Biden’s Dubious Declaration that the Equal Rights Amendment has Been Duly Ratified

Today President Biden declared that the Equal Rights Amendment, which states that “Equality of Rights under the law shall not be denied or abridged by the United States or any state on account of sex,” has been duly ratified and is now part of the Constitution. Like Biden, I support the ERA and want it to be part of the Constitution. But his statement that it has been properly ratified is at odds with relevant court decisions, and is almost certainly wrong. Here is Biden’s statement in full:

I have supported the Equal Rights Amendment for more than 50 years, and I have long been clear that no one should be discriminated against based on their sex. We, as a nation, must affirm and protect women’s full equality once and for all.

On January 27, 2020, the Commonwealth of Virginia became the 38th state to ratify the Equal Rights Amendment. The American Bar Association (ABA) has recognized that the Equal Rights Amendment has cleared all necessary hurdles to be formally added to the Constitution as the 28th Amendment. I agree with the ABA and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution.

It is long past time to recognize the will of the American people. 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.

For reasons laid out in a 2007 article on the subject, I too support the ERA. Some of the points I made in 2007 are now moot. For example, the ERA is no longer needed to ensure a right to same-sex marriage, because the Supreme Court ruled in favor of such a right on other grounds in Obergefell v. Hodges (2015). Similarly, the Pentagon has already opened up nearly all combat positions in the military to women, making that issue moot, as well (though enactment of the ERA could pr

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