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Here is the legal truth: The Equal Rights Amendment (“ERA”) was ratified on January 27, 2020, the date that Virginia, the last necessary state, ratified it, and it legally became the valid 28th Amendment to the U.S. Constitution immediately. (The U.S. Archivist has already certified the required 38 states’ ratifications.)
Any rescissions, from states that have purported to rescind their initial ratifications, are not constitutional or valid. The seven-year deadline in the ERA Resolving Clause (that is not included in the text of the ERA) is unconstitutional and void ab initio (from the beginning). Further, the only time restraint in the text of the ERA is for two years (not seven), as set forth in the ERA’s Section 3, that gave states and the federal government a two-year cushion to correct their discriminatory laws. Thus, the ERA became legally enforceable on January 27, 2022.
What does the 28th Amendment (the ERA) state?
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.
On July 13, 2023, Representative Cori Bush and Senator Kirsten Gillibrand submitted a Joint Resolution verifying that the ERA is fully ratified and effective, and that it can and must be published by the Archivist in the United States Constitution as the valid 28th Amendment.
We therefore call on all Congressional supporters of equal rights, for women and LGBTQ citizens, to write to President Biden demanding that he order the Archivist to publish the ERA immediately. A resolution in Congress is not necessary, because Biden does not need anything from Congress to do his Constitutional duty (Article II, §3) to “Take Care” to enforce 1 USC §106b, which gives the Archivist a procedural, mandatory legal duty to certify the states’ ratifications and to publish the ERA in the U.S. Constitution immediately.
Once the Archivist has certified and published the ERA, it is final. No court can undo it, due to the “Political Question” doctrine. Further, the question of the validity of the ERA is already protected from the Courts by the “Political Question” doctrine, due to the evidence gathered in the two ERA hearings (the October 21, 2021 House Oversight Committee Hearing and the February 28, 2023 Senate Judiciary Committee Hearing.)
Those in Congress should patriotically protect their constituents and our democracy from repeating the complacency and fatal tolerance of gradually increasing fascism in 1930’s Germany. Female and LGBTQ citizens are being hunted and tortured. OB- GYN doctors are either losing their jobs or risking imprisonment. Maternal mortality rates have shown a marked increase in states where abortion is strictly limited.
It is unacceptable for Congress and the Biden Administration to wait one more day to end this national trauma.
The ERA, written 100 years ago by suffragists Alice Paul and Crystal Eastman, was recently celebrated at the ERA Centennial Convention in Seneca Falls, New York, where the ERA was originally announced on July 21st, 1923. It was also the location where Elizabeth Cady Stanton convened the first women’s rights convention 175 years ago in 1848, as the first person to publicly call for women’s right to vote, and for women’s equal rights, in the United States.
The 2020 Biden/Harris Campaign’s Women’s Agenda stated they would work to enshrine women’s equality in the Constitution and agreed that the ERA had already been fully ratified. Yet, even as forty-seven million women voted them into office in 2020, Biden’s promise to women has not been kept. Although he issued an ERA statement on the day it became legally-effective, he did not acknowledge that. Instead, he kept deflecting responsibility onto Congress.
How many people will die before Biden fulfills his Constitutional DUTY to enforce 1 USC §106b by ordering the Archivist to publish the ERA? How many people will be so damaged by sepsis or other complications that they will lose the ability to ever become pregnant again? How much more damage will the GOP do to our national security by weaponizing Dobbs? It is immoral and dangerous to wait any longer.
Astonishingly, Biden also allowed his Department of Justice to continue Trump’s fight in two federal court cases for two years against women and against the ERA (the Equal Means Equal case and the last three states that ratified the ERA: Nevada, Illinois and Virginia). Both cases were trying to force the Archivist to publish the ERA — when all along Biden wore the proverbial ruby slippers. He had and still has the power and the duty to instruct the Archivist to publish the ERA!
