New Legal Landscape: Biden’s Bold Declaration on the Equal Rights Amendment

Introduction

“Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

On March 15, 2022, President Joe Biden took a historic step by signing an executive order directing the Justice Department to review and consider actions to advance the Equal Rights Amendment (ERA), a proposed amendment to the U.S. Constitution that would guarantee equal rights for all Americans regardless of gender. This move has ignited a surge of excitement among advocates for gender equality, while also raising questions about the legal complexities and potential implications of such an undertaking.

Biden’s Executive Order: A Call for Action

President Biden’s executive order emphasizes the importance of ensuring equal rights for women and girls, underscoring that gender discrimination persists in various forms. He directed the Justice Department to explore all legal options, including litigation, to address matters related to the ERA’s ratification.

Legal Basis for the ERA

The Equal Rights Amendment was first proposed in 1923, and its text has remained unchanged since it passed the U.S. Congress in 1972. The amendment requires ratification by at least 38 states to become part of the Constitution.

As of 2023, 38 states have ratified the ERA, including Virginia, which became the pivotal 38th state to do so in 2020. However, five states later rescinded their ratifications, raising legal questions about the amendment’s validity.

Legal Complexities and Controversies

The effort to implement the ERA faces several legal hurdles. Critics argue that the five states that rescinded their ratifications cannot reverse their actions, rendering the amendment invalid. Others contend that the ERA’s time limit for ratification has expired, making it obsolete.

Constitutional Arguments

Proponents of the ERA argue that the language of the amendment is clear and unambiguous, and that the rescissions of the five states are legally invalid. They point to Article V of the Constitution, which states that amendments can only be repealed by subsequent amendments. Since no such repeal amendment has been passed, the ERA remains valid and should be enshrined in the Constitution.

Opponents, on the other hand, maintain that the rescissions are binding and that the ERA’s ratification process has been compromised. They argue that states have the right to withdraw their consent to an amendment before it becomes part of the Constitution.

Time Limits and Ratification Procedures

The ERA was originally given a seven-year time limit for ratification, which expired in 1982. However, Congress extended the deadline to 1992 in 1984. Critics argue that the extension was unconstitutional and that the ERA is no longer valid.

Proponents counter that the time limit was merely a suggestion, not a mandatory deadline. They argue that as long as at least 38 states have ratified the amendment, it can become part of the Constitution.

Political and Social Implications

The ERA has been a subject of intense political and social debate for decades. Supporters believe that it is essential for achieving gender equality and protecting women’s rights. They point to the ongoing disparities in pay, access to healthcare, and representation in government and the workplace as evidence of the need for the amendment.

Opponents, on the other hand, argue that the ERA is unnecessary and may lead to unintended consequences. They contend that existing laws and Supreme Court rulings already provide sufficient protections against gender discrimination.

International Perspectives

The United States is one of the few developed nations that does not have a constitutional guarantee of equal rights for women. Many other countries, including Canada, the United Kingdom, and France, have incorporated such guarantees into their constitutions or legal frameworks.

The ratification of the ERA would bring the United States in line with international standards and demonstrate its commitment to gender equality. It would also send a strong message to the world that the United States values the rights of women and girls.

Conclusion

President Biden’s executive order on the Equal Rights Amendment has reignited a long-standing debate about gender equality and the future of the U.S. Constitution. The legal complexities and controversies surrounding the amendment will likely continue to be debated in the courts and in the public sphere.

However, the broader implications of the ERA are clear: it would be a transformative step towards achieving full equality for women and girls in the United States. By enshrining the principle of equal rights for all in the highest law of the land, the ERA would strengthen the foundations of a just and equitable society for generations to come.