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"It is long past time to recognize the will of the American people," said the president.
More than half a century after the U.S. Congress passed the Equal Rights Amendment, President Joe Biden on Friday announced his administration's official opinion that the amendment is ratified and its protections against sex-based discrimination are enshrined in the U.S. Constitution.
The announcement has been long demanded by rights advocates including Democratic lawmakers who have recently called on Biden to affirm the ERA's ratification in order to protect reproductive rights that have been gutted by the Republican Party.
"It is long past time to recognize the will of the American people," said Biden. "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."
The statement came five years after Virginia became the 38th state to ratify the ERA. With that move, state lawmakers completed the requirement that three-fourths of U.S. states ratify the amendment.
According to the Brennan Center for Justice, ratification deadlines that were set by Congress after the ERA had passed by the time Virginia ratified the amendment, and five states have rescinded their approval.
But a senior White House official told CNN Friday that the president's decision was informed by the American Bar Association's opinion that "no time limit was included in the text of the Equal Rights Amendment."
"The Constitution's framers wisely avoided the chaos that would have resulted if states were able to take back the ratifying votes at any time," according to the legal association.
Former U.S. Rep. Cori Bush (D-Mo.), who in November called on Biden to take every action available to him in order to protect reproductive rights, including ensuring the ERA was recognized as part of the Constitution, called the president's announcement "an historic and consequential step."
"For over a century, we have fought for the principle that 'equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex,'" said Bush. "These 24 words must now be published and enshrined in our Constitution to provide a crucial safeguard against discrimination for women, LGBTQ+ folks, and all marginalized communities."
With Biden issuing his opinion, advocates have held that the archivist of the United States, Colleen Shogan, must now certify and publish the amendment.
In December, Shogan released a statement saying that in 2020 and 2022, "the U.S. Department of Justice affirmed that the ratification deadline established by Congress for the ERA is valid and enforceable" arguing that the ERA could not be certified.
The senior administration official told CNN that Shogan "is required to publish an amendment once it has been effectively ratified."
"It will be up to the courts to interpret this and their view of the Equal Rights Amendment," they added.
Kate Kelly, a human rights lawyer who wrote the book Ordinary Equality about the ERA, asserted the amendment has been part of the Constitution since it was ratified by Virginia in 2020.
"The Archivist has no constitutional or legal role in the amending process," said Kelly. "She does NOT get to decide what is or is not in the U.S. Constitution. Her boss (the president of the United States) has spoken for his administration. That's it. The ERA is in! This is a victory."
Rep. Pramila Jayapal (D-Wash.) said Biden's action on Friday honored "the work of generations of activists and organizers for equal rights."
"While we still have much work to do to ensure that the next generation of women has more, not less, rights than previous generations, this is an important declaration," said Jayapal. "Now we must do the work to truly make this the practice of the land."
"Solidifying your legacy on equal rights with a final action on the ERA would be a defining moment for the historic Biden-Harris administration and your presidency," said the lawmakers.
With weeks to go until President-elect Donald Trump is set to take office with a Republican trifecta in the White House, Senate, and House of Representatives, more that 120 Democratic lawmakers on Sunday called on President Joe Biden to take a crucial step toward protecting millions of Americans from Trump's far-right MAGA agenda by ratifying the Equal Rights Amendment.
The ERA was passed by Congress in 1972, and met the requirement for it to be ratified by three-fourths of U.S. states in 2020, when Virginia became the 38th state to ratify the amendment.
Yet during his first term, Trump and the Republican party blocked the implementation of the ERA, claiming that since nearly 50 years passed in between the amendment's passage and the meeting of the ratification requirement, the threshold was not achieved by the deadline set by Congress.
"No Republican would care about" the deadline, said journalist Emma Vigeland, "if roles were reversed."
Citing the U.S. Code, Reps. Ayanna Pressley (D-Mass.) and Cori Bush (D-Mo.)—co-chairs of the Congressional Caucus for the Equal Rights Amendment—led their colleagues in telling Biden that the national Archivist, Colleen Shogan, is required to certify an amendment "when the National Archives and Records Administration receives official notice that a proposed amendment to the Constitution has been approved by enough states."