Publication is important because it means the National Archives will produce a new Constitution containing the ERA, which puts our country, including the Supreme Court, on public notice (so it cannot be ignored) that the ERA is part of the Constitution, the strongest legal document in the United States.
The ERA was legally effective before the Dobbs decision came down from the Supreme Court on June 24, 2022. (The Dobbs oral arguments by Whole Women’s Health Organization (“the Clinic”), Dobbs, and Biden’s Solicitor General occurred on December 1, 2021.) Yet none of them, nor any other briefs in support of abortion rights, cited the ERA as legal grounds. With the ERA set to become legally effective on January 27, 2022, it was the only way the Clinic could win in this Supreme Court, because it was and still is a textual basis for the right to abortion and, by implication, for a fundamental right to reproductive choice, which Justice Alito erroneously wrote “did not exist” in Dobbs.
Tragically, almost all Dobbs briefs in support of abortion rights included arguments that would support making reproductive rights a fundamental right under the ERA – if only the lawyers had also provided the ERA as legal authority. Instead, the lawyers hinged their equality arguments on the Equal Protection Clause, which does not make women equal citizens. Only the ERA will do that!
On December 6, 2021, Ms.Rockey emailed and faxed the now Honorable Julie Rikelman (appointed to the First Circuit Court of Appeals about three months after Dobbs by President Biden), of the Center for Reproductive Rights (“CRR”), which represented the Clinic, urging CRR to file a Motion in Dobbs seeking permission to present the ERA as new legal authority. (Only their client had the right to ask to file a Supplemental Brief on the newly-effective ERA). The CRR shockingly failed to do so. Then, the day the Alito opinion leaked, on May 3, 2022, Ms. Rockey resent the December 6, 2021 packet.
Since CRR hadn’t filed anything, on May 16, 2022, Ms. Rockey and Ms. Collias, who are members of the Supreme Court Bar, tried a hail mary pass. They filed a Motion for Leave to file a Friend of the Court (amicus) brief on behalf of ERA-NC Alliance, in the Dobbs case, arguing that the ERA is the Constitutional textual basis that Justice Alito said did not exist. They also asked the Supreme Court to invite them to do so due to the extraordinary circumstances. Ms. Rockey also sent copies of the Motion to all attorneys of record, including Judge Rikelman and the Solicitor General, who was representing the Biden Administration.
The Biden Administration claims it supports women’s rights to control their own reproductive choices; however, President Biden knew in advance of the Dobbs decision, and after the Alito opinion was leaked on May 3, 2022, he could have prevented them from being decimated in Dobbs with an Executive Order or one phone call, telling the Archivist to publish the ERA. But he did not.
Other attorneys had communicated with Biden’s White House Counsel about the ERA before Dobbs. Ms.Rockey emailed the legal reasons Biden could publish the ERA, that Biden had a Constitutional DUTY to publish it, and that the ERA would protect reproductive rights (as well as many LGBTQ rights), to Biden’s White House Counsel. She pleaded with Biden to publish the ERA immediately to protect reproductive rights. Ms. Rockey also sent the email to two of Vice President Harris’ attorneys, and to four other top women in their administration on June 17, 2022.
Then,on June 22, 2022, Ms. Rockey wrote and faxed another letter to CRR, including ERA-NC Alliance’s Dobbs Motion, with legal reasoning CRR could use, along with the June 17, 2022 letter to the White House Counsel. The CRR could have forced the Supreme Court to confront the ERA’s textual basis to protect reproductive rights.
The failures of President Biden to publish the ERA before the Dobbs opinion and of the Center for Reproductive Rights to submit the ERA as legal authority in Dobbs resulted in the Supreme Court overturning Roe v. Wade. The Dobbs decision did much more than decimate reproductive rights. It obliterated the right to privacy, and arguably substantive due process, which is why Dobbs will likely be used to destroy many more rights, including LGBTQ rights.
