U.S. Senators Tim Kaine and Mark Warner of Virginia are among a group of 46 U.S. senators who sent a letter to President Joe Biden on Nov. 22 asking that he immediately direct the nation’s archivist to certify and publish the Equal Rights Amendment (ERA) in the U.S. Constitution. Click here to read a PDF of the letter.

The letter is part of a nationwide effort on multiple fronts to get the ERA published before Biden leaves office. Approved by Congress in 1972 during the administration of former U.S. President Richard M. Nixon, the proposed amendment was initially ratified by 35 states. Virginia became the 38th state to meet the three-fourths ratification requirement in January 2020. Petitions from various groups are circulating online calling for the ERA to be published and in-person lobbying efforts are intensifying in Washington, D.C.

A Zoom town hall meeting is scheduled from 7 to 8 p.m. on Tuesday, Dec. 3 hosted by Sen. Kirsten Gillibrand, D-N.Y., to let Biden and other elected officials know about the urgency of publishing the ERA in the Constitution before the end of Biden’s term. To RSVP to join the Zoom meeting, follow this link.

Kati Hornung, who helped lead Virginia’s successful grassroots effort to become the 38th state to ratify, says that “President Biden campaigned on fixing our constitutional gender equality gap and his campaign even requested to speak at a VAratifyERA event in 2019. He is running out of time to tell the national archivist, Colleen Shogun, to do her job; 170 million women and girls have been waiting 101 years for this amendment to be added and with the increased threats to our LGBTQIA+ family and friends, there is no excuse for leaving us all unprotected.”

Hornung adds that she is grateful that the senators have weighed in and notes that their effort is part of a national Biden Publish ERA Alliance consisting of more than 20 non-partisan advocacy organizations representing millions of members pushing Biden to direct the archivist to publish the ERA before the end of his administration. Some of the groups pushing for publication include the League of Women Voters, the American Bar Association, the American Constitution Society and the ERA Coalition. The ERA Coalition is composed of 300-plus organizations representing more than 80 million people from a variety of gender, racial, economic, reproductive rights justice and various LGBTQIA groups and medical associations affirming the importance of equal rights and medical care for all people.

A tangle of legal challenges

Despite the requirements for ratification of the ERA amendment being satisfied, a legal opinion from former President Donald Trump’s Office of Legal Counsel (OLC) blocked certification and publication claiming that the ERA effort failed to meet the deadline in the amendment’s proposing clause and thus, all ratifications from the states were invalidated.

The issue of the validity of the deadline has been at the heart of a tangle of legal challenges from various conservative groups over the years with no clear adjudication. Most recently, however, the American Bar Association, with a membership of 400,000 lawyers, passed a resolution on Aug. 6 acknowledging the ERA as the 28th Amendment to the Constitution and called for its immediate publication and implementation.

The recent letter from the senators, many of whom are lawyers, contends that the “Constitution does not impose a time limit for ratification of a proposed amendment, nor does it give Congress the power to do so.” To bolster their argument, the letter points out that the 27th Amendment was ratified in 1992, 203 years after it was initially proposed to the states. The archivist at the time, Don Wilson, published the amendment upon its ultimate ratification by three-fourths of the states, despite some outstanding congressional objections.

Of his decision to certify and publish the 27th Amendment without further congressional action, the letter quotes Wilson saying:

“I feel pretty strongly this is a ministerial function, a function given to the archivist to certify and publish once three-quarters of the states ratified. It is a bureaucratic issue, not a political one. And if I don’t certify and there are 38 states that have ratified, then I’m interpreting the Constitution beyond the ministerial function given to me by Congress, and I didn’t feel it was appropriate for me to do that. 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.”

Furthermore, the letter notes that “Article V does not allow for rescissions of ratifications. For example, when New Jersey and Ohio tried to withdraw their ratifications of the 14th Amendment, they were still counted as ratifying states. Similarly, Tennessee’s attempt to rescind its ratification of the 19th Amendment was disregarded, and the amendment was published.

Having been proposed by two-thirds of each House of Congress and ratified by three-fourths of the states, the ERA has met the requirements of the Constitution under Article V. It is enforceable as the 28th Amendment to the Constitution and it must be published. At present, we strongly believe there is no further role for Congress.”

The letter ends noting that “once the ERA is published, it will be presumed valid, and the burden of proof will be on the opponents of equality to prove otherwise. That is exactly as it should be and has been for the previous 27 constitutional amendments. That is what the American people demand and deserve.”