A Trump-Era Memo Is Blocking The Equal Rights Amendment From Being Ratified Today

The Equal Rights Amendment, which ensures women have equal protections under the law, should become the 28th Amendment of the Constitution this week.
Supporters of the Equal Rights Amendment march in Portland, Maine, in August 1980.
Supporters of the Equal Rights Amendment march in Portland, Maine, in August 1980.
Gordon Chibroski/Portland Press Herald via Getty Images

The Equal Rights Amendment, an addition to the U.S. Constitution that would ensure women have equal protections under the law, was first conceived nearly a century ago. It wasn’t until 1972 that Congress finally passed it, allowing states to ratify the amendment one by one. The country needed 38 states to ratify the ERA and ― even though it took nearly 50 years ― Virginia became the 38th state to approve the amendment in 2020. After the final state’s ratification, the ERA should go into effect two years later.

Thursday marks the second anniversary of Virginia’s ratification, meaning the ERA should become the 28th Amendment of the U.S. Constitution.

But a memo from the Trump administration’s Department of Justice stands in the way.

“Today is the two-year anniversary of Virginia becoming the 38th and final state needed to ratify the Equal Rights Amendment, making it the law of the land. 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,” Rep. Jackie Speier (D-Calif.) told HuffPost in a statement Wednesday evening.

The 2020 Justice Department’s Office of Legal Counsel released a memo weeks before Virginia ratified the amendment, stating that the ERA resolution expired after its 1982 deadline and that any state ratification that happened after 1982 was null.

“We conclude that the ERA Resolution has expired and is no longer pending before the States,” the memo says. “Even if one or more state legislatures were to ratify the 1972 proposal, that action would not complete the ratification of the amendment, and the ERA’s adoption could not be certified under 1 U.S.C.”

Under instruction from the Trump administration’s Justice Department, the National Archives and Records Administration declined to publish the ERA to the Constitution despite it achieving the necessary steps. The Trump administration effectively killed the ERA and told advocates to start the entire process from scratch after decades of work.

Speier and fellow Congresswoman Carolyn Maloney (D-NY) introduced a House Resolution on Thursday urging Congress to acknowledge that the ratification of the Equal Rights Amendment is valid.

“It is the sense of the House of Representatives that the article of amendment to the Constitution relating to the equality of rights (commonly known as the ‘Equal Rights Amendment’), duly proposed by 2/3 of each House of the Congress and ratified by more than 3/4 of the several States, has met the requirements of the Constitution and become valid to all intents and purposes as a part of the Constitution, and shall be known as the ‘Twenty-Eight Amendment to the Constitution,’” reads the resolution, which is shown in full at the end of this article.

On Thursday morning, President Joe Biden called on Congress to pass Speier’s resolution.

“I once again want to express my support for the ERA loudly and clearly,” Biden said in a statement. “I have been a strong supporter of the ERA ever since I first ran for the Senate as a 29-year-old. We must recognize the clear will of the American people and definitively enshrine the principle of gender equality in the Constitution. It is long past time that we put all doubt to rest.”

“It is inexcusable that in the year 2022, women and girls still cannot find a guarantee of equality under the law reflected in their Constitution.”

- Sen. Richard Blumenthal (D-Conn.), Sen. Amy Klobuchar (D-Minn.), Rep. Carolyn Maloney (D-N.Y.), Rep. Catherine Cortez Masto (D-Nev.) and Rep. Jackie Speier (D-Calif.)

The Biden administration’s Office of Legal Counsel published a new opinion Wednesday night in response to arguments that the Trump-era memo is holding back the ERA from ratification. The new memo did not withdraw the Trump OLC’s previous opinion, but did admit that the issue is more complicated than the Trump-era opinion stated.

The new OLC effectively deferred the issue to Congress and the courts, adding that the 2020 opinion “is not an obstacle either to Congress’ ability to act with respect to ratification of the ERA or to judicial consideration of the pertinent questions.”

Although the deadline for ratification did pass in 1982, supporters of the resolution argue that the expiration is arbitrary because Congress has the power to extend or remove deadlines. The new OLC opinion signals that the Biden Administration’s DOJ seems to agree.

Experts and scholars point to several other reasons that the 2020 memo should be thrown out, including that Article V of the U.S. Constitution does not mention anything about deadlines. And although the 1982 expiration date was included in the preamble of the ERA, it’s not included in the text that was ratified by 38 states. Separately, the 27th Amendment, which prohibits laws that change a congressional lawmaker’s salary right before an election, was added to the Constitution 200 years after it was first proposed. Additionally, some critics of the ERA often point out that five states rescinded their ERA ratification in the last decade, but the 14th Amendment was later passed even though two states attempted to rescind their ratifications.

Democratic lawmakers were angry that a memo from a former administration ― specifically a notoriously anti-woman administration ― is stalling such critical protections for women. Sens. Richard Blumenthal (D-Conn.) and Amy Klobuchar (D-Minn.), as well as Reps. Catherine Cortez Masto (D-Nev.), Maloney and Speier, wrote a letter to Assistant Attorney General Christopher H. Schroeder urging him to withdraw the 2020 Office of Legal Counsel opinion.

“It is inexcusable that in the year 2022, women and girls still cannot find a guarantee of equality under the law reflected in their Constitution. Moreover, the intermediate scrutiny that courts currently apply to laws discriminating on the basis of sex is a judge-made doctrine, subject to the whims of the courts,” the lawmakers wrote.

The ERA simply reads: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” It would be only the second mention of women’s rights in the U.S. Constitution. The one mention now is in the 19th Amendment, which gave women the right to vote in 1920.

“After generations of fighting for the ERA, sex equality deserves a permanent home in the Constitution. A flawed opinion from the OLC must not be allowed to stand in the way of their rights,” the lawmakers said in their letter to the assistant attorney general. “It is long past time to bring the United States Constitution into the 20th (let alone the 21st) century by expressly recognizing equality on the basis of sex.”

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