President Biden continues to refuse to publish the ERA to stop this ‘Handmaids Hell’ allowing for a multitude of draconian and fascist anti-abortion state laws. As Biden did in the 2022 mid-terms, he is still using our FEAR to garner votes and to fundraise for Democrats — despite KNOWING the absolute chaos, devastation, grief, trauma, and death that will be caused without the ERA.
All protests supportive of LGBTQ rights MUST be directed to President Biden until he publishes the ERA. He was the first in the White House to publicly approve of gay marriage, which was highly consequential. Since Dobbs, hundreds of anti-LGBTQ laws have been enacted in the red states. So, while the Biden/HarrisAdministration states that it supports LGBTQ rights, gay marriage and intimate relationships will likely be outlawed in red states and ultimately in the Courts unless Biden publishes the ERA soon.
The Biden/Harris Administration also claims it supports Congress “codifying Roe” (creating a federal law) to protect reproductive rights and passing the federal “Equality Act” to protect LGBTQ rights, but those laws will be struck down as unconstitutional if Biden does not first publish the ERA. In light of the current Supreme Court, Congress must have a TEXTUAL Constitutional basis for all laws to be constitutionally valid.
Further, in his initial 2024 his campaign video, President Biden asks, do we want “more rights or fewer?” — while displaying protests for reproductive and LGBTQ rights. If they truly care about our rights, prove it NOW! Then Democrats can legitimately campaign on codifying Roe and passing the Equality Act!
We need thousands of people protesting, texting Biden at 302-404-0880 daily, and making #BidenPublishERA trend on social media with a link to this article, until Biden publishes the ERA. If you’re interested in joining an action, check out https://GenerationRatify.org and https://EqualMeansEqual.org. If you can only sign a petition, please sign this one: http://www.change.org/BidenPublishERA.
President Biden is the only person or entity that has the authority to order the Archivist, Colleen J. Shogan, to publish it, because he has a Constitutional duty (Article II, §3) to “Take Care” that 1 USC §106b is faithfully executed. During her Senate confirmation hearing, she said she would need an order to publish the ERA, but both the Trump and Biden Departments of Justice issued misleading Office of Legal Counsel Opinions stating there were still prerequisites for the Archivist to act. To be clear, there are none! Once she publishes, no court can undo the 28th Amendment.
President Biden should trust that the 85% of Americans who support abortion rights, the 85% of likely voters who support the Equal Rights Amendment, and the 71% of Americans who support gay marriage will be grateful after he has the archivist publish the ERA, and that we will work assiduously to re-elect him, because gratitude is stronger than fear.
We call on President Biden to correct course. Publishing the ERA will be the most historic Presidential action since the Emancipation Proclamation (President Lincoln’s executive order that ended slavery). President Biden will then be remembered for ensuring that American women are equal citizens, for the first time in our history, and for fortifying our democracy when it was in peril of being dismantled by fascism.
About the authors: Arlaine Rockey, Esq. and Gina Collias, Esq. are both NC Attorneys and ERA lawyers who sit on the National ERA Publication Task Force. They represented Amici Curiae in the Equal Means Equal federal ERA lawsuit and also tried to bring the ERA to the attention of the Supreme Court of the United States in the Dobbs case after the Alito leak, but they were unsuccessful, because only Whole Women’s Health Organization had the right to file a Motion for Leave to submit a Supplemental Brief on the newly-effective ERA, and their lawyers shockingly failed to do so after ample notice from Ms.Rockey. Ms. Rockey and Ms. Collias also submitted written testimony to the Senate Judiciary Committee on the ERA. Read more in Ms. Rockey’s ERA Legal Blog. Ms. Rockey is also the writer and Executive Producer of the first feature film about Elizabeth Cady Stanton, The First Suffragist, who led the first women’s rights movement for over fifty years with Susan B. Anthony. Ms. Collias was instrumental in getting the N.C. State Democratic Party to pass resolution 2.30 in June 2023, demanding that the Biden Administration publish the ERA.
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