What the ERA’s autopsy reveals

Tragically, some Americans today fail to give our Founding Fathers the credit they are due.

The founders were a remarkable group of men. This is best evidenced by the fact our Constitution is now the oldest and longest-standing written and codified national constitution in force in the world. Passed in 1789, it included a Preamble, seven articles and 10 amendments – those amendments collectively known as the “Bill of Rights.” For 236 years, the Constitution has served us well, withstanding the test of time – at least until this year.

Despite the Constitution providing us during our entire history a legal framework within which to function as a republic, in the days before leaving the Oval Office, President Joe Biden did the unthinkable: He took action suggesting he has the authority to override the Constitution. Apparently, the seed for abusing his presidential power was planted in his head by Sen. Kirsten Gillibrand, D-N.Y., who pressed him to act before leaving office.

The abuse involves the Equal Rights Amendment (ERA) and criticism against President Donald Trump by Democrats claiming a memo written during his first administration blocks it from becoming our 28th Amendment. Trump did write such a memo, but criticism against him has largely failed to explain the legal basis for him doing so. Thus, an autopsy on the legislation is necessary.

The fire created by Trump’s ERA memo was rekindled last year, upon the two year anniversary of Virginia becoming the 38th state to approve the ERA. This was the exact number of states needed to make it the Constitution’s 28th Amendment. But, since the amendment still lacked the act of certification due to the memo, Rep. Jackie Speier, D-Calif., claiming it was the law of the land, stated:

“We’re not going to let a Trump-era memo stand in the way of the 28th Amendment to the Constitution, which finally guarantees protections against sex discrimination in our foundational document.”

Against this backdrop, Gillibrand called for Biden to take action memorializing equal rights for women before his departure. Specifically, she wanted Biden to “codify women’s freedom and equality without needing anything from a bitterly divided and broken Congress.” She rationalized this must be done as the incoming Trump administration threatens the future of gender equality.

In the wake of the Supreme Court of the United States overruling Roe v. Wade in 2022, eliminating the constitutional right to an abortion (leaving the issue up to the individual states to decide), Gillibrand wrote that there is a way for Biden to enshrine such women’s rights. He must direct the archivist of the United States to certify and publish the 1972 ERA, which states:

“Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”

With that background, let us now review why the ERA is legally a dead issue and, despite Speier’s claim, is not the law of the land.

The Equal Rights Amendment has been an issue of debate for over a century. First proposed to explicitly ban sex discrimination in 1923, Republicans became the first party to endorse it. Nonetheless, it would still take 32 more years to gain House and Senate approval before it was put out to be ratified by at least three-fourths (38) of the individual states, as Article V of the Constitution requires.

By the time the 1979 deadline for ratification of the 38 states, later extended to 1982, was reached, only 35 states had done so. Despite this, other states continued to debate ERA ratification, with Virginia becoming the 38th state in 2020. However, efforts to make it the 28th Amendment have failed due to legal challenges based on the 1982 deadline for ratification not being met prior to Virginia’s 2020 ratification.

An autopsy of the ERA shows it died for failing to obtain 38 states’ support until almost four decades after the congressional 1982 deadline had expired. Yet Gillibrand pressed Biden to certify it as the law of the land. Dutifully, days before leaving office, Biden falsely declared he had the unilateral authority to amend the Constitution and, as such, we now supposedly have 28 amendments – although, similar to Trump, he even failed to mandate its certification.

More than half a century has passed since the ERA was written in 1972. Its above wording creates a question today that was nonexistent when Congress wrote it for state ratification.

In 1972, it was safe to say Americans wholeheartedly agreed there were but two gender identities – male and female. However, a 2023 poll revealed that only 65% of Americans support the two-gender theory, with 34% claiming there are many more. We now have a member of the Supreme Court of the United States who, when asked during her nomination hearing to define what a “woman” is, failed to do so.

Because liberals choose to ignore the science immediately establishing one’s sex at birth, instead arguing that gender identity is open to an emotional spectrum with infinite possibilities – any one of which may be chosen post-birth – it makes the complexities of gender identity endless. Therefore, the question arises whether the ERA, as written in 1972, covers all gender possibilities claimed to exist today.

Deadlines exist for a purpose. Additionally, the mindset of 1972 is not the mindset today. Thus, the ERA process needs to be started over again to include a clear understanding of what gender possibilities are being protected and to impose a new deadline.

Interestingly, throughout the 1970s, conservative lawyer and activist Phyllis Schlafly led a campaign to stop ERA ratification, arguing it would lead to women serving in combat, same-sex marriages and gender-neutral bathrooms. Despite the Republican Party being first to endorse the ERA, it cooled to the idea of the proposal, leading to a stalemate among the states. While the amendment never met the 38-state approval mandate within the allotted time frame, ironically, all of Schlafly’s concerns manifested themselves independent of its adoption.

It should be abundantly clear the deadline for the amendment’s timely approval by 38 states was not met, and, as such, Biden had no authority to declare it is our 28th Amendment. In enforcing it, the deadline is not Trump’s mandate – it was one imposed by Congress in accordance with the Constitution.