All Biden has to do to ratify the amendment, which would explicitly outlaw sex and gender discrimination, is direct Shogan to publish the ERA, said the lawmakers.
"Solidifying your legacy on equal rights with a final action on the ERA would be a defining moment for the historic Biden-Harris administration and your presidency," wrote the representatives, including Reps. Alexandria Ocasio-Cortez (D-N.Y.), Maxwell Alejandro Frost (D-Fla.), and James McGovern (D-Mass.).
Earlier this month, 46 U.S. senators joined the call for Biden to ratify the ERA.
As Trump has bragged about his hand in the U.S. Supreme Court's overturning of Roe v. Wade and Republicans have advocated for a national abortion ban, reproductive right advocates have said that after being officially added to the U.S. Constitution, the ERA could be invoked by judges to overturn anti-abortion laws.
In Utah, a state-level ERA was invoked in September to place an abortion ban on hold.
"A constitutional guarantee against sex discrimination would strengthen the protection of reproductive rights, ensuring that people have the right to make decisions about their own bodies without political interference or unequal treatment," wrote the lawmakers.
The signatories noted that portions of the Civil Rights Act and Education Amendments protect people from government-based sex discrimination, but gender equality is still "vulnerable to changes in the political landscape, judicial interpretations, and shifts in public opinion" because the Constitution does not explicitly protect it.
"By adding the ERA to the Constitution, it would establish an unambiguous guarantee that sex-based discrimination is unconstitutional," wrote the lawmakers. "The ERA would help eliminate gender-based pay gaps, improve workplace protections, and ensure that gender biases no longer affect hiring, promotions, or job security. With the ERA enshrined in the Constitution, people who experience sex-based discrimination would have a clearer legal path to challenge discriminatory laws or policies. California's state ERA did just that, securing protections for women in the workforce and ensuring equal treatment in education and healthcare."
By directing Shogan to ratify and publish the ERA, they added, Biden would be throwing his unequivocal support behind an amendment supported by 78% of Americans, according to a 2020 Pew Research Center poll.
Biden said on August 26, Women's Equality Day, that he has "long supported the ERA" and called on Congress "to act swiftly to recognize ratification of the ERA and affirm the fundamental truth that all Americans should have equal rights and protections under the law."
But by simply "directing the archivist to publish the ERA," said the lawmakers, Biden would "leave an indelible mark on the history of
this nation, demonstrating once again that your legacy is one of expanding rights, protecting freedoms, and securing a more inclusive future for all Americans. We urge you to take this final, transformative step toward ensuring the full promise of equality for every person in the United States."
"There is no excuse for leaving us all unprotected," said one advocate.
Emphasizing that the Equal Rights Amendment is the only proposed constitutional amendment that has yet to be certified, 46 U.S. senators have joined the growing national call for President Joe Biden to ensure the proposed statute is part of the Constitution when he leaves office in January.
Reporting on the letter on Tuesday, the Virginia-based publication Style Weekly noted that the state's two Democratic senators—Sens. Mark Warner and Tim Kaine—joined almost the entire Democratic caucus in sending the letter to Biden on November 22. Independent Sens. Angus King of Maine and Bernie Sanders of Vermont signed the letter, but Sen. Joe Manchin (I-W.Va.), who also caucuses with the Democrats, did not.
The ERA was passed by Congress in 1972, and was immediately ratified by 35 states. It took nearly five decades for the amendment to be ratified by three-fourths of U.S. state legislatures, with Virginia becoming the 38th state to ratify it in 2020.
Despite the amendment meeting the ratification requirements, Biden has yet to direct the national archivist, Colleen Shogan, to certify the ERA and publish it in the Federal Register, which would formally cement it as part of the U.S. Constitution.
