Today, Senator Kirsten Gillibrand (D-NY), alongside Congresswoman Cori Bush (D-MO), introduced the ERA Now resolution, which directs the Archivist of the United States, Colleen Shogan, to affirm the ERA as the 28th Amendment of the United States Constitution, certify the state ratifications, and publish it in the Federal Register. The resolution utilizes a novel legal theory that determines that since the deadline in the ERA is in the preamble, rather than the text of the amendment, it is nonbinding. This theory finds that the ERA has met the requirements needed to amend the Constitution: passage by more than two-thirds of Congress in 1972 and ratification by three-quarters of the states. In 2020, Virginia became the 38th and final state needed to fulfill the ratification requirement; however, the ERA is currently waiting on the Archivist to perform her ministerial duty to finalize the amendment.
The ERA is an amendment to the U.S. Constitution that enshrines gender equality as a constitutional right. Its main clause 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.” This amendment is crucial to eliminating discrimination on the basis of sex across our country – and its finalization in the U.S. Constitution will usher in new and necessary protections for all people across our country, including women who are being denied full reproductive care options.
This resolution would firmly settle remaining constitutional questions regarding the ERA’s ratification and would instruct the Archivist of the U.S. to proceed with publishing and certifying it. This resolution is a dual strategy working in concert with Senator Ben Cardin (D-MD) and Congresswoman Ayana Pressley’s (D-MA) deadline-elimination resolution, which passed the House in the 117th Congress but failed to withstand the filibuster in the Senate earlier this year.
“As women’s rights are under systematic attack around the country, we need the Equal Rights Amendment now more than ever,” said Senator Gillibrand. “Today, more than half of all Americans do not have equal protection under the law and do not have access to the full range of reproductive care. The ERA Now resolution will make sure our hard-won civil liberties – gay marriage, the right to reproductive health care, access to birth control, fertility treatments, contraception – cannot be eroded. I’m proud to be building on the legacy of thousands of women who have fought for equal protection under the law and, 100 years after it was first introduced, introducing legislation to finally codify the ERA as the 28th Amendment to the Constitution.”
“In exactly one month from now, the fight for the Equal Rights Amendment will be 100 years old. The ERA is the path that brings our entire country toward true gender equity, and all that is standing in the way of this necessary change is paperwork,” said Congresswoman Bush. “I am proud to be joined by Senator Gillibrand and several of my ERA Caucus colleagues in introducing this important resolution. We are urging the Archivist to fulfill her ministerial duty by certifying and publishing the ERA as the 28th amendment. This simple, 24-word amendment is packed with the potential to protect access to abortion care nationwide, defeat bans on gender-affirming healthcare, shore up marriage equality, eliminate the gender wage gap, help end the epidemic of violence against women and girls, and so much more. With the flick of a pen, we can cement constitutional gender equality as the law of the land, and today we are coming together to say we refuse to wait a moment longer to guarantee this fundamental right.”
This resolution has the endorsements of nearly 300 organizations nationwide, including Advocates for Youth, Asian American Women’s Political Initiative, Catholics for Choice, End Rape on Campus, ERA Coalition, Feminist Front, Gen-Z for Change, GLSEN, In Our Own Voice: Black Women’s Reproductive Justice Agenda, Justice Revival, March for Our Lives, Muslims for Progressive Values, National Center for Lesbian Rights, National Council of Jewish Women, National Organization for Women, PROMO Missouri, SIECUS, Sojourners, Sunrise Movement, Supermajority, the TransLatin@ Coalition, Shattering Glass and the National ERA Publication Task Force.