment. During the next four years, Congress was unable to pass either resolution.
In 2021, the Department of Justice under Attorney General Merrick Garland fought against the ERA in two federal lawsuits. On January 26, 2022, the Department of Justice issued an OLC opinion that did not withdraw the 2020 memorandum’s conclusion concerning the ERA time limit but said there was no obstacle to Congress’s ability to act with respect to the ERA’s ratification or to judicial consideration of questions regarding the constitutional status of the amendment.
Some ERA Advocates focused only on passage of the resolutions while other advocates used a pressure campaign pushing President Biden to instruct the Archivist to publish the ERA before he left office. The pressure included letters, phone calls, texts, emails, social media posts, petitions, press conferences, and outreach to anyone that could influence the President including his sister. Letters were sent to the President from 46 Senators, 122 House members, 143 diverse organizations (led by Shattering Glass and the League of Women Voters), 100s of women leaders of the Labor Movement, 60 faith-based organizations (led by the National Council of Jewish Women), National Association of Women Lawyers and Women Lawyers on Guard, Women’s Bar Association of DC, along with the New Hampshire and Ohio State Legislators. The following organizations made public statements: the Reproductive Health Coalition (led by American Medical Women’s Association and Doctors for America), North Carolina Association of Women Lawyers, New York City Bar Association, American College of Obstetricians and Gynecologists and other leading fertility and OB/GYN associations. On August 6, 2024 a Resolution and Report from the American Bar Association urged immediate publication/implementation warning that without the ERA, the 14th Amendment sex-based equal protection is “in grave peril.”
In addition, on December 13, 2024, the United Nations Special Rapporteur on Violence Against Women sent President Biden a letter and urged him to direct the Federal Archivist to publish the Equal Rights Amendment to the Constitution immediately. She stated, “Your role is to fulfill your Article II, Section 3 duty under the “Take Care” Clause, to ensure that laws are faithfully executed. This duty is mandatory. By directing the Archivist to certify the last state that ratified in 2020 and publish the ERA, you will be allowing the Constitutional process to continue and be able to inform the UN that the United States has finally met its obligation.” She reminded him that the United States of America is required to adopt a constitutional sex equality amendment that “guarantee protections against sex- and gender-based discrimination in its Constitution, including through initiatives such as the Equal Rights Amendment. She requested that he answer three critical questions. It is unknown if he ever responded.
Equal Means Equal (EME) orchestrated mass protests in DC and across the country to pressure President Biden to publish the ERA. On January 10th at the National Archives in Washington DC, EME in partnership with Vote Equality US conducted a final direct action that resulted in over thirty people being detained and 6 arrested. Dressed in construction worker safety gear activists replaced the building’s center banner with one calling out President Biden directly: “Publish the ERA, Hero or Zero,” This banner, along with two others, were confiscated by police. Additional activists arrived dressed as women from the science-fiction Dune holding a banner announcing SISTERHOOD ABOVE ALL. The National Archivist then issued a statement on the National Archives website stating an act of Congress or a court order is now required before publication. Never in the history of constitutional amendments has an Archivist made judgements or dictated requirements outside their ministerial role in the process as defined in the 1 USC 106b Statute. Subsequently, the New York Bar Association issued a rebuke of this statement by the National Archivist’s inappropriate presumption of this authority.
Due to the pressure campaign and direct action, on January 17, 2025, President Biden issued this statement affirming that the Equal Rights Amendment (“ERA”) is the 28th Amendment to the United States Constitution: “In keeping with my oath and duty to Constitution and country, 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.” Those who publicly supported the Presidents’ affirming statement included Laurence H. Tribe (a Carl M. Loeb University Professor of Constitutional Law Emeritus at Harvard University), Kathleen M. Sullivan (former Dean of Stanford Law School and professor of law at Harvard and Stanford), and Russ Feingold (President of the American Constitution Society).
It is important to note that Presidents have no authority to declare the validity of amendments. That is up to the courts.
President Trump’s Administration, once back in office, dismissed the National Archivist, Colleen Shogan, on February 7, 2025. Then, several senior staffers quit or retired. Other staffers at the agency accepted government-offered deferred resignations or were fired because of their probationary status. Since February 16, 2025, Marco Rubio, newly appointed Secretary of State, became the acting National Archivist. Prior to the National Archives and Records Administration (NARA) becoming a nonpartisan independent agency, the duty was vested in the General Services Administration, and, before the establishment of that agency in 1949, it formed part of the duties of the United States Secretary of State. The position of National Archivist was created in 1934 by Congress.
There are a number of process irregularities in the way this particular amendment has been handled:
1. Although the constitutional process only has two requirements to be added to the Constitution, Congress added a time limit which essentially modifies the constitutional process which does not require one to be set.
2. An Attorney General inserted himself in the ratification process that made a judgement about the time limit when he has no role in the process.
3. An Archivist whose role is ministerial presumed to expand their authority by declaring that additional requirements must be met before publication. Ministerial duties have also been inconsistently executed.
4. And finally, a President who could have used his Article II, Section 3 duty under the “Take Care” Clause to order publication of the ERA, thereby ensuring that laws are faithfully executed, decided instead to issue an affirming statement.
These irregularities are all arguably unconstitutional as changes to the constitutional process require changes to the Constitution itself. As this amendment is about sex discrimination which uniquely affects women, the pattern of obstruction throughout the constitutional process reveals what we believe to be an intentional effort to keep women in second-class citizenship and an attempt to obfuscate this intent. The failure of the Biden Administration to see that the Equal Rights Amendment was published is particularly galling given his campaign promises of being pro-ERA and pro-women’s rights, and the fact that he and Harris were aware that it could have protected Roe from being overturned.
Regardless of whether the National Archivist, Coleen Shogun, performed the appropriate ministerial duties or not, the Equal Rights Amendment met the two requirements to be added to the Constitution and is the 28th Amendment to the Constitution and enforceable. According to the DC District Court of Appeals, it dismissed Illinois v. Ferriero in 2021 on grounds that the litigating states did not have standing to claim harm from the Archivist’s failure to publish because the Archivist’s actions have no effect on the ERA’s legal status.
Women were first challenged to get the right to vote without having that Constitutional right, and again with the Equal Rights Amendment that would provide a means to challenge sex discrimination, women have had to deal with barriers being purposely put in place to discourage or stop its passage, ratification, and publication. In both the 19th and the 28th Amendments, women have persevered against all odds through five generations and will continue to be vigilant about their rights. While we understand that the ERA remains formally unpublished by the National Archives, and that only the courts can validate any amendment, we nevertheless feel it is important that it be acknowledged as having met the Constitutional requirements to be added to the U.S. Constitution. Therefore, we are posting a link to the Unabridged U.S. Constitution that includes the 28th amendment. This version is in commemoration of the ratification of The Equal Rights Amendment in 2020, and is being provided by an informal group of women’s rights advocates carrying on the work of their foremothers that started over a century ago.
Thomas Jefferson wrote, “I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered, and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”
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