Once published, the amendment would guarantee legal equality between men and women, and reproductive rights advocates have said it could be invoked by judges to overturn anti-abortion rights laws that have been passed by Republican-controlled state legislatures across the country—an urgent issue as President-elect Donald Trump's second term in office with a GOP-controlled Congress draws near.
"As you are keenly aware," wrote the senators, "after nearly 50 years under the protections of Roe, more than half of all Americans have seen their rights come under attack, with access to abortion care and lifesaving healthcare varying from state to state. A federal solution is needed, and the ERA is the strongest tool to ensure equality and protect these rights for everyone. It would establish the premise that sex-based distinctions in access to reproductive care are unconstitutional, and therefore that abortion bans—which single out women for unfair denial of medical treatment based on sex—violate a constitutional right to sex equality."
The senators noted that state-level equal rights amendments have already been used in Connecticut, New Mexico, Pennsylvania, Utah, and Nevada to protect against "legislative infringements on women's reproductive freedom."
The letter was reported ahead of a virtual town hall scheduled for Tuesday at 7:00 pm ET, when Sen. Kirsten Gillibrand (D-N.Y.) is scheduled to speak about the ERA.
The town hall was organized by the Biden Publish the ERA Alliance, which consists of 20 non-partisan advocacy groups including Doctors for America, Free Speech for People, and the League of Women Voters.
Organizers are also planning rallies in Washington, D.C. on Wednesday and next week.
Kati Hornung, co-founder of Vote Equality U.S. and a leader in the grassroots effort that pushed Virginia to ratify the ERA, told Style Weekly that 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 Shogan, to do her job," she said. "One hundred seventy 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."
"At first glance laughable, this is a very ominous preview of what will be far vaster self-censorship and reality distortion that... entities will engage in if Trump wins," warned one journalist.
Historians and other critics are responding with fierce condemnation to this week's Wall Street Journal reporting that "U.S. Archivist Colleen Shogan and her top advisers at the National Archives and Records Administration, which operates a popular museum on the National Mall, have sought to de-emphasize negative parts of U.S. history."
Win Without War president Stephen Miles said Thursday that "this is beyond shameful by the National Archives. Preemptively self-censoring and hiding essential parts of any honest telling of American history in an effort to protect its budget is a supreme dereliction of their mission."
Others slammed the reported conduct by Shogan, an appointee of Democratic U.S. President Joe Biden, and her advisers as "disgraceful" and "totally unacceptable."
Shogan had her initial Senate confirmation hearing in September 2022, around six weeks after the Federal Bureau of Investigation first raided Mar-a-Lago, the Florida residence of former President Donald Trump, the Republican nominee now facing Vice President Kamala Harris in the November 5 election. That federal case against Trump—which is still playing out in court—began with the National Archives discovering he had taken boxes of materials.
The Biden appointee is now responsible for a $40 million overhaul of the National Archives Museum—home to the Bill of Rights, Constitution, and Declaration of Independence—and the adjacent Discovery Center. Current and former employees expressed concerns about various changes to both spaces in interviews with the Journal, which also reviewed internal documents and notes.
"Visitors shouldn't feel confronted, a senior official told employees, they should feel welcomed," according to the newspaper. "Shogan and her senior advisers also have raised concerns that planned exhibits and educational displays expected to open next year might anger Republican lawmakers—who share control of the agency's budget—or a potential Trump administration."
Responding on social media Thursday, Mary Todd said that "as a historian, I am gobsmacked by this. History should make you uncomfortable."
As the Journal reported:
Shogan's senior aides ordered that a proposed image of Civil Rights leader Martin Luther King Jr. be cut from a planned "Step Into History" photo booth in the Discovery Center. The booth will give visitors a chance to take photos of themselves superimposed alongside historic figures. The aides also ordered the removal of labor union pioneer Dolores Huerta and Minnie Spotted-Wolf, the first Native American woman to join the Marine Corps, from the photo booth, according to current and former employees and agency documents.
The aides proposed using instead images of former President Richard Nixon greeting Elvis Presley and former President Ronald Reagan with baseball player Cal Ripken Jr.
After reviewing plans for an exhibit about the nation's Westward expansion, Shogan asked one staffer, Why is it so much about Indians? according to current and former employees. Among the records Shogan ordered cut from the exhibit were several treaties signed by Native American tribes ceding their lands to the U.S. government, according to the employees and documents.
"Shogan and her top advisers told employees to remove Dorothea Lange's photos of Japanese-American incarceration camps from a planned exhibit because the images were too negative and controversial," the Journal detailed. Additionally, in an exhibit about patents, the example of the contraceptive pill was swapped for television, though a Shogan aide had proposed the bump stock, a gun accessory.
Employees further criticized Shogan for giving an internship to the niece of Republican Texas Congressman Pete Sessions and inviting former First Lady Melania Trump to speak at a naturalization ceremony. The National Archives declined to make the appointee available for an interview and said in a statement that "leading a nonpartisan agency during an era of political polarization is not for the faint of heart."
Current Affairs' Nathan J. Robinson wrote Thursday that "essentially, the National Archives Museum is becoming a tribute to (supposed) American greatness, rather than an honest account of all aspects of our history. It might be surprising that this is occurring under a Biden appointee, but it's clear that Shogan is intensely worried about being accused of partisanship."
"Of course, trying to appease the right is a fool's errand, because the right is never going to say, 'Oh, actually, the Biden-appointed archivist is quite good at her job and very fair-minded,'" Robinson argued. "They consider anything that doesn't fully support their agenda to be pernicious leftism, so Trump will likely still want to replace Shogan with a full-blown MAGA Archivist who puts up exhibits honoring the great contributions of real estate developers to American history, and builds a shrine to the memory of Ronald Reagan."
"The correct stance for an archivist is to be committed to telling a truthful story that reflects what actually happened, even if this makes some people uncomfortable because there are truths they would rather block out of their understanding of the country's past," he added. "Librarians, archivists, curators, and historians all have essential work to do in guarding the truth, and making sure it is not replaced with mythology. The National Archives story shows how little we can count on liberals to maintain their commitment to this mission in the face of right-wing pressure."
Some people in those fields were among those forcefully speaking out against Shogan this week and even calling for her to resign or be fired. David Neiwert, author of The Age of Insurrection: The Radical Right's Assault on American Democracy, declared: "This person needs to be shitcanned and these advisers entirely replaced ASAP. She's making a travesty of American history."
Harvey G. Cohen said that "as a historian who has spent months in the National Archives, I say (not lightly) this U.S. archivist should [be] fired. The National Archives should [be] concerned [with] preserving and presenting the truth—nothing else. This is what historian Timothy D. Snyder calls 'anticipatory obedience.'"
Others also cited Snyder. Abdelilah Skhir of the ACLU of Florida posted on social media a screenshot from his book On Tyranny: Twenty Lessons from the Twentieth Century:
Former Obama administration official Brandon Friedman described the reported conduct at the agency as "a textbook example of obeying in advance," and Philadelphia Inquirer columnist Will Bunch similarly called it "another shocking example of obeying fascism in advance."
Some readers of the newspaper used the reporting to sound the alarm about Trump and his influence over the Republican Party ahead of next week's elections, during which U.S. voters will pick the next president and which party controls each chamber of Congress.
"The Trump/GOP obsession with whitewashing U.S. history has extended to intimidating public agencies like the National Archives," said Charles Idelson of National Nurses United. "That's another characteristic of authoritarian/fascist rule."
Journalist Mehdi Hasan called the reporting "insanity," adding: "This is what cancel culture and this is what snowflakes actually look like. It’s all *Republican*."
Jacobin's Branko Marcetic said that "at first glance laughable, this is a very ominous preview of what will be far vaster self-censorship and reality distortion that fearful [government] agencies, companies, other private entities will engage in if Trump wins."
"If this is what just one careerist civil servant does out of cowardice at merely the *potential* of a Trump presidency," Marcetic warned, "you can imagine what might happen if and when he actually does."